Selling chametz - legal fiction?
Question:
Each year before Pesach, I’m once again astounded as I observe the festive ceremony where the Chief Rabbi smugly sells the chametz to a non-Jew. In addition, mechanisms such as “pruzbul”, “heter mechira,” and “heter iska” don’t exactly thrill me either. Is one of the rabbis brave enough to address this question of deceit? Are we talking about some sort of halachic legal fiction? -- Uri, Kfar Saba
Answer:
Your question, which encompasses many topics, is a good one. I’ll try to answer briefly – considering that it’s a complex subject.
The Torah constitutes a legal system which applies precise rules to each and every in order to determine proper conduct.
Throughout the generations, our Sages discovered unique heterim (literally, dispensations or permits) for specific cases, which arose over time. These heterim were always based on the Torah’s rules.
Selling chametz before Pesach is an example of such a heter. The Torah prohibits a Jew from owning chametz on Pesach, but a non-Jew is not forbidden to do so.
Thus, in a situation where a Jew owns considerable quantities of chametz – in the past, this was a fairly common occurrence, as many Jews were liquor and beer merchants – our Sages determined that the Jew is permitted to sell his chametz. In this way, the Jew does not transgress the Torah’s prohibition against owning chametz, because this solution tallies with the Torah’s rule that a non-Jew may own chametz.
The other mechanisms that you refer to may be similarly explained. This is not a “fiction,” to use your words. Rather, we’re talking about a reality which is permitted according to the Torah’s own rules.
Thus, the Sages decreed that these mechanisms are, in fact, permitted. In each case, we should examine the Sages’ exact decree as well as the circumstances that induced the Sages to make their decree. However, these decrees are not in violation of Torah law; rather, they are all based on the relevant rules of the Torah.
(Rabbi Shmuel Nechustan)
