Print this Article
May one sell their Hametz online?
Adapted from a Shiur by Dayan Shmuel Honigwachs
To answer this question, let us begin with a brief overview of the standard Mechirat Hametz procedure.
THE MINHAG OF A COMMUNAL SALE
The Minhag of a Hametz sale originated in Europe, where many ran Hametz-based businesses such as taverns. Disposing of the Hametz would be a very difficult undertaking, and thus the idea of selling the Hametz to a non-Jew for the duration of Pessah was born. The Shu”t Bigde Yesha (R. Shmuel HaLevy, Bialystok 1844, 2-15) writes us that he instituted the communal selling of Hametz in his locale through the local Bet Din. Similarly, other Poskim write about the local Rav or Bet Din supervising the sale of Hametz. Due to the intricacies involved in employing many types of Kinyanim – modes of acquisition – with which the average layman was not familiar, as well as the severity of the Hametz prohibition, the Minhag evolved that the sale is administered by the local Halachic authority. This practice has been in effect in Ashkenazi communities for 150 years.
Some of Poskim who questioned the custom, claimed that when the Rav sells the entire city’s or congregation’s Hametz to one non-Jew, it appears to be a Ha’arama – a trick. Nevertheless, the opinion of the majority of Poskim is that any competent Halachic authority will ensure that the sale is executed according to Halacha and therefore not in the Jew’s possession during Pessah.
Sefaradim had less of a need to sell their Hametz, and thus the practice did not become widespread until recent decades. Many Sephardic Poskim, such as the Ohr L’Tziyon, discourage the practice, due to the various intricacies that are involved with Mechirat Hametz, and that it may seem to be just a trick, with no real intention to sell. Even so, if one stands to lose by not selling his Hametz, or if one is not selling full-fledged Hametz, one need not be strict (for a full-length discussion on this topic, see Sede Hemed, Ma’arechet Hametz U’Matza 9:6).
HOW DOES THE STANDARD MECHIRAT HAMETZ WORK?
The mechanics of the standard Mechirat Hametz are as follows: The individual wishing to sell his Hametz appoints the Rav as his Shaliah – agent – to represent him, based on the principle of “Sh’luho shel adam k’moto” – one’s agent is like the person himself. The seller now gives the authority to the Rav to sell the Hametz on his behalf and signs a Sh’tar Harsha’ah – power of attorney – to this effect.
In order to make the sale more genuine and minimize the appearance of Ha’arama (trickery), the particulars of the Hametz are detailed in the Sh’tar (document), including what the Hametz consists of, its approximate overall value, as well as where it is located. Many Sh’tarot include a clause that if the gentile actually executes the sale following Pessah, an appraiser will appraise the Hametz for its actual worth at the time of sale.
The seller signs two documents. One, is the above-mentioned Sh’tar Harsha’ah and the other is a Bill of Sale, a Sh’tar Kinyan, which is one of the ways the sale is transacted.
The Sh’tar Harsha’ah is a Sh’tar Rayah: a document of proof that the seller has appointed the Rav to sell the Hametz on his behalf. This prevents the gentile from claiming that the Rav had no authority to sell the Hametz. (See Sefer Mechirast Hametz Kehilchato 17, footnote 18 and Alon HaMishpat #72, footnote11, for more reasons why it is preferable that a Sh’tar Harsha’ah be signed by the seller.)
If the seller appointed the Rav to be his Shaliah, i.e. two weeks before Pessah, and subsequently purchased more Hametz which he now wishes to sell, it is best to sign a new Sh’tar Harsha’ah since one cannot appoint a Shaliah for future purchases. In the event that this is not feasible, it is preferable to inform the Rav of the new purchases and verbally appoint him to sell the newly purchased items. In the absence of both options, the general consensus of the oskim is that the sale is still valid for the ‘new’ Hametz. Some Harsha’ot include a clause to specifically include Hametz that may be purchased after the Harsha’ah was signed, which – according to all opinions – might validate the sale of this ‘new’ Hametz. This clause is another benefit of signing a Harsha’ah.
To further strengthen the Rav’s authority, and in addition to signing the Sh’tar Harsha’ah, the seller performs a “Kinyan Sudar”: The Rav gives the seller a personal item such as a Kippah or pen, and the seller raises the personal item. By acquiring the item through this act of Hagbahah, he helps strengthen the authority of the Rav to sell the Hametz on his behalf.
This custom is based on a Rambam (Hilchot Mechira 5:11-13) and codified in Hoshen Mishpat (182:1) where it states that although a Kinyan Sudar is not required when appointing a Shaliah, the custom is to make one, to demonstrate the seriousness of the person’s intention when appointing the Shaliah.
OVER THE PHONE OR ONLINE
Contemporary Poskim permit a person to appoint his Rav to sell his Hametz over the phone. (See Sefer Mechirat Hametz Kehilchato 17:11.) This verbal communication is sufficient to appoint the Rav as his Shaliah to sell the Hametz. Since the seller is not selling the Hametz directly to the Rav, a formal kinyan is not absolutely required. The Rav can write down the details of the Hametz such as the value, location etc. as reported over the phone.
One concern when appointing the Rav as a Shaliah over the phone is the absence of a Sh’tar Harsha’ah. Without a signed Sh’tar Harsha’ah, there is no proof that the Rav was actually appointed as a representative of the seller, potentially invalidating the entire sale. One remedy would be to sign a Sh’tar Harsha’ah and fax it to the Rav.
Another concern when appointing the Rav as a Shaliah over the phone, is the absence of a Kinyan Sudar (the transactional act using a personal item, mentioned above) with the Rav. Rav Z.N. Goldberg shlit”a, contemplated this issue and concluded that while it is preferable to make a Kinyan Sudar when appointing a Shaliah, when this proves difficult, it is not absolutely required, and the sale to the gentile is Halachically binding. (Alternatively, some have proposed making a Kinyan Sudar between the seller and a third party.)
In closing, regarding appointing the Rav as a Shaliah online, it would seem that any electronic communication such as a web message, an email or a text would be acceptable for appointing the Rav. In fact, the web has an advantage over the phone as it offers a secure and recorded means of communication and a legal form of proof.
Hag Kasher V’Sameah!
To sell your personal Hametz online, you can visit: www.TheHalachaCenter.org/chametz
For more information regarding the sale of BUSINESS-RELATED HAMETZ or to execute a specializes business-related Hametz agreement, please call Rav Shmuel Honigwachs at the Bais HaVaad office at 732.276.1309 or email info@thehalachacenter.org