Shabbat Parashat Tazria| 5764
Choshen Mishpat Elements of Mechirat Chametz
During the days that have passed and those which will follow, many of our readers will be taking care of mechirat (sale of) chametz. We would like to take the opportunity to review some of the many Choshen Mishpat (laws of commerce) elements of the topic.
1) Agency, not sale- The rabbi is appointed as an agent by the homeowner; he does not buy the chametz. Were the rabbi to suffice by buying the chametz, even if he desired to do so, the sale would only apply to the chametz which was already in the homeowner’s possession at that time. Just as one cannot make a transaction to sell an object which does not yet exist in the world, so too one cannot transfer something which is not yet in his possession even though it is in the world (Shulchan Aruch, Choshen Mishpat 209:5). Not only does such a transaction not take place immediately (which is obvious), but it cannot even take effect as of the time that the object enters the “seller’s” possession.
2) Means of creating agency- Perhaps that which makes people think the rabbi does buy the chametz is the fact that he performs a kinyan sudar (an act of acquisition utilizing the transfer of a utensil, often a handkerchief or pen) with the homeowner. In truth, one does not need a kinyan sudar to become an agent (ibid. 182:1). The reason the rabbi does so is to strengthen the appointment, as the Rambam suggests (Mechira 5:11-13). The homeowner also signs a form of authorization, which, although not needed, also strengthens the agency and the subsequent sale, by making it difficult for the homeowner to deny his authorizing the sale (Mechirat Chametz K’hilchato 17:18)). It is possible that we do extra things to strengthen the process, because there are weaknesses in the transaction, including the fact that some look at it as a legal fiction. We compensate by adding procedures that will hopefully cause the seller to take the process more seriously from a legal, not only religious, perspective.
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