By Rabbi Berach Steinfeld
There are many Poskim that came out against the way we sell Chametz. We find in the MachtzisHashekel Orach Chaim 448:3 that writes that the mechirah will not work as even the Goyim know that this sale is just to avoid the issur of having chametz. Even if the Yidden selling it are doing it “blevShalem” but the Goyim who are buying it don’t have any intention of buying the place nor the Chametz of the Yid. The Machtis Hashekel concludes that the sale was only effective during the olden days where the mechiras Chametz was rare. Those mechiros were done blev shalem between both the yid and the Goy. Today where many sell the Chametz just because their parents did and the Goy will not and does not have any hava amina of buying the Chametz then it would be a very difficult thing to be mattir! The Machtzis Hashekel concludes that it is possible that we are reliant on the Bais Yosef in the name of the Ran in 431 that since the Chametz is not really in one’s reshus it is just a din that the Torah put it in your reshus that is why the mechirah maybe works.
The Vilna Gaon was makpid not to buy Chametz after Pessach that was sold to a Goy. He held that the mechirah would be very weak. In contrast we see in the BiurHagra in 448:3 that the mechirah is good as there is no “haraama.” We could explain that the Gaon would not buy from a Soicher that sold a lot of chametz because he really does not have in mind to be mevatel all the chametz but in the event where someone sells a minimal amount where he would not be terribly upset to lose it, then one can rely on that mechirah.
The Bechor Shor in Pesachim 21 says we can affirm our mechirah despite the fact it looks like a “haraama” as the buyer is usually not even capable of paying the balance the seller is really not interested in selling it nevertheless since Min HaTorah one can be mevatel the Chametz. Everyone is actually mevatel it as we know a person is supposed to spend all his money not to be oveir on a Lo Taaseh. Therefore, it is only assur MiDeRabbanan that they said it has to be destroyed, Just as they said it needs to be destroyed they also allowed for a mechirah as the Rosh brings in the name of the Tosefta in Pesachim 85. We see again the mechirah is a shvache mechirah. The Baal HaTania says that the only way to do a proper mechirah is via another Jew buying the Chametz and then selling it. Thereby, there is no interaction between the one selling the chametz and the Goy buying the chametz.
The Chasam Sofer argues and says that we don’t care if the Goy is actually koneh the chametz our goal is that it should be out of the reshus of the Yid selling it. The reason the Chametz is in the house is that the Yid is watching it on behalf of the Goy. The problem with this is that this would not constitute a mechirah if there is no buyer there is no seller. We could say is that really every Yid should be mafkir his chametz and we do say it. But this hefker is not a regular hefker as we do not need to put it outside it is rather a hefker that makes it like dirt and it has no value. For that we would not be oveir on Chametz but since it is in our reshus the Torah makes it as if it is ours and we are oveir so for that we need to sell it to a goy so it is out of our reshus. We need to show hesech hadaas from the chametz for that it would be sufficient to make a sale to a Goy despite it being a haraama so as not to be oveir on bal yeiroah.
The Chasam Sofer says that we should sell our Chametz and it is forbidden to speak against the mechirah as it was a minhag and one should make sure to do all kinyanim with the goy. One should make sure to designate the place of the chametz for the goy so it is not considered in your reshus.
May we all be zocheh keep all the Mitzvos of Pesach!
