Question: I own a supermarket where many religious Jews shop. Many of the customers buy on credit. It has come to my attention that some food items sold in my store since Pesach were in the possession of a Jewish distributor on Pesach who did not sell his chametz and thus are prohibited for benefit after Pesach (chametz she’avar alav haPesach).
Am I obligated to deduct from each customer’s account the money I received for the sale of those chametz products? Am I obligated to refund the money I received? Would it matter whether or not the chametz they purchased is still around and can be returned?
Answer: Chazal prohibit benefiting from chametz that a Jew retained in his possession on Pesach, and penalize those who do so. Even if he retained it in his possession inadvertently or accidentally, the penalty applies (O.C. 448:3). Chazal apply the prohibition broadly and prohibit the chametz even to others who did not violate the prohibition of owning chametz. (Pri Chadash 448:3; Shulchan Aruch HaRav 448:1)
Chazal are concerned that since chametz is a food staple throughout the year, if they did not prohibit it even to others, people would retain chametz and simply exchange it with one another to avoid the restriction. (Aruch HaShulchan 448:7)
When food prohibited for consumption was sold but not yet consumed, the customer may cancel the sale by returning the food for a refund. If the food was consumed, there is a distinction between food that is Biblically prohibited and food that is Rabbinically prohibited. When the food is Biblically prohibited, the merchant must refund the money. (C.M. 234:2; Y.D. 119:13; Shach, Y.D. 119:25)
Two reasons are given in explanation: (1) The merchant is penalized since he caused the customer to consume a prohibited food. (Rashi, Bechoros 37a) (2) Eating prohibited food is not a benefit; indeed, it is painful to know that one violated a Biblical prohibition, even though it was done inadvertently. (Sma 234:4)
The difference between these explanations comes into play when the merchant inadvertently sold the prohibited food. If it is a penalty, Chazal did not penalize inadvertent violators, but if the reason is that the customer did not benefit from the food, even if the merchant sold the food inadvertently, he must refund the customer’s money. (Shach, Y.D. 119:25; Aruch HaShulchan, C.M. 234:1 and he follows the first approach. See also Kaf HaChaim, Y.D. 119:78)
When the question involves food that is only Rabbinically prohibited, once the customer ate the food, the merchant is not obligated to refund anything. (C.M. 234:3; Y.D. 119:13) A food that is prohibited for benefit (issur hana’ah) even if only Rabbinically, cannot be sold, and the merchant must refund the purchase price. (C.M. 234:4) In fact, the money the merchant received is considered stolen (see Nachal Yitzchak 81:6:2). Even though the customer enjoyed the food and cannot return it, the merchant must refund the purchase price.
If the merchant realized that he was selling chametz that was owned by a Jew on Pesach, the customer must destroy whatever food remains so that no one should benefit from it. It is not returned to the merchant out of concern that he will sell it to a gentile (Sma 234:2). This concern applies to any item prohibited for benefit, since selling it to a gentile also involves benefit, i.e., profit from the sale. (Rosh, Nedarim 7:5; Rambam, Hil. Ma’achalos Asuros 8:16) In this situation, the merchant must refund the money, even though the customer will not return the food that was sold.
Money Matters: Guarantor Of Asmachta
Based on the writings of Rav Chaim Kohn, shlita
Question: Someone borrowed an item and agreed to pay a $500 penalty if he did not return the item on time. I committed to be a guarantor of the penalty. Am I liable?
Answer: This penalty arrangement is considered asmachta (insincere conditional obligation). Unless the borrower made a kinyan to strengthen the agreement, he is not liable for the penalty.
There is a dispute whether a guarantor is liable for asmachta without a kinyan. Some maintain that if the borrower is not liable, the guarantor cannot be held liable (Shach 129:20).
Others reason that every guarantor commitment is essentially asmachta, since he expects the borrower to pay, but is binding nonetheless because of the lender’s reliance on him. Therefore, the guarantor is liable even for asmachta that the borrower is not liable for. Some limit this to the principle that the lender laid out the money, but others obligate even beyond the amount laid out, as in this case (Rema, C.M. 129:8; Sma 129:25; Tumim 129:7; Imrei Binah, Kinyanim #2).
Due to the dispute, you are liable only with a kinyan (see Pischei Choshen, Halva’ah 13:9). n
This article is intended for learning purposes and not to be relied upon halacha l’maaseh. There are also issues of dina d’malchusa to consider in actual cases.
Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, which is headed by HaRav Chaim Kohn, shlita, a noted dayan. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, please call the confidential hotline at 877-845-8455 or e‑mail firstname.lastname@example.org. To receive BHI’s free newsletter, Business Weekly, send an e‑mail to email@example.com.