PESAH: To sell or not to sell your Hamets?

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THE CONTRACT 
Apart from the prohibition of consuming Hamets, it is forbidden to have Hamets “in our possession” during Pesah. “Possession” or “ownership” is a legal and abstract matter: for example, if there is any Hamets in the house of a non-Jewish person, but it belongs to me, I would be in violation of a biblical commandment. On the other hand, if a non-Jewish person keeps his or her Hamets in a closed space inside my house, I would not be violating any commandment. This concept is the basis for what is called today MEKHIRAT HAMETS, the selling of the Hamets. It works more or less like this: the Jewish communities organize a system of Hamets selling by which community members sign a form, a sort of a “power of attorney”, assigning the rabbi as their legal representative, so that the rabbi can sell the Hamets to a non Jew on their behalf. On the eve of Pesah,  before noon, the rabbi, as a proxy for all sellers, “sells” the Hamets conditionally to a non-Jews: the buyer pays a down-payment for all the Hamets articles, and contractually becomes the legal owner of the Hamets of all those who signed the form. The contract stipulates that if at the end of Pesah the buyer does not pay the balance, then automatically the ownership of the Hamets returns to the sellers . The buyer understands although he could, he should not pay the full balance. Following this stipulation, at the end Pesah, the buyer does not pay the due balance and the Hamets items belongs again to their original owners.
A BRIEF HISTORY OF MEKHIRAT HAMETS
The Talmud does not include the selling of Hamets as one of the normal possibilities to get rid of Hamets. In fact, it demands that all Hamets must be physically removed from our properties. We can also give our Hamets as a gift to a non-jew or sell our Hamets to a no-Jew. A normal sale is one in which the Hamets changes hands (in Hebrew “meshikha”) and the buyer is not expected to return or sell back the Hamets products to the original owner.  Now, the Rabbis also discussed an exceptional case in which they would allow a type of  “conditional selling”, where the buyer is expected to  return the merchandise to the original owner (even in this case, the Talmud refers to a case where the Hamets physically change hands prior to the holiday).In the Tosefta the Rabbis discussed a situation of an extreme circumstance, a Jew carrying his Hamets goods on a ship, the ship is delayed and he will not reach port before Pesah. In this situation a “conditional sale” is authorized to avoid suffering a significant economic loss. For centuries, the rabbis used the case of the Tosefta to authorize this conditional sale of Hamets in commercial cases: a store owner who sells food, for whom getting rid of Hamets would mean a very significant financial loss.
THREE VIEWS ON SELLING HAMETS
In recent years the selling of Hamets became very popular, beyond the commercial sphere. No doubt, this is because this method has many advantages. If you do not want to get rid of your Hamets, you can simply store it in a closed space until the end of Pesah, and sign the power of attorney to appoint the Rabbi. This type of Hamets-selling is totally Halakhic and legal, provided it is done through a rabbi who knows about the details of a purchase agreement. However, as with all halakhic issues, this selling of Hamets, although it is the opinion held today by the absolute majority of the Rabbis, does not enjoy a “total” consensus. There are two other opinions which adopt slightly stricter positions.
One of the stricter opinions, which is gaining more consensus among the rabbis, is that one should ONLY sell items that have “some Hamets element in their composition” (ta’arobet Hamets). For example, alcoholic beverages (ze’a  be’alma), soups that may have some flour, vitamin supplements which may have fiber-grain, foods that have gluten, etc. One should not sell foods that are “totally Hamets” such as bread, crackers, pasta, etc.
The strictest opinion contends that no Hamets should be sold, since the selling, although legal, is fictitious (Hebrew ha’arama). Since the Hamets sold does not change hands, it is obvious that the actual selling is not taking place. In addition, the conditional selling of Hamets was authorized only in extreme circumstances, for substantial financial loss. Personally, I follow this last opinion, partly because I want to keep the tradition of Sephardic Jews who did not practice the selling of Hamets, but simply got rid of the Hamets before Pesah, in accordance with the Mitsva of “tashbitu” as we explained yesterday (see here).   To do this effectively, you should not buy extra Hamets food a few weeks before Pesah, and you should get rid of whiskey, vodka, beer, etc., because they contain Hamets. My experience is that most people who choose to sell their Hamets, do so to avoid having to get rid of their alcoholic drinks.
To decide which position to hold, as in most Halakhic situations, the following variants should be considered:
1. If the potential economic loss is significant (hefsed merube) or not, something that can only be determined by each individual.
2. The traditions of one’s community. Ashkenazi communities tend to be more lenient on this issue, based on the opinion of the Chatam Sofer (1762-1839), who explicitly validated a fictitious BUT legal sale of Hamets, i.e., when there is a signed contract, but the goods are not and will not be transferred from the seller to the buyer.
Also from my own experiences, there are many individuals who sell their Hamets simply for lack of information. Many assume that EVERYTHING in the house is or may contain Hamets.  This belief, of course, makes it mandatory to sell the Hamets. Others believe that the selling is done to cover any Hamets which was accidentally overlooked. Or to sell the Hamets absorbed inside the walls of pats and pans, etc.
This issue is complex – anyone who wants to learn more can open the following links which contain additional information. In addition, they present more details for those seeking to find out more about the third Halakhic opinion, which is the least known.
Click here to know which foods are or may contain Hamets and other details.
See here a summary in English of the article of Rabbi Eliyahu Zini  explaining his view on the selling of Hamets.
This is the full article of Rabbi Zini (Hebrew, recommended for Talmide Hakhamim).
For a final decision on whether/how to sell Hamets, one should consult with the Rabbi of his or her community.