This conflicted attitude is played out in the halakhic literature. True, the Tosefta[1] does speak of a situation in which a Jew, finding himself stuck at sea as Pesach approaches, transfers ownership of his chametz to a non-Jewish fellow traveler, and reclaims it after the holiday.  However, the impression is one of an unplanned, non-ideal, and isolated incident; the current reality, where entire communities plan in advance to preserve their stocks of chametz through annually scheduled arrangements with their local rabbi, appears to be a significant expansion of the depicted scenario.

A more commonly heard complaint is that the sale seems like a joke: the chametz does not leave the original owner’s residence (something some poskim insisted should happen[2]); the purchaser does not appear interested in actually taking possession of the chametz;[3] rarely if ever does the seller have to open his doors and cabinets to the new owner of his food; and the chametz invariably reverts to its original ownership immediately after Pesach.  

Rabbenu Yerucham[4], commenting on the Tosefta’s ruling, asserts that one who utilizes this option should not engage in ha’aramah (evasion of the halakhah). The Beit Yosef[5] questions this requirement: the entire plan, appears to be a ha’aramah, and yet, it is permitted!

Persistent Controversy

Controversy over the sale has persisted over the generations, despite its increasing usage, and while some of the objections focused on the more problem-fraught method of a rabbi purchasing his congregants’ chametz in order to sell it to a non-Jew[6], it is clear that some great rabbinic authorities[7] objected even to the more prevalent current practice, where the rabbi does not purchase the chametz but rather acts as an agent to sell it to the purchaser.[8]

The Bekhor Shor[9] asserts that mekhirat chametz is indeed a ha’aramah, and for that reason is ineffective against a biblical prohibition of owning chametz. He assumes, however, that the chametz at hand is only subject to a rabbinical prohibition, because, as the Talmud[10] states in the context of bedikat chametz, the bitul of chametz is effective to negate the Torah prohibition.[11]

However, many achronim[12] challenged that premise, noting that the chametz that is negated is not the same chametz as that which is sold, and thus a biblical prohibition would still attach; as such, one who would utilize mekhirat chametz must be comfortable that it is effective on a Torah level.[13]

Indeed, there are many who have adopted a policy not to sell chametz gamur, presumably reflecting a lack of confidence in the sale’s efficacy together with the assumption that the chametz in question is not batel.[14]  Nonetheless, the acceptance of mekhirat chametz in all forms is widespread, with Jews purchasing chametz knowing in advance it will be sold, and some poskim even considering the question of whether it should be an obligation to sell one’s chametz as part of the appropriate safeguards for Pesach.[15]

In Defense of Mechirat Chametz

Perhaps an explanation can be offered for the embrace by so much of observant Jewry of the embattled mekhirat chametz. It would begin by considering the prohibitions of bal yeraeh and bal yematze that the sale is meant to address. The Ran[16] asserts that these prohibitions serve as a kind of “syag min haTorah”[17]: in essence, the Torah is really primarily concerned that we should not eat chametz. However, if chametz is kept in one’s possession, there is a great risk that in a distracted moment, or in the course of a semi-awake midnight snack, one might prepare himself a meal of the normally-permitted chametz. To avoid this eventuality, all chametz must be removed from one’s possession.

By embracing mekhirat chametz, Klal Yisrael is declaring that there are two things that can prevent them from eating chametz: not having any, and the transgression of gezel. If the chametz is in one’s house, but is off-limits because of the prohibition of stealing, that is enough to keep the Jews away from its consumption. Therefore, it doesn’t matter whether or not the chametz will ever be picked up by its purchaser, or whether or not the sale will be reversed after Pesach. All that does matter is that during Pesach, the chametz legally belongs to another; that is enough to make sure it will be untouched. In other words, Klal Yisrael is willing to stake its “kareit” on its commitment to avoiding theft.

In this context, it is worth noting the words of the Semag[18] who states that the exile has gone on too long because of deficiencies in honesty and integrity in dealing with the nations of the world.  When that problem is present, redemption can not take place; it would be a chilul Hashem for G-d to redeem a nation that is perceived as immoral. As such, perhaps the practice of mekhirat chametz is a conscious decision, at a time when we focus on geulah, to enter into a monetary relationship with a non-Jewish person, and to honor the integrity of that relationship with one’s spiritual life. Such an attitude, taken with proper seriousness, might just bring the geulah, one step at a time.

