Parsha Halacha

Parsha Halacha

Parshat Parshat BeShalach / Shabbat Shirah

Mount Sinai and the Land of the Philistines and More on the Sale of Chametz

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The Torah portion of Beshalach begins with the verse, וַיְהִי בְּשַׁלַּח פַּרְעֹה אֶת הָעָם וְלֹא נָחָם אֱלֹקִים דֶּרֶךְ אֶרֶץ פְּלִשְׁתִּים כִּי קָרוֹב הוּא כִּי אָמַר אֱלֹקִים פֶּן יִנָּחֵם הָעָם בִּרְאֹתָם מִלְחָמָה וְשָׁבוּ מִצְרָיְמָה׃ “When Pharaoh sent the nation out, G-d did not lead them by way of the land of the Philistines, although it was nearer; for G-d said, ‘The people may have a change of heart when they see war and return to Egypt.’“[1]

Someone asked me, how could G-d have led the Jewish people through the land of the Philistines if the Jewish people were supposed to receive the Torah on Mount Sinai which is in the Sinai Desert? This was already foretold to Moshe when G-d first appointed him to lead the Jewish people out of Egypt, as it says, “When you take the people out of Egypt, you shall worship G-d at this mountain.”[2]

I have found five answers to this question:

1)     Before the Splitting of the Sea

The Seforno explains that going by way of the Philistines is not referring to going straight to Israel by way of the coast since they needed to go to Sinai to receive the Torah. Rather, the Torah is referring to the location where the splitting of the sea took place. The more direct path to the Sea of Reeds would have been towards the north (on the way to the land of the Philistines), but G-d didn’t lead them that way because there were many travelers along that route and the Jewish people would have heard from them that Pharaoh and his army were chasing after them to make war and would have immediately returned to Egypt.

2)     Factored In

The Chazon Ish writes[3] that when G-d told Moshe that the Jewish people would worship Him at Sinai, he had already factored in that the people would not travel through the land of the Philistines for the reason given above. This is why He chose Sinai as opposed to a different mountain on the route to the Philistines. 

3)     Could Have Been after Entry into Eretz Yisroel

Alternatively, the Chazon Ish also suggests, the Jewish people could have gone into the Holy Land by way of the Philistines (if not for the reason given above) and then gone to Sinai to receive the Torah at a later time.

In a similar way, the Midrash says[4] that the verse should be interpreted to mean that one of the reasons the Jewish people didn’t travel by way of the Philistines is because they needed to receive the Torah at the appointed time (50 days after the Exodus). The verse should thus be understood as follows: וְלֹא נָחָם אֱלֹקִים דֶּרֶךְ אֶרֶץ פְּלִשְׁתִּים כִּי קָרוֹב הוּא “G-d didn’t lead them by way of the Philistine land because their appointed time [to be at Sinai] was near.”כִּי אָמַר אֱלֹקִים פֶּן יִנָּחֵם הָעָם בִּרְאֹתָם מִלְחָמָה וְשָׁבוּ מִצְרָיְמָה׃ [An additional reason is that] the G-d said that the people might decide to return to Egypt upon seeing war.”

4)     Sinai Could have Jumped to Moriah

The Midrash says[5] that at the time of the giving of the Torah, Mount Moriah was uprooted from its place and brought to Sinai so that the Torah could be given on this special mountain. (It seems like Mount Moriah and Mount Sinai merged into one mountain at that time.)

In a similar way, it has been suggested,[6] that had the Jewish people gone to Israel by way of the Philistines, the Torah could have been given on Mount Moriah while Mount Sinai could have been uprooted from the Sinai desert and could have merged with Mount Moriah at that time.

5)     Needed to Receive the Torah to Overcome Fear

It has been suggested[7] that the idea of the Jewish people losing hope upon encountering war and returning to Egypt was not just a concern regarding traveling by way of the Philistines but a concern no matter how they traveled.[8] The only way to counter that concern was to go through Sinai so that the Jewish people could receive the Torah which gave them the spiritual strength and fortitude to be able to fight against the mighty warriors of Canaan and any other warring nations they might meet on the way.

The rest of this article will continue the discussion of the sale of Chametz which we began last week.

Is the Sale a Chametz a Trick (Ha’aramah)?

The sale of Chametz might seem like a trick to get out of the prohibition of owning chametz. As such one may question the validity of the sale as it can be perceived as fictitious rather than genuine. 

