Apr 7, 2010

Interesting Psak from Rav Elyashiv: you cannot buy chametz products, after Pesach, from a secular Jew

Rav Elyashiv is being quoted by his confidante, Rav Efrati, as having issued a psak that one should not buy chametz after Pesach from a chiloni Jew, even when he sold his chametz.

The reasoning for this issur is that the chiloni has no interest in selling his chametz - he is simply doing it to fulfill a religious requirement being imposed on him. Because he has no actual intention to really sell the chametz, the sale is a farce and does not take affect. If the sale is invalidated, that means any chametz he owns is retroactively considered chametz that was owned by a Jew on Pesach, which is not allowed to be purchased.

The kashrus organizations that dealt with the selling of the chametz actually considered this problem and say they had resolved it by using a different text in the sale. The altered text gave this sale a much more powerful legal status to the sale, thus ensuring that the seller of the chametz actually had a level of intent to really sell the chametz.

Despite this, Rav Efrati says in the name of Rav Elyashiv that the problem remains and one should not buy chametz from a chiloni Jew. (source: Ynet)

What I find particularly strange about this is how it compares to shmitta. During the shmitta year, the main argument, or one of them at least, against the hetter mechira, in any form, was that no land owner actually wants to sell his land. They don't want the non-Jew to actually process and complete the purchase of the land. Therefore, with the intention to not really sell the land, the sale cannot be valid.

Fine. However, when the inevitable comparison to mechiras chametz always came up, and the question was raised why it worked for chametz but not for land, the answer given was that anybody would be happy to sell his chametz, if the non-Jew would want to complete the transaction. Land, not. The difference means that the sale of chametz works, because they are happy to sell, while the sale of land doesn't work, because the owner is hoping ti doesn't actually happen.

So now Rav Efrati, in the name of Rav Elyashiv, is really saying that this difference is not even true. Really chametz and the sale of the land are exactly the same.

And, why does he think that the seller is not interested in selling his chametz? Wouldn't any store owner be happy if the non-Jew came in and said he wanted to take all the chametz items and pay the full price for them? I would think any store owner would be ecstatic about that happening.

28 comments:

  1. For one thing, I am skeptical about anything said in Rav Elyashiv's name. I ignore it all. There is no longer any way to reliably know what is really his explicit opinion, and what is not.

    To the matter at hand, this is really counterproductive and undermines kashrut for the broader public. Non-observant store owners will now respond with 'fine, why should I bother anymore?', and the average non-haredi consumer will lose sources from which to buy. Relations among various Jews will be further limited, and the general public will be the losers; while the haredi elite sit back in their enclaves oblivious and not caring about the effect they had on the general welfare.

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  2. Great point about the store owner being happy to sell his chametz.

    What about dati individuals? Really, aren't we also only selling our chametz to fulfill a religious requirement being imposed on us? How would I feel if the non-Jew decides to complete the sale of your chametz? I would not be so happy.

    So I guess everyone's chametz sales are invalid, and therefore you cannot eat at anyone's home after Pesach. Shucks, we were supposed to have guests this Shabbos....

    BTW, I don't understand this aspect of one's real intent invalidating a sale. If you went through the maneuvers of the kinyan, then why does this matter? Say someone falls on hard times and needs to sell his house. He doesn't REALLY want to sell his house, but he has to. So he lists it and you're the buyer. You signs a contract together and you close. 6 months later his Uncle Shloimie dies and leaves him $2M. So he knocks at your front door and demands his house back, claiming that the sale was invalid because he didn't REALLY want to sell the house. What would you say?

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  3. I think Mordechai's point goes to the greater Haredi-DL argument regarding how much we should care about other Jews performing the mitzvot, and then effectively how restrictive our practices should be.

    This of course has popped up a million and one times over the past few years (shmitta, gerus, etc), and is now one of the main ideological differences between the communities.

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  4. "not caring about the effect they had on the general welfare."

    So you would prefer Rav Elyashiv to sit back and allow people to eat chametz that in his opinion is chometz she'avar alav hapesach?

