Here is a letter once sent by one of our readers to his Rav who permitted the evil “Mechiras Chametz” (based on Rabbi Yitzchak Brand shlita). I used AI to translate for Hyehudi.org (without looking it over):
The Rav wrote that the sale [of chametz] takes effect according to the strict letter of the law, and in any case, one may be lenient for others if the seller acts according to the guidance of his rabbi, and this is merely a stringency, etc.
But the entire sale is exceedingly puzzling. It is an obvious legal fiction (ha’arama), and there is no genuine intent (gemirut da’at) on the part of the non-Jew to obligate himself to pay, and certainly he does not accept liability for accidents or depreciation of the chametz — thus it remains in the ownership of the Jew.
Behold, even if we were to agree with the method of sale described in the Shulchan Aruch (O.C. 448:3), where chametz is sold for a small amount — and there, the issue of the non-Jew’s intent is not problematic, since he is not obligating himself beyond what he paid, and the Jew, in order to avoid transgressing “bal yera’eh u’bal yimatzeh,” completes the sale with full intent. This is not the case today, where the sale has been altered, as explained in the Biur Halacha (s.v. “bedavar mu’at”), such that the non-Jew pays only a deposit and undertakes to pay the rest later, and everyone knows that he does not actually intend to pay — thus there is no true intent (gemirut da’at) on the part of the non-Jew. All the more so in a city-wide sale, where the non-Jew has no idea how much he is buying or how much he is obligating himself for.
This change was made for the benefit of the Jew, so the non-Jew could not take the chametz for a nominal sum — rather, if he wishes to take it, he must pay the full amount. But they greatly harmed the validity of the sale with this change, because now there is no real intent on the part of the non-Jew to pay if he is demanded to do so. In regular sales, a person can pay a deposit and obligate himself for the remainder — but that applies to goods he is interested in. Here, the non-Jew has no interest at all, and he only agrees because he knows clearly he will not be required to pay the full price. And this is considered — in his heart and in the heart of anyone — as if it were explicitly stated [that he doesn’t intend to pay], as ruled in the Rema (Choshen Mishpat 207:4) and the Shulchan Aruch (C.M. 99:7).
This question has already been raised by the Tevuot Shor, the Machatzit HaShekel, and others, and there has not been a satisfactory answer provided.
Similarly, according to what the Beit Yosef brings in the name of Rabbeinu Yerucham quoting the Ba’al HaHalachot Gedolot, regarding the sale of chametz to a non-Jew with the intent of repurchasing it afterward — as discussed in the Tosefta (Pesachim 2) and cited by all the Rishonim and the Shulchan Aruch — there is a general rule: “provided that one does not use artifice (lo ya’arim).” The most lenient explanation is that of the Beit Yosef, who wrote that the sale should not be conditional. But in this case, it is as if a condition was made that the Jew is obligated to take back the chametz if the non-Jew wants — and this condition is prohibited, as explained in the Chayei Adam and Nishmat Adam, and falls under the category of “lo ya’arim” even according to the most lenient explanation of the Beit Yosef.
But even more than this: even the sale as described in the Shulchan Aruch itself requires reconsideration in light of the recently revealed responsum of Rav Amram Gaon, cited by many Rishonim unknown to the Beit Yosef. He explains the statement of the Ba’al HaHalachot Gedolot regarding the Tosefta’s sale and the rule of “lo ya’arim”: namely, that this sale to a non-Jew with the intention of repurchasing it (as in the Tosefta) may be done only once, and not to be repeated in future years, for then it becomes an artifice (ha’arama). And if one does so again, it is forbidden even after the fact after Pesach.
(Apparently, the source for Rav Amram Gaon is the Mishnah in Bechorot 35a about a non-Jew who causes a blemish in a firstborn animal: the first time, the non-Jew doesn’t know it will permit the animal, so it’s allowed — but the second time, once he knows, it’s forbidden. The same principle applies here.)
This responsum was unknown to the Beit Yosef — although he cites Rabbeinu Yerucham quoting the Ba’al HaHalachot Gedolot as saying “provided he does not use artifice,” he did not know what this meant, and therefore tried to explain it as “provided he doesn’t make the sale conditional.” But certainly, had he seen the responsum of Rav Amram Gaon, he would not have permitted what he did.
This responsum appears in many Rishonim not available to the Beit Yosef: Teshuvot Geonei Mizrach uMa’arav (siman 110), the Meiri (p. 6), Maharam Chalawa (p. 30b), Ohel Moed by R. Shmuel Yardoni (Sha’ar HaPesach, Derech 12, start of Netiv 9), Chiddushei Ritva (p. 21a), and the Nimukei Yosef (p. 6a).
The original responsum of Rav Amram Gaon has now been discovered (Genuzina II, p. 326, written in Yarchai Kallah 169 in Shtarot), and everything attributed to him is indeed stated there, without any doubt as to the authenticity of the text. See the Shulchan Aruch (C.M. 25:2 at the end of the Rema) and the Rosh (Sanhedrin ch. 4, siman 6) — that if a responsum of the Geonim is found that was previously unknown, and it appears correct in the eyes of the posek, one must retract [a previous ruling], unless he finds clear reason to disagree. And here, we have not found anyone who saw Rav Amram Gaon’s responsum and disputed it.
And I did not understand at all what the Rav meant in stating that today’s sale is better than in the time of the Shulchan Aruch — for in reality, the opposite is true, as is well known in historical records, that they have continually become more lenient for the sake of the Jew.
Back then, they sold for a small amount (as stated in O.C. 448:3), and did not require the non-Jew to pay more. If he wanted, he could take the chametz without paying more. But now, they have changed the sale, stipulating that what the non-Jew pays is only a deposit, and if he wants to take the chametz, he must pay the full value — as explained in the Biur Halacha (s.v. “bedavar mu’at”) — and for this, he has no intent to obligate himself. (The reason for this change was apparently because there were cases where the non-Jew took the chametz for the small amount paid and did not return it.)
I would be happy to hear the Rav’s response. Thank you.