In memory of my grandmother
Chana Chaya Freida Golinkin z”l
who passed away on 6 Nisan 5719
Question from a rabbi in Jerusalem: I am taking care of “Reuven’s” apartment in Jerusalem, but “Reuven” lives in New York. Reuven asked me to sell his hametz to a non-Jew. But Pesah in Israel ends 31 hours before it ends in New York – a seven-hour time difference plus an additional day of Yom Tov Sheni (the additional day of the Festival in the Diaspora). In other words, the hametz will revert to his possession in Jerusalem when it is still Pesah in New York. How, then, can I sell his hametz?
Responsum: This is a common problem today, as a result of the invention of the airplane and the ease of mobility from place to place. Indeed, I have been asked this question five times, by people who own apartments in both places, by American students spending a year in Jerusalem who spent Pesah with their families abroad, and by Israeli shlichim living abroad. There is a similar problem if a Jew in Los Angeles owns an apartment in New York.
There are six possible solutions to your problem:
1) To remove all the hametz from the apartment in Jerusalem.
It is not a mitzvah to keep hametz in one’s home over Pesah and to sell it. Selling the hametz is a legal fiction which developed in Germany and France in the Middle Ages when many Jews earned a living by selling beer, whiskey and the like.(1) The mitzvah min hamuvhar, the preferred mitzvah, is to remove all of the hametz from the house. Indeed, this is what Yemenite Jews did in Yemen and this was the recommendation of Rabbi Yosef Kapah z”l (Commentary to Maimonides, Hilkhot Hametz Umatzah, chapter 2, note 3) and Rabbi Simcha Roth z”l (Responsa of the Vaad Halakhah 6 [5755-5758], p. 199).
2) That Reuven should give all his hametz in Jerusalem as a complete gift to an Israeli and say: “My hametz is now yours”
In other words, if Reuven who is in New York gives his hametz to an Israeli as a complete gift, the Israeli can then sell that hametz together with his own according to the time in Israel, and after Yom Tov Sheni in New York, the Israeli will return the hametz to Reuven as a complete gift. This suggestion is quoted by Rabbi Eider (note 84) in the name of Rabbi Moshe Feinstein.
Maimonides, however, ruled that if a person makes a gift to his friend, the recipient only acquires it via one of the methods used to acquire a purchased item, such as lifting it or pulling it or a kinyan sudar (making an acquisition binding by handing over an object), but words alone are not enough. (Hilkhot Zekhiyah Umatanah 3:1). If so, how can Reuven, who is in New York, give his hametz in Jerusalem as a complete gift to Shimon?
The halakhic authorities have already ruled that it is permissible to sell hametz “by every method which merchants use to acquire goods”. They refer to Hoshen Mishpat 201:2 which rules that, in general, one can sell “by every method which merchants use to acquire goods” (see Kaf Hahayyim to Orah Hayyim 448:51, who refers to the Magen Avraham and many other authorities) In other words, one can sell hametz via telephone, fax and email. Indeed, that is why Rabbi Gedalia Felder ruled explicitly that one can sell hametz via the telephone )Rabbi Felder, p. 299).
Since Maimonides quoted above ruled that one acquires a gift in the same way that one acquires a purchased item, it is permissible to give hametz as a gift via telephone, fax or email.
3) The sale is executed according to the location of the hametz – it is an issur heftza (a prohibition of an object)
This was the opinion of Rabbi Raphael Halperin who lived in Bialystok (1816-1879); he is quoted by most of the rabbis listed below. His opinion was based on what is missing from a passage in Pesahim 32a-b. A similar ruling was given by Rabbi Yehiel Michl Tukechinsky (according to Rabbi Hayyim David Halevi, p. 90).
According to these rabbis, hametz is an issur heftza and not an issur gavra, a prohibition of an object and not a prohibition of a person. Therefore, the deciding factor is the location of the hametz and not the location of the owner of the hametz. Therefore, one should sell Reuven’s hametz in Jerusalem like any Israeli who lives in Jerusalem. However, this approach, which is based on what is missing from a passage in Pesahim, is not convincing.
4) The sale is executed according to the location of the owner of the hametz – it is an issur gavra (a prohibition of a person)
This was the opinion of most of the modern rabbis who discussed our topic:
- Rabbi Avraham Te’omim.
- The author of Peri Sadeh quoted by Rabbi Felder.
- The author of Arugat Habosem quoted by Rabbi Felder.
- Rabbi Bezalel Zolti, the Chief Rabbi of Jerusalem.