Rules of Tricking in Halacha

There are many cases where the sages allowed tricks to permit certain activities and other cases where they forbid it. While the details of this matter are beyond the scope of this article, I will list some permissible “tricks” and some forbidden ones.[9]

Permissible Tricks

●      Although one may not immerse an impure (or new) utensil in a mikvah on Shabbat or Yom Tov, one may use an such a vessel to draw water from a mikvah, thus purifying the vessel.[10]

●      It is forbidden to stop up a hole in a barrel with a food item, e.g., a carrot. If one’s intention is to store the carrot in that spot, however, one may place it in such a hole. A Torah scholar may place a food item there with the intention to stop up the hole as long as he says that his intention is to store the food item.[11]

●      One may not rent or lend his animal to a gentile over Shabbat as the gentile is likely to make it work on Shabbat and a Jew must ensure that his animals rest on Shabbat. If one rented or lent his animal to a gentile who was supposed to return it before Shabbat but failed to do so, the Jew should declare the animal ownerless before Shabbat even though he intends to get it back after Shabbat.[12]

Forbidden Tricks

●      One may only cook food on Yom Tov that he plans to eat (or feed to others) on that same day. In some circumstances, one may cook on Yom Tov with the intention to eat it the next day (as long as he eats some of it that day) while in other circumstances it is forbidden.[13]

●      A Jew may not castrate his animal nor may he instruct a gentile to do so on his behalf. If a gentile does it on his own, the Jew may continue to use that animal. But if the Jewish owner arranged for the gentile to do this procedure while making it seem as if the gentile did it on his own, the sages ruled that he must sell the animal so that he not benefit from this subterfuge.[14]

●      If one vowed that a certain person may not benefit from him and he wishes to give that person something, he may not give it to a third party to give to that individual (unless that person is starving and he is giving him something to eat).[15]

The Tevuot Shor – Selling Chametz Only Works for Rabbinic Prohibitions

Rabbi Alexander Sender Schor (of 18th-century Lvov, Ukraine) wrote[16] that the sale of chametz is an obvious deception since the gentile buyer is usually a poor man who cannot afford to buy all of the chametz nor is it usual for him to buy such items. As such, he writes that it is only permissible since everyone nullifies their chametz and it is only by Rabbinic law that one must get rid of it. And the sages were lenient regarding “tricks” in cases of Rabbinic law. For this reason, Rabbi Schor does not allow the Pesach sale of animals to a gentile who will feed them the chametz that he also “purchased” from the Jewish owner. Since benefiting from chametz on Pesach is a Torah violation, the sale is not sufficient to permit it. (Having one’s animal eat one’s chametz is a financial benefit.)

Intent to Sell

Some authorities give the following reason as to why the sale of chametz is valid even if it isn’t an effective sale by the letter of the law:

At the time that chametz becomes forbidden to own, it is also forbidden to consume or benefit from it.[17] As such, if a Jew has chametz in his possession at that time, he has no rights over it since he may not use it for anything. This should be sufficient to render that chametz hefker, ownerless. The Torah, however, considers the owner to be in possession of his chametz in terms of his transgressing the prohibition to own chametz. Since this ownership is only for the purpose of the transgression, it is sufficient for the owner to indicate that he doesn’t want to own the chametz in order to avoid the transgression. As such the argument is made, that even if the sale of chametz is not halachically sound (for whatever reason), the attempted sale is sufficient to indicate the owners desire to divest himself of the chametz which, in turn, is sufficient to absolve oneself of the transgression to own Chametz.[18]

Opinion of the Alter Rebbe

In the “Order of Selling Chametz” by the author of the Shulchan Aruch HaRav, Rabbi Shneor Zalman of Liady (known as the Alter Rebbe) wrote that the chametz which one sells to a gentile is not included in one’s nullification of Chametz since one intends to buy it back after Pesach, hence he is not truly declaring it hefker, ownerless.[19] In addition, he writes that if the sale is not conducted in a halachically sound manner, one would transgress on the Biblical law to not own Chametz. Since he wrote this order after he wrote the Shulchan Aruch,[20] it seems that the Alter Rebbe retracted his earlier opinion that having intent to sell the chametz is sufficient to not transgress the prohibition of owning chametz. His grandson the Tzemach Tzedek explains[21] that although by intending to sell the chametz one reveals his intent to sell it, it does not mean that he intends to declare it ownerless. Hence, if the sale mechanism is invalid, the chametz still belongs to the original owner.

