Mechiras chametz accomplishes two functions. It prevents the owners of the chametz from violating the issurim d’oraisah of ba’al yiraeh uba’al yimatzey and it saves the chametz from becoming chametz she’avar alav hapesach (mid’rabanan). Ideally we try to arrange all sales in the most lichatchila manner so as not only to protect the kashrus of the products but also to prevent the owners from violating issurim.
Mechiras Chametz today is typically arranged by authorizing a Rabbi to act as the legal agent on behalf of the one selling the chametz. This same procedure is utilized in regards to mechiras chametz for companies. However the question arises, who may authorize the sale of chametz on behalf of a Jewish owned company?
- The best procedure is to have the Jewish owners themselves sign the authorization shtar.
- Where this is not possible, it is questionable whether a non-Jewish manager may authorize such a sale on their behalf. However, since the issue as far as the OU is concerned is only in regards to the issur dirabbanan of chametz she’avar alav haPesach both Rav Belsky and Rav Schachter feel that there is room to be lenient.1 However, this manager must have decision making powers regarding buying and selling on behalf of the company.2
- If the Jewish owner delegated the responsibility of selling the chametz to someone in the company then this is also acceptable 3 even if this person does not have any decision making powers. However, this must be done with a formal written authorization. One who has no decision making powers and was not delegated may not authorize the sale of chametz.
Rav Moshe Feinstein Zt”l (Igros Moshe O.C. I:149) validated the sale of chametz performed on behalf of Jewish owned supermarkets, even though they did business with the chametz on Pesach. However, Rav Moshe’s leniency only applies to items that were in stock from before Pesach and were not sold during Pesach. Therefore, this leniency has little relevance for Jewish owned companies that continue to receive, produce, and/or sell chametz on Pesach. Additionally, Rabbi Genack had been told by Rabbi Soloveitchik not to allow sales which clearly show there was no intent to conduct a sale, unless there are other mitigating factors. Therefore, OU policy has been:
- When a company is completely Jewish owned and is involved with real chametz then a mechira is only acceptable if the company ceases all chametz operations for the duration of Pesach. They may not accept deliveries of chametz, nor may they ship out chametz products. For these purposes we consider flour to be real chametz.
- If non-Jews are the majority stockholders in the company then we may allow the Jewish partners to sell their share of the company to the non-Jewish partners for the duration of Pesach.4
- Even if the Jewish partners are the majority owners, there are still instances where we permit the sale of the company to the non-Jewish partner. For instance, we can allow for a sale, if the chametz in question is only ta’aruvas chametz 5 or is whiskey 6 or there are other mitigating factors.
If one has any question as to whether a Jewish owned company may have their chametz sold then this should be discussed with the poskim and resolved before accepting to certify such a company.
2. Rabbi Belsky explains that mechiras chametz is considered a wise business decision and failure to arrange for a mechiras chametz will cause the company a huge financial loss. Those who are in managerial positions who can avert such a loss are obligated to do so. From a legal standpoint, if a manager has the opportunity to take steps to avert a loss and fails to do so, they can be held liable.↩
3. Since the Jewish owner was migaleh da’as that he would like the OU to sell his chametz.↩
4. Zecher Yitzchak (R’ Itzila Ponovitcher) Siman 8 brings two reasons to be lenient when a Jew is a minority stockholder. The portion of chametz she’avar alav hapesach in the bread is batel b’rov. Also a corporation is an independent entity and the minority stockholder does not have direct access to the chametz. In this sense the chametz is aino b’rishuso. In such a case we can be lenient and allow for a sale.↩
5. There are opinions that hold that one does not violate bal yiraeh for ta’aruvas chametz that is less than a kezayis b’chdei achilas pras (Magen Avrohom 442:1). Though we do not follow this opinion, nevertheless we can rely on a sale in such a case.↩
6. There are opinions that hold that whiskey is zeiya b’alma. We can therefore be lenient in regards to selling such chametz.↩