Who can witness the sale of chametz?

Question

Our shul's practice (which I imagine is very common) is for members of the community to appoint the rabbi as their agent for selling chametz. The rabbi then sells everything to a local priest, along with storage space where the chametz is located. The sale is also witnessed by two Jewish men of good standing in the community.

A question came up as to whether someone who has appointed the rabbi as his agent can be a valid witness to the sale. I know that in other situations there are sometimes restrictions on who can be a witness (e.g., relatives are not valid witnesses for a ketubah). It seems suspicious to me that one who has an interest in the contract would also be a witness.

How would this work in a small community, where essentially everyone appoints the rabbi and it would be difficult to find two independent witnesses? Would the witnesses need to make their own sales separately?

Answer 1

From Rambam Hilchot Mechirah 1:2:

"If, however, the purchase is completed through one of the media by which property is transferred, the purchaser acquires the object. There is no need for witnesses; neither the seller or the purchaser may retract."

This indicates that nobody need witness the sale of chametz.

Answer 2

I don't think that being a member of a congregation would prevent someone from being a witness to a chametz sale; I think only relatives of rabbis/congregants are problematic.

I observed Rabbi Mordechai Willig's chametz sale today. At the sale, he asked only that the witnesses to each rabbi's sale have no relatives among the sellers in another rabbi's congregation. The witnesses were mostly other rabbis who were waiting to sell their own congregation's leaven; for the most part, they all seemed to be friendly with each other.

Answer 3

This answer can be improved. I do not have enough time now.

Short answer:

According to both Jewish Law and American Law (as far as I know) a sale is legally binding as long as there was a meeting of the minds (true agreement) and an exchange of consideration (payment) and an execution (kinyan-transaction took place).

Witnesses are not needed for a financial transaction to be valid and binding on the parties. Witnesses serve to enforce the truth of the contract/sale in case of a dispute. (An exception would be Jewish marriage where witnesses actually effect the marriage event. Without witnesses to a marriage, it didn't take place in Jewish Law). The sale of chametz is a simple financial issue and no witnesses are needed to accomplish the sale, Jewish or Gentile.

The use of witnesses at all, is an extra measure to give pomp, ceremony, and decorum to the transaction. It creates the air of official business. This is done because the Jewish Rabbis of Europe (from about the 1500's to 1900's) were divided about the truth of any such large scale transaction/sale of a community's chametz to Johnny Gentile. Many Rabbis said the whole thing is a scam. Johnny doesn't want the bread nor does he have the funds required to buy it all. The Jews don't know what they are selling and what they are being paid. The Gentile defaults every year like clockwork and receives a bottle of wine from the Rabbi. Its a joke! So the objection was that such sales are a mere charade of a formality. Many Jews today will not rely on selling chametz to a Gentile in order to buy it back after Pesach.

The Chasam Sofer was the main Rabbi who voiced the opinion that all such sales are definitely valid. Many Rabbis and communities follow this opinion because as long as the transaction was made properly, it works..period.

However, in deference to the objectors who would cast doubt on such sales, many things are done to show it is in fact a real business deal. Witnesses bolster this viewpoint.

In reality, they would only be needed if someone disputed the transaction after the fact. If that would happen, the two witnesses could surrender their share in the transaction. This sacrifice would allow them to testify in a Jewish court (Rambam hilchos Edus). An American court would still accept their testimony anyway but the judge would take their position in the deal into consideration when hearing their testimony and cross examination.

I hope this helps. Chag Kosher V'Sameach