Is it already possible to appoint an agent for selling chometz now?

Is it already possible to appoint an agent for selling chometz (leavened products) now?

Someone who wants to sell his leavened products through a rabbi early, can do so without any problems or concerns.

What we have to discuss here is this: is there any halachic problem, or not, if someone already wants to sell his leavened products through a rabbi now. The root of this question is this. Do we say that after one already signed the form with the rabbi, which essentially means that the rabbi was appointed an agent for selling the leavened products to a gentile, the leavened products that one acquires afterwards won’t be included in agent’s power to perform a sale on one’s behalf. Could it be that even if the seller specifically gives his agent the authority to sell the products that the seller acquires after having appointed the agent, the agent still won’t have the authority to sell them?

The Tosafos commentary to the Talmud (Nozir 12a) states that an appointment of an agent will not apply to something that doesn’t yet exist. Tosafos adds that it is customary that a woman tells another woman: ’knead the dough and separate challah from it for me’, even though at that moment the dough doesn’t yet exist, only the flour exists. How can such an agent be appointed when even the one who appoints him (the first woman) cannot perform the action that the agent is being sent to perform? (That is, the first woman cannot separate the challah herself either, since the four hasn’t yet been made into dough.) The answer that the Tosafot gives to this question is that because the first woman has the ability to make dough out of the four and separate the challah from the dough herself, she can also appoint an agent to do this, even though the dough doesn’t exist yet.

At any rate, according to the Tosafot, it’s impossible to appoint an agent whose task is to perform an action on something that doesn’t exist at the time of the appointment. Therefore, it would seem that one should appoint an agent for selling one’s leavened products only at the time when one is not going to buy any more leavened products, nor acquire them in any other way (before Pesach). However, the custom is that such agents are appointed at the time when the seller might still acquire more leavened products. Therefore, we should provide an explanation why this is indeed effectual.

Later commentaries discussed this question at length, and provided a number of ways of settling it. Here are some of them:

1. In responsa collection Oneg Yom Tov (chapter 38) the author explains it thus. It states in the Talmud (Bava Metzia 66b) that even though the law is that a person cannot sell something that does not exist, if such an object was erroneously sold, and then came into existence, the buyer can seize this object, and the court cannot thereafter confiscate it from him (even though the original sale was invalid). The reason for this is that “a person wants to retain his status as someone who is reliable”. That is, since the seller told the buyer that he sells the object to him, even though the sale was invalid, because the object did not exist at the time, what the seller meant is that the object will be acquired by the buyer once it comes into existence. Now that the object did come into existence, and the buyer seized it, the seller doesn’t want to break his word, so the court will not confiscate the object from the buyer.

Thus, writes Oneg Yom Tov, such is the law in our case too; since the gentile is renting the place where the leavened products are kept, then anything that is put there, even after the appointment of the agent, is considered as if the gentile has seized it. And this happens after these products come into existence, therefore, his seizing them confers ownership of these products upon him, as is discussed in Bava Metzia. And therefore, if someone appointed an agent to sell his leavened products and then bought some more leavened products, it’s not a problem, since this is considered as if the gentile seized these products, and thus acquired ownership, even though at the time when the agent was appointed, these products did not yet exist.

2. There is another explanation of this in the responsa Divrei Chaim (chapter 1), which for the most part follows the logic of Oneg Yom Tov, but adds that it says in the Remo (commentary to the Shulchan Oruch, section Choshen Mishpat, chapter 209, §4) that if at the time of the sale, a contract was signed between the two parties, then this is considered the same as a seizure by the buyer. And this seizure confers ownership of something that did not exist at the time the contract was signed, when that object comes into existence. This is also the opinion of the Nesivos ha-Mishpat, Turei Zahav and Ktzos ha-Choshen. They all write that even if the contract was signed before the object came into existence, the sale is still valid. And the same applies to the selling of leavened products. Even though some of them did not exist at the time the sale was performed, the appointment of the agent is still valid even for selling the products that did not exist at the time of the appointment, since there is a written contract. This is the opinion of the Divrei Chaim.
3. There is another understanding of this that we find in the book Mirkeves ha-Mishne (laws of divorces, chapter 6). The author writes that when there is a contract, then the appointment of an agent is valid even for selling objects that did not yet exist. Since the contract is in the hands of the agent, then his appointment renews itself to include the products that came into existence after the actual appointment.
4. In the responsa Divrei Malkiel (vol. IV, chapter 22, §50), the author expresses his dissatisfaction with the explanation of the Oneg Yom Tov. He says that it’s true that when someone sells something that doesn’t yet exist, it’s logical to say that the seller “wants to retain his status as someone who is reliable”. And therefore, if the buyer seizes the object once it comes into existence, this will confer ownership upon him. But as far as appointing an agent to sell something that doesn’t exist is concerned, this reasoning doesn’t apply. Therefore, the author writes a different explanation. He states that, since the rabbi who sells to the gentile is being paid for his efforts, he’s considered a worker who works for the seller. And a worker can sell something that at first did not exist, since he is acting on behalf of the seller. (That is, the sale will take place whenever the object will come into existence.) (See Bava Metzia 10a.)
5. There is an additional explanation of this, which appears in the responsa Tzemach Tzedek. He says that even though the law that “one can acquire an object for someone else not in his presence” does not apply when one sells leavened products, nonetheless, in our case, when there is an agent that sells these products, even the ones that were acquired after the agent was already appointed, since the seller stated clearly that he wants the rabbi to sell all his leavened products, even though normally agency does not apply to objects that were acquired after the appointment, nonetheless, this particular appointment will apply to the objects that were acquired after the appointment, because “one acquires for a person even not in his presence”.

