Re: Jew Refuses to Sell Hametz, Bourbon Fans Hardest Hit

In <528cs757l0tjpnoqe6k583r7urksanh76q@xxxxxxx> Yisroel Markov <ey.markov@xxxxxxxxxxxxx> writes:

I don't see anything in the power of attorney regarding "temporary sale."

So what? "Temporary sale" is my description, and it may not be a good
one. I've clarified with my rabbi - he says it's a sale and
repurchase, not a sale that gets canceled.

OK - thanks for that. So I'll eliminate the "temporary sale" argument. But
further - does the rabbi who brokers the sale broker both sides at once?
Or does he broker the first transaction before Pesach, and then the second
one after? I think that makes a difference. Especially since I don't think
the second transaction is halachically permissible if made between two
Jews (although here it isn't, by definition)

I certainly hope that nobody said that! The notion is definitely
recognized, it just isn't applicable to that specific case. An agent
can betroth a woman or deliver a get, just not initiate it.


Once again, I'm not sure why the non-Jew needs to have any understanding
of halacha.

I'm not saying he needs it, only that it may help him "buy into" the
validity of the transaction.

I don't understand this comment. What is there to "buy into?" Either he
has intent to actually purchase, or not.

He's being asked to buy something. Per the agreement I cited
earlier, he's buying it according to the laws of the state of
Massachussets and the United States (in that particular agreement).

I've already said that you're quoting the power of attorney, which is
between Jews - the selling rabbi and his congregants - rather than the
sale contract. The sale/purchase of hametz may need to be valid
according to secular law, but I'm not sure that it does. So you can't
cite anything from that POA as proof.

OK, well that would be an important question, then. The crux, really, if
you'll pardon the expression :-) So does the non-Jew have to have intent
to actually buy, in a real sense, the property? Or not? I'm assuming that
he does.

it's a "for real" sale, then IMO that means that the non-Jew must have
intent that it's a for real sale, and not just some religious expediency.


OK so there we go. This has nothing to do with him "buying into halacha"
then. IMO you are going back and forth on this issue.

No it isn't. The halachic authorities who signed that letter are,
presumably, asking the owner of Sazerac to sell perhaps millions of
dollars worth of inventory to the janitor for maybe $50.

This is the second time that you've missed something I wrote, and not
a minor point, either. To repeat: the selling price is not $25 or $50,
that's only the down payment. The price is set *above* the actual
market value of the hametz being sold. (AFAIK, the addition is less
than the 1/6th that triggers halakhic over-charging.) Under those
circumstances, normally the buyer would be incentivized to sell the
stuff back rather than pay the balance, but as my rabbi's flour-mill
example demonstrates, it's not a given.

OK, fair enough. So once again - we're talking about a potentially
multi-million dollar transaction here. Is the rabbi finding someone who
actually has that much money, and who might actually want the property,
should it come to that? So I'm wondering - under halacha, does a sale
close upon payment of the down payment? Or do you need the entire balance
to be paid?

Ah, here's a good question - there's a fire during Pesach. The goods are
destroyed. The non-Jew gets the insurance payout, right? Somehow I doubt

The mechanics would be: the non-Jew files the claim with the bill of
sale attached. The insurance company validates it and pays him. He
then pays the balance of the agreed-upon price to the Jewish seller.
(To short-cut the process and achieve the same result, they may agree
to have the Jew file the claim as if the sale had not occurred.)

If you can rescind the sale in such a manner, then IMO the sale wasn't
"real" to start with. If you rescinded the sale like that, wouldn't the
parties at least potentially be guilty of insurance fraud?

But since the Gentile buyer is on the hook for the deductible and any
excess of the price over the insured value, what if the results are
not the same? I don't know how it's actually done, but if I were the
rabbi selling insured business inventories, I'd make sure that the
buyer understood this contingency, and that our arrangement
compensated him for that risk. (Or maybe even indemnified him.)

OK, so let's see one of the contracts. Do you have access to any? It might
resolve some of these questions.

