[Avodah] prozbul & heter iska (Michael Makovi)

[Zev Sero]

Micha Berger wrote:
> On Wed, 21 May 2008 14:24:08 +0300, R "Michael Makovi" <mikewinddale at gmail.com>
> wrote:
> : Rav Moshe Feinstein was asked about a Jewish-owned store that sold its
> : chametz to a gentile, but continued to sell the chametz to customers
> : over Pesach, while the sale to the gentile was still in place. RMF was
> : asked, perhaps this shows the sale to the gentile was invalid? RMF
> : answered, the guy is simply transgressing gezel from the gentile to
> : whom he sold his chametz, but this doesn't invalidate the original
> : sale for the purposes of owning chametz over Pesach.
> 
> I have an underlying question trying to understand RMF's pesaq...
> 
> When does a haaramah turn into an asmachta? It's kind of hard to believe
> that someone who does such a sale of his chameitz year after year really
> thinks he sold anything. Why is the qinyan valid?

How about Devarim Shebelev Einam Devarim.  When you make a kinyan with
sudar, kesef, shtar, and tekiat kaf (the sale I observed this year used
all four), it's hard to say "I didn't mean it"; if you appoint a shliach,
and he does all that, and then you say "I didn't mean to appoint him,
I didn't think he would really sell it", perhaps you'd have a taanah,
except what is the poor customer to do?  He bought it in good faith, and
at the very least takanat hashuk should cut in his favour.

As for the Jew being a gazlan, since we know the goy bought the
chametz in order to sell it at a profit, not in order to keep it
for himself, you're doing him a favour by selling his chametz for
him.  Of course he might want a bigger cut than the usual profit he
makes on the deal...  One might argue that the entire profit made
from the chametz sold on Pesach should be turned over to the goy,
but I guess that gets into hafka'at chov rather than gazel...

-- 
Zev Sero               Something has gone seriously awry with this Court's
zev at sero.name          interpretation of the Constitution.
                       	                          - Clarence Thomas