[2] See Terumat HaDeshen 119 and Bach, OC 448, s.v. katav.

[3]See Machatzit HaShekel, O.C. 448:4; Responsa Chatam Sofer, YD 310; Responsa Li-Horot Natan, II, 27

[4] Netiv V, part V, 46a

[5] Orach Chaim  448:5

[6] See, for example, R. Uri Shraga Feivush Toubish, Reponsa Uri Vi-Yish’i, 121.

[7] See, for example, Responsa Shoel U’Meishiv, II, 2:77.

[8] On this distinction, see also R. Ya’akov Ariel, Resp. Bi-Ohalah Shel Torah, I, 59.

[9] Pesachim 21a

[10] Pesachim 10a.

[11] Others who accepted this premise include Ketzot HaChoshen, 194:4; R. Meshulam Igra, Responsa 39:1, and R. Natan Note Kahane, Resp. Divrei Rinanah, 30 (and see the extensive references in the footnotes, # 11, by R. Yitzchak Hershkowitz). See also R. Yitzchak Shmuel Shechter, Responsa Yashiv Yitzchak X, OC 9.

[12] See for example Mekor Chaim 448:9; see the lengthy analysis of Responsa Minchat Yitzchak, VIII:41.

[13] The Kogalglover Rav offers a creative explanation of the Bekhor Shor’s view in his Responsa Eretz Tzvi, I, 84.  

[14] See R. Asher Weiss, Haggadat Minchat Asher p. 280.

[15] See Responsa Li-Horot Natan VI, 25

[16] Pesachim 1a, s.v. u-mah. See Peri Megadim, Petichah to Pesach 1:9.

[17] See R. Yosef Engel, Lekach Tov, 8:1

[18] Mitzvot Aseh #73

By Daniel Z. Feldman

 Halakhic Inquiries Regarding Yosef’s Behavior

The release of Yosef from prison, a moment of great drama and emotion, has also been the subject of halakhic inquiry. Some rishonim note, in light of the fact that his release took place on Rosh HaShanah[1], it is surprising that Yosef shaved at that time[2]. Rashi comments that the shaving was done because of kevod ha-malkhut; nonetheless, working under the assumption that the Avot (and, apparently Yosef included) observed the entire Torah before it was given, it would be expected that he would refrain from shaving on Rosh Hashanah. This question prompted an extensive literature in later generations, analyzing the halakhic considerations from every angle - is shaving a violation mi-d’orayta of Hilkhot Yom Tov; perhaps the action is to be considered a melakhah she’einah tzrichah li-gufah; can it be excused under his unique circumstances; what role does kevod ha-malkhut play in the question; perhaps the situation is considered pikuach nefesh; perhaps it is relevant that Yosef was presumably shaved by someone else, etc.[3]  

Kevod Ha-Malchut

The Chatam Sofer, for one, seemed bothered by the very question itself[4]. The notion of the Avot keeping the Torah, he argued, was a fine and important idea, but not an actual obligation. Kevod Ha-Malkhut, by contrast, is a genuine din, one that had to be observed even before the giving of the Torah, by force of law.  Thus, kevod ha-malkhut, which was commanded, certainly overrides Yom Tov, which was “eino metzuveh vi-oseh”.

The Chatam Sofer’s comment is itself difficult to understand. Kevod ha-malchut is also a law of the Torah, derived from pesukim[5].  By what logic is this law separated from the other mitzvot of the Torah, which he deems voluntary in the Pre-Sinaitic era, while this one is not?

In considering the obligation of kevod ha-malkhut, R. Simcha Zissel Broide, the late Rosh Yeshivah of the Chevron Yeshivah, posits[6] a number of theories explaining its importance.  Among the five points that he makes is what he considers a fundamental principle of the human personality:  It is crucial for one’s spiritual development that he posses the ability to appreciate great things. One who is jaded and cynical, who views all things with disinterest, is unable to attain any kind of meaningful spiritual maturity. Thus, it is critical to hone one’s awareness of the extraordinary, and the attitude one brings toward royalty is certainly reflective of this vital attribute.