"Only insofar as it imperils the non-Jew's intent" - that's exactly what
I"ve been saying all along, Yisroel. It's evidence that neither party
truly has intent. Thus, it's not really a sale. You still haven't
addressed this point.

What haven't I addressed? You've attempted to establish a hazaka of
talmudic proportions - that a non-Jew always regards an illegal sale
as invalid. I don't buy it. And that's only regarding the Gentile - I
don't see where you get that "it" (whatever "it" is, I'm no longer
sure) is "evidence that neither party truly has intent."

No, you're misunderstanding my point. I'm saying that the fact that the
Jew, the rabbi broker, and the non-Jew are all perfectly willing to enter
into this deal regardless of any legal, tax, finance, or insurance
outcomes suggests that none of them truly have intent to buy/sell. That
it's a religious exercise, not a true sale.

I don't understand what that means. Please give me one example in secular
law or halacha of a valid "temporary sale." Your repo would NOT be such an
example - it's two transactions in one.

So is the sale of hametz, then.

Is it? Do you have the documents showing that's how it's done?
Am I allowed to enter into an agreement to purchase chometz on Pesach
provided that delivery isn't scheduled for after Pesach? Seems like you
might be deriving benefit in some way, at least potentially...

Show me where in the books a person records his sale of chometz.

I'd have to find a Jewish-owned company and its quarterly financial
statements for a year in which month-end fell during hol ha-moed. And
if that hametz inventory isn't shown as sold, I'd report a GAAP
violation if I were the auditor.

Would you really? So your assumption is that Jewish-owned businesses do,
in fact, report the sale of chometz on their quarterly reports? It should
be easy enough to find evidence of this.

BTW, do you know that a drug dealer can be prosecuted for not
reporting taxable income from his sales of heroin or whatever?

Sure, absolutely. And that the IRS will allow you to report illegally
obtained income, I assume without reporting you to the authorities.

But I think you're missing my point - clearly people can have intent to
make illegal purchases. The guy buying heroin on the streetcorner has
intent to buy, and the dealer has intent to sell. What I'm saying is that
the legal ramifications HERE, though, are evidence that the people
involved likely do NOT have intent. The guy buying heroin knowns he's
risking prison - I suspect that the people involved in the chometz
transaction have no idea that they're violating the law and could go to
jail, and if they did know that, that they'd most likely refuse to go
through with it.

No, I really don't. What's a "complete" sale?

Depends on applicable law, Steve. That's the purpose of those fine
distinctions I've been making. It can be a completed sale for GAAP
and/or the IRS, but not for the purposes of Kentucky liquor law.

This is called "hair-splitting" Yisroel. IMO, the question shouldn't be
that complicatd - is it a sale, or not? It doesn't depend on what "is"
means, to quote Mr Clinton.

- I don't understand the basis under which you're (IMO) inventing new
categories of sales. Is there anything in halacha other than chometz to
support this notion of a temporary sale made without intent?

In this particular instance I'm talking only about secular law(s).

Right, so is the janitor (in the standard case, not necessarily the
Sazerac case) expected to be an attorney, who will understand the
difference between a "sale" and a "complete sale" whatever that is?

I don't understand your point about delivery and possession - the chometz
IS delivered, and it IS in the possession of the non-Jew. That's in the
agreement itself. If the chometz were still in your possession, then
there'd be no point in going through the sham, um, I mean exercise, would
there? :-)

Again, depends on which law is applicable. "Has access to it and can
get it any time" is enough to establish ownership in halakha and civil
law, but not necessarily enough to count as delivery and possession
under Kentucky alcohol control laws.

Not necessarily, no. But once again you're missing the point - if you
THOUGHT that by signing the piece of paper the rabbi offered you were
risking jail time, would you sign it? I wouldn't.

This dovetails with another point I've made recently - that it makes
little or no sense to judge one system by the rules of another.

Sure. But here, that's not what you're asking me to do. This is a
transaction between a Jew and a non-Jew. As you said above, the non-Jew
needs to consider this a real transaction, via HIS OWN SYSTEM for it to be
legit, right?