As such, it is clear that the Alter Rebbe is of the opinion that the sale of Chametz is a permissible sort of “trick” which works even in a case that would otherwise be a Torah violation. 

Here are several reasons offered by the poskim (halachic authorities) as to why this kind of sale is permissible:

1)     The Chatam Sofer points out[22] that we find many cases where so called “tricks” may be employed even in cases that would (otherwise) be a Torah violation. Since the sages permitted the sale of chametz to a gentile with the intention to buy it back,[23]this must be one of those cases.

2)     In addition, the Chatam Sofer explains, even though the gentile plans on selling the chametz back after Pesach, he still intends to purchase it temporarily for the duration of Pesach. As such the sale is legally binding and the chametz no longer belongs to the Jew despite the fact that it’s a legal loophole.

3)     Similarly, the Chayei Adam explains[24] that this sale is not considered a trick at all but is rather an absolute sale for the duration of Pesach. The fact that the gentile may not be able to afford to pay for the chametz after Pesach does not prove that it is a trick since the gentile can choose to sell the chametz and use the proceeds to pay for it. 

The Details

In order to make sure that the sale is real and not considered a subterfuge, one must be careful about the following details: (The sale should be executed by an expert Rav.)

●      It must be explained to both the gentile buyer and the Jewish seller that the sale is legitimate and not merely a formality.[25]

●      As he is the rightful owner, the gentile must be given access to the chametz. This can be accomplished by giving him the keys to where the chametz is located or by informing him that he will be allowed to enter whenever he likes.[26]

●      The sale should be made without any conditions although one may mention that he is happy to buy the chametz back after Pesach.[27]

●      If the gentile chooses to keep the chametz after Pesach, one must honor that decision. The gentile will have to pay for the chametz based on its value as appraised by an expert.[28]

G-d willing we will continue this discussion in another article.

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[1] Exodus 13:17

[2] Ibid 3:12

[3] Orach Chaim 125:11

[4] Yalkut Shimoni Remez 226

[5] Yalkut Reuveni on Exodus 20:2, quoting the Midrash. See also Rashi D”H Mora on Ta’anit 16a

[6] Rabbi Aharon Lichtman in Kovetz Etz Chaim - Bobov, Choveret 30, page 567

[7] Rabbi Eliyahu Shlesinger in Otzar HaTorah (Mossad HaRav Kook, Jerusalem 2013) on the verse 

[8] See Ibn Ezra on Exodus 14:13 regarding the slave mentality of that generation.

[9] For more information see Encyclopedia Talmudit, entry Ha’aramah.

[10] Beitzah 18a, O.C. 323:7 and Shulchan Aruch HaRav 323:8

[11] Ibid 314:20 based on Shabbat 139b

[12] Shulchan Aruch HaRav 246:9

[13] See ibid 503:4-10

[14] Even Ha’Ezer 5:5

[15] Shach 52 on Yoreh De’ah 221

[16] Bechor Shor on Shas, Pesachim 21b

[17] Shulchan Aruch HaRav 443:3

[18] Ibid 448:8 and Mishnah Berurah 448:17

[19] Seder Mechirat Chametz, printed in the Shulchan Aruch Harav, Hilchot Pesach

[20] The Alter Rebbe wrote the Laws of Pesach during the lifetime of his teacher the Maggid of Mezritch(introduction of the sons of the Alter Rebbe to the Shulchan Aruch Harav) who passed away in the year 1772. The Order for Selling Chametz was written between the years 1790 and 1798 (Addendum 4 on Shulchan Aruch Hilchot Pesach im Biur Divrei Shalom, vol. 3).

[21] Tzemach Tzedek, Piskei Dinim, O.C. 29a

[22] Responsa O.C. 62

[23] See here for the sources.

[24] Hilchot Pesach, Nishmat Adam, 8

[25] Responsa Oneg Yom Tov by Rabbi Refael Yom Tov Lipman Halperin, O.C. 28

[26] Shulchan Aruch HaRav 448:13 Responsa Mahara”sh Engel 1:34 quoted in Piskei Teshuvot 448:16 

[27] Shulchan Aruch HaRav 448:18-24. Although the Shulchan Aruch HaRav permits making a condition that the gentile may not sell the chametz to anyone else, the Seder Mechirat Chametz reverses this decision and writes that the gentile must be allowed to sell the chametz if he chooses to do so.

[28] Shulchan Aruch HaRav 448:25

Wishing you a Shabbat Shalom UMevorach!