    That would make him care more about the general public?

    He would say (if he considered your issue a real problem) that by having his psak publicized, he is in fact being quite caring. No one asked you to follow what Rav Elyashiv says. Some people DO care, however, and will be quite happy that the Rov is so caring as to let everyone know that if you wish to follow the Rov's rulings, you should avoid this chometz.

    Guess it depends on how you look at things. If you think Rav Elyashiv has nothing better to do with his time than to sit around and think how he can mess everyone over, then I guess you would come up with what you think. If you think that he would much rather be learning than "publicizing" - note that he doesnt really publish or teach much, so thats saying how much he is interested in his publication - then you would realize that all he is doing is answering a question that someone asked.

    If you dont want to follow, who asked you to? But why is it always the same people who find small little complaints about everything Rav Elyashiv says, holds, thinks and does?

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  5. "How would I feel if the non-Jew decides to complete the sale of your chametz? I would not be so happy.

    So I guess everyone's chametz sales are invalid, and therefore you cannot eat at anyone's home after Pesach"

    Ummm, I dont know about you, but where I live (in RBSA) the people take the mechira very seriously. Most get rid of their chometz and only sell "just in case" and feel it is a real sale. But, yes, I agree, if you view mechiras chometz as a religious action, then correct, I wouldnt eat in your home

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  6. Earn money from home...April 07, 2010 9:47 AM

    Rafi, unless you hear something directly from Rav Elyashiv, Shlita, it is probably not worth quoting. Today, most things quoted in the name of this or that Gadol has been misrepresented by the messenger or messengers. Broken telephone at best. Manipulation at worst. Case in point, the video you posted some weeks ago. Unless you actually viewed such a video, can you imagine the spin on that conversation. Thanks.

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  7. "How would I feel if the non-Jew decides to complete the sale of your chametz? I would not be so happy."

    OK, first of all, change the word "your" to "my" which is what I meant. Got missed in editing.

    Ummm, I also take it very seriously, since I don't want to be oveir the issur of baal yiraeh, baal yimatzeh. That is the reason why I sell my chametz which is a religious requirement. Is there another reason why you sell yours? Are you going to sell all your chametz in Novemeber too?

    If the non-Jew would decide to keep my chametz, or if he were to show up at my house during Pesach to claim his property, then I would most certainly give it to him, since after all, he is the owner. But that doesn't mean I'd be happy about it.

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  8. I think this is a disgusting categorization of the vast majority of religiously minded but mostly non-observant Israelis.

    How many of them eat chametz on Pesach? I was under the impression that even most stores run by "chilonim" in Israel do not sell chametz. Is this only because of one or two chance-religious customers in the neighborhood? No, many non-religious Israelis observe the issur of not consuming chametz on Pesach.

    Did Rav Efrati give guidelines for who is chiloni and who isn't? Or is it anyone who doesn't wear a kippa or whose wife doesn't cover her bicepts must not "really" care about the subset of halachot they do observe?

    What an insult to the common Jew.

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  9. Jeremy- exactly. Charedim really don't care about whether chilonim are performing mitzvot or creating an environment where they're not sinning.Just not there agenda.

    wanna saab: i predict the next "psak" will be invalidating mechirat chametz altogether

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  10. Would this mean that anything in the Osem storehouses is a problem also?

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  11. Not sure what is the surprise about this psak. One of the big poskim in Jerusalem told me exactly this 10 years ago.

    For the sale to work you need gemiras daas - if you do not think that it is a proper sale (and all you think you are doing is some halachic trick) then it does not work. Do chiloni shop owners really believe that it is a proper and valid sale?

    The same posek told me that he buys as much chometz as possible immediately after pesach from a shop with a frum owner. For later purchases he makes sure to check barcodes of products to ensure that he is not eating chometz sheovar olav hapesach.


    Rafi the clear difference with heter mechira is that even a frum person would not really want to sell the land (for example because of the issur of lo sechonaim).

