Wednesday, April 07, 2010

You cannot buy chamtez from a chiloni after Pesach

A Guest Post by Rafi G

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.

The rabbonim of Tzohar have countered with a psak arguing and saying it is allowed...

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