[Avodah] Selling open boxes

[Chana Luntz]

> Micha Berger wrote:
> > On Mon, Apr 20, 2009 at 11:04:11PM -0400, Zev Sero wrote:
> 
> >> We are not mindreaders, and it's no concern of ours *why* he wants
> >> the chametz, just that he does...
> 
> > If this were true in general, asmachta and haaramah wouldn't be halachic
> > topics. At times we are mindreaders, and say that the contract isn't
> > being taken seriously.

And RZS replied

> Devarim shebelev einam devarim.  It doesn't matter how seriously he
> takes it, or doesn't.  Asmachta is irrelevant;

Well the thing that I find a bit tricky about this is that these are all
halachic concepts, but for the sale to be a sale the sale to the non Jew has
to be done, by definition, under local law - which for most of us is some
form of common law contract law.  Of course the precise nature of these laws
differs from jurisdiction to jurisdiction, so what is applicable in England
is not necessarily applicable in the US, or Canada, or Australia, or Israel,
but:

a) Is it in fact legal in the local jurisdiction to sell open boxes - for
health and safety reasons?  I don't know the answer to this, and there are
clearly jurisdictions that are more and less concerned about health and
safety - but is anybody doing these sales keeping an eye on the modern
legislation?

b) are people checking the use-by-dates on the packages - again depending on
the local jurisdiction, it is most likely that the buyer has a right to
rescind the sale if the packages are past the use-by-dates and it therefore
may be OK if he does not choose to exercise such a right, but it is also
possible that the sale is technically void.

c) the assumption that a sale is a sale if it is valid on the face of the
contract, regardless of the intentions of the parties is a principle
strictly of law, but equity has increasingly, in most common law
jurisdictions, been looking behind such legal principles (acting as a sword
and not a shield), and thus the question, it seems to me, is not (or not
just) is it a harama according to the halacha, but is it a harama according
to the common law of the local jurisdiction, and would the courts of the
local jurisdiction enforce such a contract if it was clear that the
intention of the parties was not as on the face of the contract.  In Israel,
because of their understanding of the interplay of halacha and the nature of
this contract, they might well be prepared to enforce it (on the other hand
think of the heter iska etc judgments) - in other jurisdictions, I think it
must be seriously open to question - and, I cannot see how we can rely on
the fact that the legal system of 18th century Lithuania, or wherever, would
necessarily allow for such a sale to determine that such a sale is therefore
valid in the context of modern legal systems.

d) there may be other consumer protection legislation to consider aside from
the ones that I have mentioned above.  Note that this is one reason why a
sale of a business of all its chametz is far more likely to be valid than
the sale of individual households.  A business sale of its chametz can much
more easily be seen as the sale of an aspect of a business as a going
concern - which would not necessarily trigger the same level of scrutiny as
a domestic sale.

e) the classic questions as to who bears the loss if the chametz is damaged
(eg by fire or flood or even the freezer breaking down) would also
presumably need to be fundamentally dealt with under local law.  This is
likely to be complicated by the existence of house and contents insurance.
Technically would the non Jew have the right to claim on the house and
contents insurance?  Would the insurance company be able to say that since
at the time the chametz was not owned by the person taking out the
insurance, there is no possibility of claim?  How does the non Jew ensure
that all the domestic parties have taken out adequate insurance (or does
whoever enables the sale to the non Jew ensure that insurance for damage or
loss is provided)?  Again in the Israeli business context I would imagine
this is easier to deal with - an insurance company insuring a baker such as
Angel will know, or a good lawyer will have drafted into the contract, that
the chametz will be sold every pesach, and ideally that the purchaser will
be covered by the insurance policy for the duration of the sale (but query
if the insurance company is Jewishly owned ....).  Or is the assumption that
the original owner of the chametz will bear the loss if the chametz is
damaged during pesach (which by the way may be a reasonable risk for
householders to take, but probably not for business)?  This is presumably a
question that has been dealt with in the past, although absent the existence
of insurance companies.

 there is no future
> commitment to do anything.  I don't know what ha'arama has to do with
> it, maybe you meant ona'ah, which is only relevant if there was a
> misrepresentation of the market price.  Since the mechira is at the
> market price, whatever it should turn out to be, there can be no
> ona'ah.

To what extent do questions of ona'ah apply to any transaction with a non
Jew under the law of the local land?

> --
> Zev Sero                      The trouble with socialism is that you

Regards

Chana