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Adapted from a shiur by Rav Yosef Greenwald
Selling as “Tashbitu”: Getting Rid of your Hametz
Mechirat Hametz, the sale of Hametz to a gentile before Pessah – used to avoid violating the prohibition of owning Hametz on Pessah – appears in the Mishna and Tosefta. But for most of Jewish history, it was employed only in exigent circumstances. Decrees in Europe four centuries ago that banned Jews from most professions led to a state where the Bac”h, writing in 1630’s Poland, observed (O.H. 448:3) that most Jewish commerce was in liquor. As a pre-Pessah fire sale of a producer’s entire inventory would mean financial ruin, the Bac”h permitted a distiller to sell his supply to a gentile before Pessah, without physical transfer, and then buy it back after Yom Tov—provided he also sold the warehouse and gave the buyer the key.
Two centuries ago, the current practice, in which selling Hametz to a gentile through one’s Rav is a standard part of Pessah preparations, was taking shape in Europe.
Despite this, we all still burn Hametz on Erev Pessah. Why can’t we consider the Mechirat Hametz as a fulfillment of the mitzva of Biur Hametz?
There is a dispute between Ribbi Yehuda and the Hachamim in the Mishna (Pessahim 21a) whether the mitzva of Tashbitu Se’or Mi’Batechem requires burning, or if crumbling the Hametz and dispersing it in the wind or tossing it into the sea suffices.
Maran follows the view of the Hachamim that any means of destruction is valid, although the minhag to burn the Hametz when possible. Wouldn’t a sale to a gentile also fulfill the mitzva?
The Minhat Hinuch (9) ponders whether one who owns no Hametz must acquire some in order to destroy it on Erev Pessah. Does Tashbitu require an act of elimination, or simply that one not possess Hametz on Pessah? He concludes that the Torah mandates an act of Hashbata.
But does Hashbata require physical elimination, or would a legal act that removes the Hametz from its owner’s possession be effective?
The Rishonim say that one could fulfill the mitzva of Tashbitu via Bittul – the proclamation that one considers all his Hametz worthless like dirt. This is with the Rishonim’s overwhelming understanding—with the notable exception of the Ran—that Bittul makes one’s Hametz ownerless.
So if Bittul, wherein the Hametz is untouched but its ownership is changed, constitutes a fulfillment of Tashbitu, why wouldn’t selling it to a gentile qualify as well?
It would appear that the answer is this: Tashbitu requires that one treat his Hametz as worthless, something he no longer values [as it is stated in the Bittul formula, in which we declare that our Hametz “should be nullified and ownerless like the dust of the earth”]. Both physically destroying Hametz and relinquishing ownership of it via pronouncement demonstrate that the Hametz no longer holds value for its owner. But selling would indicate the opposite. Offering an item for sale shows that the seller values it and expects that others will do so as well. He sells his Hametz to exchange it for another valuable commodity, money. One who sells his Hametz certainly won’t violate the prohibition of owning Hametz – Bal Yera’e – because he no longer owns it. But neither will he fulfill the mitzvah of Tashbitu since it requires an eliminative act.
The Rashash (Pessahim 21b) suggests that one could fulfill Tashbitu on Erev Pessah by eating Hametz. But we don’t find that option mentioned by most Rishonim and Aharonim (see Baal HaMaor, ad loc.) and this could be the reason: Eating something does not demonstrate that one doesn’t value it, it does the inverse.
A similar argument is made by the Hattam Sofer. The Tosefta (Pessahim 2:12) discusses the case of a man who finds himself on a ship before Pessah in possession of Hametz. Were he to destroy his Hametz provisions, he would starve before reaching land. The Tosefta says he should sell or gift it to a gentile passenger, but it adds the caveat (per the text of the Geonim) that one must not engage in pretense; the sale must be real. The Tevu’ot Shor (Bechor Shor, Pessahim 21a) offers a novel understanding of the contemporary Mechirat Hametz: Although it is a Ha’arama, a trick, which is generally forbidden, but because Bittul eliminates the possibility of a Biblical violation (Pessahim 4b, 10a), therefore the prohibition of Hametz is only Mid’Rabbanan, and a Ha’arama-based sale is sufficient on the D’Rabbanan level as a reinforcement of one’s Bittul. The Hattam Sofer rejects this understanding, arguing, as above, that the sentiment that underlies sale is the opposite of that behind Bittul: Bittul means I don’t value the Hametz, selling means I do. The sale of one’s Hametz, far from fortifying his Bittul, would undermine it.
May you and your family enjoy a Hag Kasher V’Sameah!