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 Shabbat Parashat Acharei Mot| 5766P’ninat MishpatMechirat Chametz - The Ability to Delay the Sale
We saw last week the advantage of delaying mechirat chametz’s taking effect in order to allow the seller more time to decide what to include in the sale and what not, in a year like this when Erev Pesach is on Shabbat. From the perspective of the laws of transactions (kinyanim), this causes some complexity, which we will now address.
In order for a kinyan to take effect on delay, the kinyan must leave a mark that lingers on at that time it is to take effect. Otherwise, it does not work because of kalta kinyano (the kinyan has ceased). We use several kinyanim at mechirat chametz to try to overcome the doubts that exist regarding the use of each, individual kinyan in this context. Some, but not all, of the kinyanim are the type to linger on. Let us give a couple of examples. The kinyan of sh’tar (a document) can work after time as long as the document is intact at the time that the transaction is to take effect (Rama, Choshen Mishpat 191:4). However, the kinyan of sudar (symbolic transfer of a utensil to finalize an agreement) is of significance only at the moment it is done and does not last into the future. Regarding kinyan kesef (giving money) it would appear that it should work after time, but there are some indications that it may not always work after time, at least not in this context (see ibid. and Teshuvot V’hanhagot III, 117). All in all, it is not as halachically safe to resort to a delayed kinyan, given that not all of the kinyanim we use to remove doubt are valid. Nevertheless, there are poskim who support the possibility of a delayed sale in our context (see the discussion in Har Tzvi, OC 126).
The gemara (Ketubot 82a) says that there is no problem of kalta kinyano when the transaction is retroactive to the time of the performance of the kinyan. In fact, the Da’at Torah’s (on Orach Chayim 444:1) suggestion for mechirat chametz this year is for one to sell the chametz that remains in his possession on Shabbat morning, retroactively, from the time of the acts of kinyan. This raises a different issue. When one wants something to take place retroactively in a way that the matter’s parameters are decided only later, there is a question of whether bereira (retroactive determination) works. We generally rule that bereira works only regarding matters of rabbinic law, not matters that need to work on the level of Torah law (Beitza 38a). Although it appears that we need the chametz to be sold on the level of Torah law, the situation may allow for a retroactive kinyan. The Rashba (Shut II, 82) says that bereira is a problem only when the matter must take effect retroactively. According to the Da’at Torah, the reason to have the kinyan take effect retroactively is to avoid a kinyan on Shabbat, which is only a rabbinic problem. Regarding that rabbinic issue, we say that bereira is not a problem, and the identity of the chametz to be included in the sale can be determined retroactively.
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