April 5, 2023|י"ד ניסן ה' אלפים תשפ"ג The Sale of Chametz and Halachic Loopholes By Rabbi Jonathan Muskat

Every erev Pesach, for the past ten years, I have been selling chametz belonging to my shul members to Alicia Martinez, our shul caretaker. Every night following Pesach, for the past ten years, I have repurchased that chametz from Alicia Martinez. And we play this “game,” year in and year out, so that we do not violate the prohibition of owning chametz over Pesach and still have the opportunity to own our pre-Pesach chametz after Pesach. On one level, we are meeting the technical requirements of not owning chametz on Pesach because the sale is legally binding according to halacha and secular law. But is it really just a game? Does this sale violate the spirit of the law because everyone knows that Alicia will agree to sell me the chametz after Pesach? What are we really accomplishing?

The underlying issue is how do we feel about creating halachic loopholes? Is there any downside in creating a halachic loophole? When is a halachic loophole completely acceptable and when is it frowned upon, if at all?

In his Sefer “B’Ikvei Tzon,” Rav Herschel Schacter suggested that we support a halachic loophole if it’s created to avoid violating a prohibition. The Torah prohibits us from wearing a garment of wool and linen. If we remove the linen from the garment so that it is no longer a wool and linen garment, nobody would suggest that we are doing anything wrong. The Torah defines a certain behavior or item as forbidden, so as long as we don’t engage in that behavior or as long as we don’t use that particular item, then we are not doing anything wrong.

However, a halachic loophole is viewed as undesirable if it’s created to avoid observing a positive mitzvah.  If I have the opportunity to perform a mitzvah and I want to employ a halachic loophole to avoid performing that mitzvah, then ideally I should avoid employing the loophole.

How would we apply this analysis to selling our chametz before Pesach to a non-Jew and then repurchasing it after Pesach? Some poskim, like Rav Soloveitchik, frowned upon using this loophole for real chametz. Rav Schacter disagreed with this position. For Rav Schacter, using a loophole to avoid the prohibition of owning chametz on Pesach should be acceptable.  However, by selling the chametz to a non-Jew instead of destroying it, am I avoiding the positive mitzvah of “tashbitu,” of destroying the chametz (assuming that we can only fulfill this mitzvah by actually destroying it and not simply selling it)? No worries! If I sell most of my chametz to a non-Jew, as long as I destroy the last bit of my chametz before Pesach, then I would fulfill the mitzvah of “tashbitu.”  As such, using the halachic loophole of selling my chametz to a non-Jew should not pose a problem according to Rav Schacter.

This approach by Rav Schacter very much resonates with me, not just because it allows me to sell my chametz without any feelings of guilt, but because it highlights how we should feel about positive mitzvot. We should view them as not merely obligations, but we should view them as opportunities. Judaism is not about checking the boxes and making sure that I do what I’m obligated to do and I don’t do what I’m forbidden from doing. Judaism is about seeing our holy Torah as a blueprint to leading a meaningful, transcendental life and that is a lens through which we must see the mitzvot that we observe. What message am I sending if I try to avoid opportunities to connect with God? It is akin to someone saying that I don’t want to eat bread because then I will need to wash and recite Birkat Hamazon. Halacha frowns upon someone who wants to avoid these beautiful spiritual opportunities.

What a beautiful message for us to share with our families on seder night! Yes, we need to explain to our families why the sale of chametz is a completely legitimate loophole both according to the letter of the law and according to the spirit of the law. But more than that, on the night of the seder we can use this analysis to emphasize to our families that mitzvah observance is more than an obligation, it’s a beautiful opportunity which God gifted to us when He formed us into a nation on this night over three thousand years ago.