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Shabbat Parashat Tzav 5780

Ask The Rabbi: Key Accessibility for Non-Jew Who Buys Chametz

Rav Daniel Mann

Question: Mechirat chametz forms ask me to identify someone with access to our key to the chametz’s location if we are away. Is this necessary considering the non-Jew never comes to get the chametz?

Mechirat chametz has developed over the centuries. In the time of the Rishonim, it started to be used as an arguably fictitious sale, i.e., it was clear the sale would be reversed after Pesach (see Terumat Hadeshen I:120; Shulchan Aruch, Orach Chayim 448:3). However, it was expected that the non-Jew would physically remove the chametz from the Jew’s house (Shulchan Aruch ibid.). The current situation in which chametz remains within our homes raises technical problems regarding the laws of kinyan and heightens the ha’arama (deception) issue. The concern that ha’arama disqualifies the sale is one of the major reasons behind a requirement raised by several Acharonim (including the Bach, OC 448 and Shulchan Aruch Harav, OC 448:13) to give the buyer the key to the room that holds the chametz. The Taz (OC 448:4) rules that if the non-Jewish buyer lacks independent access to the room and certainly if the seller has kept the key to a locked room with the chametz within, the sale is invalid. This is likely because of concern about ha’arama (see Noda B’yehuda I, OC 18), but there are other explanations for some poskim’s requirement of giving the key to the buyer: It might be a requirement of the kinyan process or it may remove financial responsibility for the chametz from the seller to avoid bal yeiraeh (prohibition on possession of the chametz he is essentially guarding in his home – see Shevet Halevi VII:55). The consensus among contemporary poskim is to not require giving the key. The Noda B’yehuda (ibid.) posited that the Taz’s concern that ha’arama could disqualify the sale was overblown because proper actions and words of sale are not undone by unspoken questionable intentions. Furthermore, many say that giving over of a key is less important than it once was. The Biur Halacha (to OC 448:3) says that when a significant amount of chametz is sold and the non-Jew has not yet paid for it, the seller can monitor what is being taken and therefore need not provide free access. Several poskim (including B’tzel Hachochma VI:34) quote the Maharash Engel as saying that when the sale is done through an agent (e.g., the rabbi), not giving the key is not problematic. The Aruch Hashulchan (OC 448:23) and Divrei Malkiel (IV:22) argue that now that one non-Jew buys a whole community’s chametz, it is no longer feasible to give him everyone’s key. Therefore, not doing so is not a sign of ha’arama. However, most of the poskim who do not require giving a key, do require close to instant access to the chametz. Some of them mention allowing the non-Jew to enter the house without permission. Some mention letting the buyer know where he can get to the keys promptly. There is no requirement regarding a standard, financially based sale in which the object remains for a while at the seller’s place, that the buyer must have instant access. If one buys a car from a dealer, must he make the car available 24/7?! As long as the seller does nothing artificial to delay the process there is no legal problem. So too, presumably if there were a legitimate reason that the seller could not leave access to the chametz, the sale would still be halachically effective. Apparently, the sensitivity which caused the requirement of quick access that we find in most contemporary sales forms stems from the general concern that the whole sale is suspect to claims of ha’arama. Let us review – one person buys a huge amount of random chametz, which remains in the buyers’ homes, and the sale will be reversed right after Pesach. So it is logical that if classical poskim required giving the key, that nowadays we should at least give him the ability to get to the key promptly; this easy step gives the sale a more practical feel. Therefore, we should keep the minhag to write a contact person even if it is not fundamentally required.
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