1

Bake Sale: Can a Transfer of Ownership Effect Biur Chametz?

Adapted
from a shiur by Rav Yosef Greenwald

Selling for Tashbisu

Mechiras chametz, the
sale of chametz to a gentile before Pesach to
avoid violating bal yeira’eh uval yimatzai,
appears in the Mishna and Tosefta. But for most of
Jewish history, it was employed only in exigent circumstances. Decrees in
Europe four centuries ago that banned Jews from most professions led to a state
where the Bach, writing in 1630s Poland, observed (O.C. 448:3) that most Jewish commerce was
in liquor. As a pre-Pesach fire sale of a producer’s entire inventory would
mean financial ruin, the Bach permitted a
distiller to sell his supply to a gentile before Pesach, without physical
transfer, and then buy it back after Yom Tov—provided he also sold the
warehouse and gave the buyer the key.

By two centuries ago, the current practice, in which
selling chametz to a gentile through one’s Rav is a standard part of Pesach preparations,
was taking shape.

Despite this, we all still burn chametz on Erev Pesach. Why can’t we employ mechiras chametz to fulfill the mitzva of biur chametz?

There is a dispute between Rabbi Yehuda and the Chachamim in the Mishna (Pesachim 21a) whether
the mitzva of tashbisu s’or mibataichem
requires burning, or if crumbling chametz and
dispersing it in the wind or tossing it into the sea suffices. The basic
Halacha follows the view of the Chachamim
that any means of destruction is valid, although the minhag is that fire is preferred. (For this reason,
when Erev Pesach falls on Shabbos, we flush chametz
down the toilet.) Wouldn’t a sale to a gentile also fulfill the mitzva?

The Minchas Chinuch (9) famously ponders whether one who
owns no chametz must acquire some in order
to destroy it on Erev Pesach. Does tashbisu
require an act of elimination, or simply that one not possess chametz? He concludes that the Torah mandates an act
of hashbasa.

But does hashbasa require
physical elimination, or would a legal act that removes the chametz from its owner’s possession be effective?

The Rishonim say
that one could fulfill the mitzva of tashbisu
with bitul. And they say—with the
notable exception of the Ran—that bitul means making one’s chametz ownerless.

So if bitul, wherein the chametz is untouched but its ownership is changed,
constitutes tashbisu,
why wouldn’t selling it to a gentile qualify as well?

It would appear that the answer is this: Tashbisu requires that one treat his chametz as worthless, something he no longer values.
(See, for example, the bitul formula, in which we
declare that our chametz “should
be batel and be ownerless like the
dust of the earth.”) Both physically destroying chametz and relinquishing ownership of it via pronouncement
demonstrate that the chametz no
longer holds value for its owner. But selling would indicate the opposite.
Offering an item for sale shows that the seller values it and expects that
others will do so as well. He sells his chametz to
exchange it for another valuable commodity, money. One who sells his chametz certainly won’t violate bal yeira’eh uval yimatzai, because he no longer
owns it. But neither will he fulfill tashbisu if
it requires an eliminative act.

The Rashash (Pesachim 21b) suggests that one could
fulfill tashbisu on Erev Pesach by
eating chametz and letting his gastric
juices consume it. But we don’t find that option mentioned by the Rishonim and Acharonim,
and this could be the reason: Eating something does not demonstrate that one
doesn’t value it, it does the inverse.

A similar argument is made by the Chasam Sofer. The Tosefta
(Pesachim 2:12) discusses the case of a
man who finds himself on a ship before Pesach in possession of chametz. Were he to destroy his chametz provisions, he would starve before reaching
land. The Tosefta says he should sell or gift it to a gentile passenger, but it
adds the caveat (per the text of the Geonim) that one must not engage in pretense; the
sale must be real. The Tevu’os Shor (Bechor Shor, Pesachim 21a) offers a novel
understanding of contemporary mechiras chametz: It
is indeed ha’arama, a pretense, but because
bitul eliminates the possibility
of Biblical violation (Pesachim 4b, 10a), the prohibition of chametz is only mideRabbanan,
and a ha’arama-based sale is
sufficient on the deRabbanan
level as a reinforcement of one’s bitul. The Chasam Sofer rejects
this understanding, arguing, as above, that the sentiment that underlies sale
is the opposite of that behind bitul: Bitul means I don’t
value the chametz, selling means I do. The sale of one’s chametz, far from  fortifying his bitul, would undermine it.

May all of Klal Yisrael enjoy
a chag kasher v’samayach.