It is interesting to note that there is another (seasonally appropriate) comment of the Chatam Sofer that is also somewhat surprising.  We are in the midst of celebrating Chanukah. We generally assume that Chanukah and Purim, clearly post-Biblical in origin, are observed as chiyuvim mi-de-rabanan.[7] Nonetheless, maintains the Chatam Sofer[8], if one would let the occasions of Chanukah or Purim pass by without any acknowledgement, this would be the wrong thing on a level mi-d’orayta. 

Appreciating Greatness and Majesty

Perhaps the common element between the two statements of the Chatam Sofer – his comment regarding Yosef, and his assertion regarding Chanukah – is the fundamental necessity of cultivating an appreciation for greatness and majesty. One who is unreceptive to the miraculous and the majestic is incapable of approaching the Torah with any potential for success. If one is unmoved by the extraordinary, then the greatest gift of all eternity can fail to move and inspire; not for any internal deficiency in the item, but because of the closed “eye of the beholder”.

This issue is indicated as well by the comments of the Ramban on the pasuk[9] following the giving of the aseret ha-dibrot, when Moshe tells the Jewish people not to be afraid, because G-d has come “ba-avur nasot etchem”. The Ramban understands this in the sense of nisayon, to test the Jewish people, to see if they are capable of feeling an appreciation for the awe-inspiring display that accompanied Matan Torah.

As R. Yitzchak Hutner explains,[10] this “test” was a crucial part of the process of the bestowing of the Torah upon the Jewish people. If the Jews failed to be moved by such a display, then they cannot fulfill their roles as the guardians of the Torah; they will be unreceptive to the infinite treasures of its content, and thus immune to its influence.

In this sense, R. Hutner notes the Maharal of Prague’s interpretation of the Talmud’s statement that the churban ha-bayit took place because the Jews failed to recite Birkhot HaTorah.[11] This passage has long challenged commentators, both because of the apparently disproportional nature of the punishment, and the well-known fact that the Jews of that era were guilty of several other egregious offenses. The Maharal explained[12] that the Talmud is not claiming that the lack of Birkhot HaTorah is the punishable offense; indeed, the churban was provoked by the other offenses committed at that time. Rather, the Talmud’s question was this: since we know that the Jews of that time were involved in the study of Torah, how is it also possible that they were guilty of such transgressions? Should not their Talmud Torah have influenced them toward a more righteous path?

To this, explains the Talmud, it is commented that the Jews of that time did not recite a berakhah on the Torah. They were not awestruck by the experience; they were not moved by the privilege to express gratitude to He who bestowed this great gift. If that was their attitude, they were not in a position to be influenced by the Torah’s content.

The Chatam Sofer is reminding us, in his two comments, that no relationship with Torah can be complete without a sense of the majestic and the miraculous. Before the giving of the Torah, the avot were not technically obligated in mitzvot; but if they were lacking an awe of majesty, they would not have been the avot. Before the events of Chanukah, there was no obligation to light candles or recite hallel; but in the generations after, one who can casually fail to do so is shown to be flawed in his relationship with Torah at a fundamental level. The convergence of Miketz and Chanukah provides us with a reminder that allowing the magnificent to become mundane is a danger to the very definition of the Jewish personality. 

[2] Bereishit 41:14

[3] See, for example, R. Asher Weiss, Minchat Asher al ha-Torah, Bereishit #56.

[4] See his chiddushim to Bereishit. It should be noted that there are several editions of the chiddushim of the Chatam Sofer to the Torah, under the titles Torat Moshe, Torat Moshe HaShalem, Chiddushei Chatam Sofer, Mei-Otzrot HaChatam Sofer, etc. In many of those editions, the Chatam Sofer does deal with the question more directly. The comment mentioned here can be found in the edition printed in R. Yehudah Horowitz’s Gilyonei Mahari al Sefer Chatam Sofer al ha-Torah.   

[5] Possible sources include Bereishit 48:2 (see Rashi) or Shemot 6:13 (see Mechilta, Bo, ch. 13).

[6] Sam Derekh, Bereishit, II, pp. 117.

[7] Setting aside, for a moment, the possibility that the mitzvot of Purim, as divrei Kabbalah, might have di-orayta status.

[8] Responsa Chatam Sofer, Orach Chayim, 208.

[9] Shemot 20:16

[10] Pachad Yitzchak, Shavuot #8.

[11] Bava Metzia 85b

[12] Hakdamah to Tiferet Yisrael.