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 Shabbat Parashat Metzora| 5766P’ninat MishpatMechirat Chametz - Will a Delayed Sale Include Newly Acquired Chametz?
We discussed (in Ask The Rabbi) that we may want to delay the effect of mechirat chametz to allow people to use their chametz until the last time possible. For example, a bakery could continue selling challot allday for people who eat them until Shabbat morning. Can someone who bought too much challah on Friday afternoon sell the leftovers with the rest of his chametz? (We are dealing here only with the issues within the realm of monetary law). Let us assume that the rav did the acts of acquisition (kinyanim) with the non-Jew in the morning, but delayed their effect, and that the homeowner and the storeowner both use the same rav (and non-Jew). Will the sale apply to the challot bought between the kinyanim’s performance and taking of effect?
A central question within the laws of acquisition is if one can sell a davar shelo ba la’olam, something that does not exist at the time that the agreement is forged. One of the classic cases is selling next season’s produce of a field or a tree. The kinyan certainly cannot cause a transfer of ownership on that which still does not exist. But can the agreement stand, so that when the produce grows before anyone changes his mind, the sale will take effect then? There is a machloket among Tanaim in this case, and we accept the position that the sale is not valid (Shulchan Aruch, Choshen Mishpat 209:4). There is a related issue, regarding a person who makes an acquisition on something that may exist but is not yet in the possession of the “seller.” Here too, the sale does not take effect, even later (Shulchan Aruch, ibid. 211:1).
Let us return to our case. The sale of the storeowner will not take effect on the challot in question, as at the time it was supposed to take effect, he no longer owns the challot in question. The sale of the buyer should also not work for the challot, as at the time the kinyanim took place, he did not yet own them. The fact that the old and new owners both use the same non-Jew to buy does not help the matter. This is because, regarding the authority to sell, the rav who serves as an agent for each individual seller, cannot do what the individuals are unable to do independently. Let us recall (what we discussed in previous years) that we make several acts of acquisition with the non-Jew, because there is no single one that works unanimously. One of them is to rent the part of the house that stores the chametz and have the non-Jew acquire the chametz by means of the fact that it is found on the property of the non-Jew (kinyan chatzer). That is a kinyan that, if so stipulated, can renew itself at any time, including on Shabbat morning after the Jew put his leftovers in the place that stores the other chametz thathe is selling to the non-Jew. For more reasons than we can deal with here, one may not rely on this possibility. Therefore, a delayed sale will not include chametz bought after the kinyanim were performed.
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