Submitted by the Bais Hora’ah
Q: A grocery store owner signed a mechiras chametz contract authorizing the Rav of his shul to sell his chametz to a non-Jew. After Pesach, the Rav found this contract in his coat pocket, and realized that he had forgotten to sell the chametz in this grocery. Is the chametz now forbidden, and if it is, is the Rav responsible to pay for it?
A: The first thing we must determine is whether there was in fact no mechirah in this case.
Generally, the contract between a Rav who sells chametz and the non-Jewish purchaser states that the Rav is selling the chametz of all those who appointed him as their agent, even if he lost one of the mechiras chametz contracts or forgot to hand it over to the non-Jew.
In all likelihood, then, this grocer’s chametz was sold.
But let’s examine the hypothetical case in which a Rav did not include all the chametz of those who appointed him their agent to sell their chametz. Would he then be liable for the chametz he failed to sell?
Chazal decreed that chametz that belonged to a Jew during Pesach is prohibited, as a penalty for having transgressed the prohibitions of bal yera’eh and bal yimatzei. Although it would seem that this penalty should not apply to someone who kept chametz in his possession inadvertently (shogeg) or was forced to do so (oness), Chazal in fact did apply the penalty even to cases like these, out of fear that if they penalized only those who deliberately kept their chametz, people would be more lax about keeping chametz and more likely to transgress (O.C. 448:2). Therefore, although for the grocer it was oness, the chametz would be forbidden after Pesach if the Rav did not include it in his sale, and the grocer would have to destroy all of it.
Would the Rav have to reimburse the grocer for the resulting financial loss?
Two precedents indicate that there is no obligation to pay:
A Jew who steals chametz from another Jew and keeps it over Pesach may return it after Pesach and claim that he is returning it as is (harei shelcha lefanecha), even though the owner is forbidden to use it (Shulchan Aruch, Choshen Mishpat 363:1).
If a shomer (guardian) did not sell chametz he was asked to safeguard, the Poskim (Shach ibid. 7; Magen Avraham 443:5; Pischei Choshen, Pikadon, note 104) debate whether he is required to compensate the owner for his loss. But even those who would require the shomer to pay might exonerate the Rav in our case, because he was not a shomer (Shaar Hatziyun 443:16).
In both of these cases, a person responsible for someone else’s chametz not being sold over Pesach is absolved from paying for it, which would seem to indicate that the Rav should similarly be absolved.
Nevertheless, the Rav might have an obligation to pay because this is a case of garmi (direct causation), since the grocer was relying on the Rav to sell his chametz (see Shulchan Aruch, C.M. 306:6, and Mishpat Hamazik 17:9).
However, since the chametz will generally not become forbidden (as we will explain shortly), the Rav will not be required to pay (Shulchan Aruch, ibid. 306:5).
There are several factors that combine to render the grocer’s chametz permissible for use:
Some authorities suggest that chametz kept in a case of oness becomes prohibited only if the owner also failed to be mevatel (nullify) his chametz. A person who nullifies his chametz has already fulfilled his Torah-level obligation to remove chametz from his possession, so he is not subject to the penalty levied on those who own chametz on Pesach. Some Poskim rule that we can rely on this heter in all cases (see Aruch Hashulchan 443:3 and Mekor Chaim 14), while others apply it only in cases of significant financial loss (Mishnah Berurah, ibid. 25; Bi’ur Halachah, s.v. Afilu).
Some Poskim rule that since the circumstances causing the oness are so unusual that it would never occur to anyone to prevent such an eventuality, Chazal did not levy a fine on the owner for failing to rid himself of the chametz (Beis Meir, cited in Mishnah Berurah 448:9; see Kovetz Mibeis Levi 15, p. 85).
In this specific case, since the grocer tried to sell his chametz, we have no reason to levy a penalty that was instituted in order to prevent people from failing to eliminate their chametz (Shu”t Shoel Umeishiv, Mahadurah Kama 2:41, cited in Shu”t Maharsham 6:2, and see Shu”t Chasam Sofer 133).
As noted above, however, in all likelihood, the chametz was sold, and no case needs to be brought against the Rav.