Oasis Songs: Musings from Rav D
April 1, 2016 / 22 Adar II, 5776
Judaism is the living expression of the Jewish people’s encounter with Torah and how we responded to that encounter over the generations. Some of that interchange can be found in history books. More often, the history of that interaction is recorded in our legal tradition. The selling of hametz is one such example.
Hametz is understood to be any of the five grains (wheat, barley, rye, spelt and oats) that have made contact with water for more than 18 minutes. This was the point where observation noticed that the first signs of leavening could occur. The Torah itself strongly states that we may have no hametz during Passover; it adds to that basic prohibition with additional statements, such that we can not possess or own it, nor are we even permitted to see it (Bal Yiraeh U’val Yimatzei).
We find in these multiple prohibitions one of the rare occasions in which our very flexible tradition must take an extremely rigorous approach to eliminating any leavened food items from our homes. Remarkably, we find that many people who are otherwise lax in ritual observance throughout the year are much more careful when it comes to hametz on Passover. Speaking for a moment as a sociologist, this increased level of concern seems to highlight both a love of God and also our commitment to maintaining the symbols of Jewish freedom.
The earliest ways that we kept the Torah’s strictures on hametz provide a window into a different world. Jewish families would get rid of any and all hametz–both in its pure forms (bread, crackers, noodles, sour dough starters etc) as well as mixtures of hametz (ta’arovet hametz). These might include grain-based vinegars and alcohols, and a great many other food items. Our ancestors whose homes were far simpler than ours, would completely consume or destroy what hametz they possessed before Passover.
Anything they found once Passover began or even after Passover, would have been completely destroyed. From a purely Biblical standpoint, this remains the optimal way to observe the holiday. To ensure these terms were observed, the Sages of old also instituted that “hametz she’avar alaiv haPesach“–that any hametz that we kept in our possession during Passover would be forever forbidden after Pesach.
By the time of the Tosefta, a legal work composed around 1800 years ago, we learn that one was also able to sell hametz to a non-Jew. The sale entailed the non-Jew literally removing the hametz items from the home and property of the Jew selling it. As daily conditions changed, however, our kitchens and our pantries became much more varied. Jewish merchants in particular had large stocks of hametz based items in their inventory. To get rid of these items would have proven a huge financial burden, both during the holiday and afterward when they would need to resume making a livelihood.
We have a venerable notion that God has compassion upon our money and doesn’t want us to suffer large financial loss. As a result, special sales were constructed that would fulfill all of the strictures of the Torah (don’t eat, possess or see hametz) without necessitating that large quantities of hametz be removed from Jewish owned warehouses.
Once the law permitted these sorts of commercial transactions, it had to extend the same possibility to regular households. In this way, the shta’ar mekhirah, or sales contract,was born. To spare people from physically removing their hametz, the sale includes the renting of any space where hametz is found, up to and including the surfaces of our pots and pans.
Some people view this sale as a legal fiction. There are two responses to this concern. The first response is that in a certain sense, all law is a “fiction.” It is an abstraction that becomes binding upon us and that is enforceable. The second response is that once we accept the notion that any legal abstraction is “real” and therefore not a fiction, we also have to accept that “loopholes” are an equally valid expression of the law. The sale of hametz is a real sale (let me add that for those individuals who cannot accept this notion, the proper course of action would indeed be to rid your homes of every item that has any form of hametz in it).
What does all this amount to practically? It means that if you fill in, sign and return the attached form to me, I will sell any and all of your hametz on your behalf before Passover. I will also sell your pets, who have a remarkable ability to find and consume hametz, which then becomes your property, just as pets are your property from a Jewish legal perspective (I know, those of you who live with cats are owned by them, but let’s not go there…).
The non-Jew who purchases it will make a down payment at which point the hametz transfers into his possession. This does not end your responsibilities, for as noted above, you are not permitted to see hametz in your dwelling. Thus we have the custom to put all of our pots and pans and scotch and gin and other hametzdik items in closed cupboards or rooms that we will lock or not enter during all of Passover before the sale is completed.
Speaking of pets, just as they can get us into trouble by consuming hametz over Passover, they also get us out of a heap of trouble. Part of the definition of hametz is something that is minimally achilat kelev, something that a dog might eat. What this means practically is that from a strictly halakhic perspective, you don’t need to get rid of your cosmetics during Passover. Nonetheless, there are individuals whose love of God and tradition leads them to find special kosher for Passover makeup and lotions.
At the end of Passover, if the non-Jew has not gotten a full appraisal and paid fair market value for your hametz, the contract stipulates that the hametz will transfer out of his ownership and back to your possession. That means about 2 hours after Passover, you are free to open up those cupboards again and find that last bottle of organically sourced, locally brewed Portland Stout and make a toast that once again, we made it to the other side of the sea in our annual march to freedom.
Chag kasher sameach,