    Your astute friend.

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  12. I think there is a teshuva from the MABIT(?) that you can use chometz sheavar alav hapesach from a yisrael mumar (even without mechirat chametz).

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  13. Assuming that Rav Elyashiv actually said this, it would be interesting to learn how he reconciles this with the gemara about "taluhu v'zavin" which states that even forced sales are valid if the full price was paid.
    If I remember correctly the reasoning of the gemara is that most sales are forced by financial pressures rather than a true desire to be rid of the object.

    There was an article in the Wall Street Journal about a kosher restaurant (frum owner) that must, by terms of its lease, be open on business days during Pesach (the non-Jewish employee who buys the store does, as I understand it [and I may not, I have no inside info], gets the profits from those days). The article described the difficulty of structuring a sale that would meet the full requirements of bal yeraeh and bal yimatzei without triggering undesirable tax consequences.

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  14. If you look at videos of how askanim ask questions to Rav Elyashiv shlit'a (http://qurl.com/4lm5m) it's clear what happened here:

    An askan came to Rav Elyashiv and asked about mechiras chometz by a chiloni store-owner. Rav Elyashiv said that if he sold it's fine. Then the askan pushed with something like "but if he's chiloni, what if he really didn't take the sale seriously?" The askan then continued to push Rav Elyashiv into giving the psak he was looking for.

    But while we're at it, according to this psak, is She'eris Yisrael an invalid Bais Din because they entered into kinyan mechiras chometz with chiloni store-owners that are invalid kinyanim?

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  15. What an odd video. The overall style of the questioner seems as if he's a grade school Rebbi preparing Rav Elyashiv to parrot back a series of logic on a test!

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  17. Whether Rav Elyashiv actually said this or not it's something that is basically going to have to be ignored by the masses.

    There are non-orthodox chometz owners throughout the food production and distribution chain. I know the OU (and I'm sure the other Kashrut agencies as well) spends much time and effort in arranging for the sale of this chometz.

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  18. josh werblowskyApril 07, 2010 4:19 PM

    Please see Igros Moshe O.H.4-95,
    who matirs this transaction.
    He follows the Gemara in Chulin 4a,
    AND FURTHER EVEN IF NOT LEV GAMUR IT CANNOT CANCEL A MECHIRA.

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  19. Whether Rav Elyashiv actually said this or not it's something that is basically going to have to be ignored by the masses.

    Not sure why - the general Charedi public already prefers the practice of consuming only products from flour ground after Pesach, and the production and distribution within Israel seems to oblige.

    Unless you want to talk about the little secret that already goes on - the sold chametz is sometimes stored and a few months later sold to that same public anyway when they've stopped checking barcodes etc.

    (In fact I think that community-wide chumra actually could result in the distributors selling some chametz she'avar alav b'Pesach but I don't remember how.)

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  20. To Josh - the Igros Moshe is 4 - 91.

    Rav Moshe does not say that one should or should not buy from a chiloni.

    He does say that the sale is legally valid. However you cannot extrapolate from his teshuvah as to whether or not one should be mehuddar to buy from only a dati shopkeeper. He was not answering this question at all and (as he states in his hakdamah) you should not try and pasken shaylos from his sefer which he does not specifially ask.

    To Shira - indeed the problem of the storing of chametz by the big food producers such as Osem (for distribution in the summer) has been pointed out in the 'charedi' press [mishpacha etc.] over the past few years. This is no longer a well kept secret.

    The even bigger problem (which no-one talks about) is the carriage of non-Israeli chametz items by the Israeli distributors (such as the distributors of Cheerios, or Kellogs cereals). There is nothing stopping the distributors refraining from undertaking the mechiras chametz and then selling these items (with mehudar hechsherim) to the Israeli stores immediately after Pesach.

    Rafi's astute friend.

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  21. I have heard that it is common for chareidi style people, at least in the US, to sell the chametz absorbed in their kitchen utensils before Pesach.

    They can't actually sell their utensils to a nonJew, because the dishes would require tevilas keilim when they bought them back.