- Rabbi Shlomo Zalmen Broin.
- Rabbi Zvi Pesah Frank, the Chief Rabbi of Jerusalem.
- Rabbi Hayyim David Halevi, the Chief Rabbi of Tel Aviv.
According to these rabbis, hametz is an issur gavra and not an issur heftza, a prohibition of a person and not a prohibition of an object, since it says in the Torah “no hametz shall be seen with you” (Exodus 13:7). Therefore, the deciding factor is the location of the owner of the hametz and not the location of the hametz. Therefore, Reuven needs to sell his Jerusalem hametz in New York according to New York time (or the rabbi in Jerusalem can arrange a special sale in Jerusalem according to New York time).
5) A mixture of approaches 3 and 4 – both heftza (object) and gavra (person).
This was the ruling of Rabbi Moshe Feinstein in his responsum (cf. Rabbi Eider, p. 127 and Rabbi Gottlieb, pp. 115-116; and the similar opinion of Avnei Zikaron quoted by Rabbi Felder, p. 236).
With all due respect to Rabbi Feinstein, it is hard to accept this approach: it is either a prohibition of a person (gavra) or of an object (heftza) – but not of both!
6) Reuven in New York only reacquires his hametz in Jerusalem when he wants to do so.
This was the ruling of Rabbi Yitzhak Ya’akov Weiss, the Av Bet Din of the Edah Haredit in Jerusalem. According to this approach, hametz is indeed a prohibition of a person (gavra), but Reuven in New York will only reacquire his hametz in Jerusalem when he wants to – at the end of Yom Tov Sheni in New York and not at the end of Yom Tov in Jerusalem. I believe that this approach is too clever. It will be very difficult to explain to someone how the hametz which reverted to his possession in Jerusalem 31 hours before the end of Pesah in New York does not really belong to him.
In conclusion, we are left with three approaches (Nos. 1, 2, 4) and I recommend the first two.
As we prepare for Pesah, may we all take care lest the prohibitions of hametz on Pesah overwhelm the obligation to rejoice on the festivals (Pesahim 109a; Shulhan Arukh Orah Hayyim 529). Hag Sameah!
6 Nisan 5778
- For an excellent survey of the history of selling the hametz, see Rabbi Shlomo Yosef Zevin, Hamo’adim Bahalakhah, seventh edition, Tel Aviv, 1960, pp. 245-255, which is summarized in the Encyclopaedia Judaica, Vol. 7, cols. 1237-1238, s.v. Hamez, Sale of.
Rabbi Shlomo Zalmen Broin, She’arim Hametzuyanim Bahalakah, Hilkhot Pesah, p. 80 (quoted by Rabbi Ovadia Yosef)
Rabbi Shimon Eider, Halachos of Pesah, Lakewood, New Jersey, 1985, p. 127
Rabbi Moshe Feinstein, Igrot Moshe, Orah Hayyim, Part 4, No. 94
Rabbi Gedalia Felder, Yesodei Yeshurun, Part 6, New York, 1970, pp. 233-236
Rabbi Zvi Pesah Frank, Mikraei Kodesh al Pesah, Part 1, No. 55 (quoted by Rabbi Halevi).
Rabbi Steven Gottlieb, Journal of Halacha and Contemporary Society 31 (Spring 1996), pp. 113-116
Rabbi Hayyim David Halevi, Responsa Mayyim Hayyim, No. 25
Rabbi Raphael Halperin, Responsa Oneg Yom Tov, Orah Hayyim, No. 36; also quoted by Sedei Hemed, Ma’arekhet Hametz Umatzah 5:19 at the end
Rabbi Avraham Te’omim, Responsa Hesed L’avraham, mahadura kamma, Orah Hayyim, No. 35 (quoted by Rabbis Ovadia Yosef, Felder, Halevi and Gottlieb).
Rabbi Yitzhak Ya’akov Weiss, Responsa Minhat Yitzhak, Part 6, No. 45, p. 52
Rabbi Ovadia Yosef, Hazon Ovadia, Hilkhot Pesah, Jerusalem, 2003 edition, Part 1, pp. 62-63 (with a summary by Rabbi Yitzhak Yosef, Kitzur Shulhan Arukh Yalkut Yosef, Vol. 2, Jerusalem, 2006, p. 30
Rabbi Bezalel Zolti, Mishnat Ya’abetz, Orah Hayyim, No. 13 (quoted by Rabbis Ovadia Yosef and Gottlieb).