The conclusion that follows from all this is that if one wants to sell his leavened products through a rabbi ahead of time, one can do so, and there is nothing to be concerned about.

A Jew who wants to sell his chometz through a rabbi early should consider whether there is any halachic concern or if it is a sale without any concern. The root of the issue is that after signing the chometz sale form with the rabbi, which is essentially appointing the rabbi as an agent to sell the chometz to a non-Jew, the chometz purchased after signing is not included in the agency. Even if the contract specifies that future chometz is also sold, there remains the question of whether one can appoint an agent for something that does not yet exist. Tosafot (Nazir 12a) writes that appointing an agent does not apply to something that does not yet exist. They explain that a woman can tell another woman: "knead the dough and separate challah for me," even if the dough does not yet exist, only the flour. This is possible because the first woman can knead the dough and separate the challah herself, so she can appoint an agent for this action, even if the dough does not yet exist. From Tosafot's words, it is clear that appointing an agent does not apply to something that does not yet exist. Therefore, it would seem that one should appoint an agent for selling chometz only when one does not plan to buy more chometz and will not acquire anything new until the end of Pesach, except for what was present at the time of appointing the agent. However, our custom is not like this. We appoint an agent even if we plan to buy more chometz afterward. It is necessary to understand why this is permitted. Some later commentators discuss this issue and offer several explanations:

1. In the responsa "Oneg Yom Tov" (chapter 38), it is explained that in the Talmud (Bava Metzia 66b), it is stated that although by law one cannot sell something that does not yet exist, if such an item was sold, and after it appeared, the buyer seized it, it cannot be confiscated from the buyer. The reason is that "a person wants to be considered reliable." Therefore, if the buyer seized the purchased item when it appeared in the world, he thereby acquired it. Following this logic, in our case, since the place where the chometz is located is rented to a non-Jew, all the chometz that ends up in this area is also considered acquired by the non-Jew, even if the chometz was placed there after appointing the agent. This is considered as if the non-Jew seized the chometz after it appeared in the world. And if he seizes such an item, he acquires it, as explained in the tractate Bava Metzia. From this, it follows that there is no problem appointing an agent for selling chometz, and afterward buying more chometz, as it is considered as if the non-Jew seized the chometz purchased after appointing the agent, and this acquisition is valid even for something that did not exist at the time of appointing the agent.
2. Another explanation is given in the responsa "Divrei Chaim" (chapter 1). It follows the logic of "Oneg Yom Tov" and adds that in the commentary of Remo (on "Shulchan Aruch," section "Choshen Mishpat," chapter 209, paragraph 4), it is written that if there is a written contract securing the sale (of something non-existent at the time of signing the contract), the contract itself is considered as a seizure by the buyer. And this seizure is the acquisition of something that did not exist before, at the moment it begins to exist. This is also the opinion of the authors of "Netivot ha-Mishpat," "Turei Zahav," and "Ktzot ha-Choshen." They state that even if the sales contract was signed before the seller had the chometz products, he can dispose of them through the agent, as the agent signs the contract with the buyer.
3. In the book "Markevet ha-Mishne," another reason is given for why such a sale helps dispose of chometz. It is written that since at the time of purchasing the chometz, the contract is still in the hands of the agent, it is as if a new appointment of this agent occurs.
4. In the responsa "Divrei Malkiel," a counterargument is presented to the words of the author of "Oneg Yom Tov." The author writes that indeed, regarding the sale of something that does not yet exist, one can say that "a person wants to be considered reliable." Therefore, if the buyer seized the purchased item when it appeared in the world, he thereby acquired it. However, this is not related to appointing an agent for selling something that does not yet exist in the world. Because of this, "Divrei Malkiel" offers another reason why such a sale of chometz is valid. He writes that since the rabbi receives payment for his work, he is considered a worker. And a worker can acquire something that does not yet exist in the world, as "the hand of the worker is like the hand of the owner" (Bava Metzia 10a).
5. Another explanation is given in the responsa "Tzemach Tzedek" (chapter 46). The author writes that although in a typical situation, the rule that "one can acquire something for a person not in his presence" does not apply when selling chometz, nevertheless, since in this case, the owner of the chometz expressed a desire for the rabbi to sell his chometz, this sale extends even to what the owner acquired after appointing the agent. In other words, although at the time of appointing the agent, it was impossible to sell this chometz because it did not exist, and the agent's authority did not extend to it, after this chometz appears, the agent's authority begins to extend to it, as "one can acquire something for a person not in his presence."

The conclusion from all that has been said is that someone who wants to sell chometz early through a rabbi can do so without any concerns.