    Can anyone tell me that any nonJew would seriously consider purchasing "bliyos" from a Jew before Pesach? How can this be anything other than a sham sale? Or complete idiocy?

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  22. astute - I have not read the teshuva in a while so I will not comment on what he might have said or not. but the discussion is not whether one should be "mehader" and not buy from chilonim. The question was whether their mechira works at all. According to the statement in the name of rav elyashiv, it didnt work at all and it is assur to buy from them - not just a chumra or hiddur. According to what is being quoted in the name of Rav Moshe, the mechira is valid and therefore it is muttar to buy.
    If one wants to be mehader and not buy anyway, that is a different discussion.

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  23. To anonymous
    It is O.H. 4-95.
    I AGREE WITH RAFI G'S COMMENT OF 6:15

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  24. tesyaa, your objection is well founded. Although they didn't use the same language (idiocy), I have heard Rav Belsky and Rav Mordechai Eliyahu yibadel l'haim and others raise this exact objection.

    We don't allow such a stipulation in the sale done in our community.

    But it doesn't really reflect on the alleged instruction from Rav Elyashiv.

    Anon 9:36 AM : this is no 'little thing'. This alleged instruction (I have serious doubts about its veracity) can create hardships and widen the rift in the community of Israel. I don't think that is a little thing. Apparently, Rabbanei Tzohar didn't either. Baruch Shekivanti.

    And yes, I think the ASKANIM l'miniehem have nothing better to do than mess with the public who are simply trying to get on with their daily lives. This and other issues are not at all new. How is it that when Rav Elyashiv and other elder rabbanim were younger and more directly in contact with daily life they didn't come up with such pronouncements?

    The whole thing simply adds to the discrediting of a number of rabbanim who were actually more respected a few years back. More and more people will be ignoring these irrelevant and dubious pronouncements. Really a shame, but inevitable.

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  25. How is it that when Rav Elyashiv and other elder rabbanim were younger and more directly in contact with daily life they didn't come up with such pronouncements?

    Wow good point. After all this particular halacha isn't a matter of discovering how the technology really works....

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  26. this is really counterproductive and undermines kashrut for the broader public. Non-observant store owners will now respond with 'fine, why should I bother anymore?',

    So? If it doesn't work, he didn't do anything.

    Relations among various Jews will be further limited

    Too bad. If the sale doesn't work, being nice about it doesn't really help.

    I think this has a lot to do with the ribbis issue that surfaced nor so many years ago. The courts in this country won't enforce a contract that is for 'religious purposes' only. A hetter iska is considered such, and without special wording will be invalidated. Rav Elyashiv considerers this a problem, unless the parties to the contract do in fact intent to abide by it. Consequently, hetter mechira is invalid. The courts would never enforce it and remove the land from their ownership. Mechiratz chometz is only valid where the seller has full intention to actually release the goods. Can you be sure a chiloni would do that? Frum people most definitely would.

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  27. Why does everything have to asked to Rav Elishiv this is aold practice that has been done for years what changed. Somebody wants to be machmir for himself that is great but this psak is going to hurt many businesses and I very much liek to know if something different happened this year I can't understand why all of a sudden it becoems an issue?

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  28. First of all, there is no psak.

    There is a YNET report that Kvod HaRav Efrati said that Kvod HaRav Elyashiv said something. This is not a psak, it's a report.

    Only those who consider a YNET report to be a totally reliable transmission of fact would consider this anything close to a psak halacha.

    I continue to claim that these are only the words of an askan, who twisted words to get the words from Rav Elyashiv.

    Every store-owner would love to sell his whole stock at store prices. And store-owners this year were even more careful to cover chametz, and many used the computer system that blocked sales to chometz barcodes.

    But my opinion in the past two paragraphs is not relevent given that there is no written psak from Kvod HaRav Elyashiv on the matter. For now, everyone needs to discuss it with a Rav and/or learn through the both the sugya and the metziyus to arrive at a psak.

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