Buying Jewish Whiskey

Print Friendly, PDF & Email


Nathan B. Oman (introduction by Chaim Saiman)

In his classic 1941 law review article, “Consideration and Form,” the legal theorist Lon Fuller explained that the need for contractual formalities is inversely related to the substantive grounds of the transaction. “Where life has already organized itself effectively,” argued Fuller, “there is no need for the law to intervene.” But when the business rationale is less apparent, formalities become necessary to draw attention to the legal implications of the undertaking.

Reading this article as a first-year law student, I recall excitedly scribbling “mechiras chametz” on the margins of the page. Indeed, the annual ritualized sale perfectly encapsulates Fuller’s thesis. Few of us bother to reflect on the halakhic status of transactions undertaken in the course of daily life. Jewish law willingly incorporates commonplace practices such as handshakes, signing contracts, or simply paying by credit card or Venmo in order to validate a transaction or sale. But when economic logic is absent, formalities arise. The sale of hametz transforms into a ritual act where virtually every formality known to both Halakhah and American law is invoked. In recent years, rabbis have even added a ceremonial component, inviting their communities to witness the transaction, using it as an educational opportunity to explain the laws of Pesah as they relate to the sale of hametz.

I met professor Nate Oman many years ago, and we quickly bonded over our mutual love of contract law, legal theory, detailed points of legal analysis, religion, and the joys and complexities of living a religious life in the modern world. Nate is one the nation’s leading contract law theorists and commercial law scholars. He is also a committed Latter-day Saint (Mormon), and a keen observer of religious life who has written on Mormon history and theology. In his review of my book, Halakhah, Nate admitted to some “holy envy” over the fact that, for Jews, the study of Talmudic contract law is a spiritual endeavor that brings us closer to God. Ashreinu mah tov helkenu. 

Nate would have loved and excelled in yeshiva, but it might have gotten tricky when it came time for shidduchim—though in truth, Nate came pretty close to the kollel life when he spent a semester living in Ma’alot Dafna during his position as a visiting professor at Hebrew University. But since yeshiva was not an option, I thought of the next best thing—Nate would serve as the gentile designated to purchase our hametz. 

Nate visited my family last Erev Pesah and was amazed that all my children were industriously cleaning and vacuuming the house after the hametz breakfast. (I assured him that this occurs exactly once a year). I then brought him over to my friend, Rabbi Itamar Rosensweig, a Maggid Shiur at YU, Haver of the Beth Din of America, and legal philosopher who has written extensively on modern applications of commercial Halakhah. R. Rosensweig acted as the agent for his kehillah in Lower Merion, PA, to sell hametz to Nate. We then went off to the communal hametz-burning which, per recent custom, included music and dancing—all overseen by the local fire department.

Nate’s reflections showcase cross-faith interactions at their best. Just as Alexis de Tocqueville in his famous 19th-century Democracy in America used his outsider status to help Americans better understand themselves, Nate’s sensitive reflections draw on jurisprudence and comparative theology to offer a deeper understanding of our own practices. Nate helps us to see that, more than merely a ritual or a sanctioned loophole, the sale of hametz teaches us something important about the nature of Halakhah and Jewish life.

– Chaim Saiman

In a lovely spring garden in suburban Philadelphia, I handed cash and a handkerchief to my friend’s rabbi. It was the first time that I, an observant Latter-day Saint (Mormon), had ever purchased whiskey. (Latter-day Saints are prohibited from consuming alcohol, although they are permitted to own it.) For the next two weeks, however, I would own a large store of booze, along with a number of half-used boxes of breakfast cereal, and a lease on a very nice apartment in Jerusalem. At the suggestion of my friend Chaim Saiman, I had agreed to act as a friendly gentile, purchasing the unused hametz (leavened foodstuffs) and its storage locations that the members of his synagogue were prohibited from owning during Passover. At the conclusion of the holiday, I could—if I so chose—sell the whiskey back to its original owners.

As law professors, Chaim and I share an interest in jurisprudence, law and religion, and contracts. As observant believers, we are both fascinated by the place of religion in the secular world and the way that adherents manage the negotiation between tradition and modernity. The result has been a years-long running conversation on law, contemporary politics, faith and commerce, and—inevitably, given Chaim’s dual training in yeshiva and law school—Halakhah, the vast corpus of Jewish law. When Chaim explained to me that prior to Passover it was possible to avoid the need to dispose of one’s whiskey and other valuable hametz by selling it for the duration of the holiday to a gentile, I had a new ambition. Legal scholars have long studied how parties use contracts to bargain around troublesome rules. I was fascinated by the idea of contracting around divine law. When I explained to another friend and faculty colleague why I was driving from southern Virginia to Philadelphia in the middle of the week, he said, “Law, religion, and contracts. It’s like a religious ritual specifically designed for Nate Oman.”

As I understand it, the legal basis for my trip to the Pennsylvania garden begins with Exodus 12, which describes the first Passover and sets forth the rules to be followed thereafter. In verse 15, the text reads: “Seven days you shall eat unleavened bread. On the first day, you shall remove leaven from your houses. For if anyone eats what is leavened, from the first day to the seventh day, that person shall be cut off from Israel.” The exposition of this rule in Jewish law begins with the earliest halakhic text, the second-century CE compilation known as the Mishnah. The rabbinic debates recorded there explore the contours of the rule in Exodus. To ensure compliance, the house must be scoured for hametz with a candle, and all leavened products must be burned. To deal with any residual hametz, one must go through the legal ritual of disclaiming ownership, declaring that the hametz is now dust and therefore owned by no one. The debates in the Mishnah were then subject to further commentary and debate in the Talmud. The Talmud in turn has been continuously analyzed and systematized, a process that continues unabated to the present. When must the ritual search for hametz begin? What constitutes hametz? (For example, alcohol distilled from grain is included in the prohibition, although it’s not necessarily apparent that this would be the case.) And the questions continue with countless debates on each issue over the centuries. As I understand it, the well-established consensus among Orthodox exegetes is that an observant Jew is not allowed to own any hametz during Passover, nor can hametz be stored on the property of a Jew. Centuries ago, however, a problem arose for Jewish distillers. They owned large amounts of hametz, but government regulations made it difficult to simply destroy their stock for Passover. Thus was the workaround of the sale to a friendly gentile born, a workaround gradually expanded to all of those who wished to avoid burning valuable hametz every spring.

While seemingly baroque to a nonbeliever, the layering of these rules over the centuries illustrates a basic structure of the religious condition. To be a believer in the modern world is to live in a strange land. It is not that modernity is relentlessly hostile to faith. It is far easier for minority religious communities to live faithfully in contemporary liberal democracies than in any other kind of regime in human history. Our society, however, is not constructed around religious faith. As the Catholic philosopher Charles Taylor has pointed out, secularity isn’t so much a society from which faith has been extracted as much as one in which faith is optional. Within secularity, faith is contingent in a way that it wasn’t for previous generations both because of social pressure to religiously conform and because, in a real sense, a life without faith was unthinkable. Most people simply lacked the necessary conceptual machinery to consider a world without the God of their fathers. Secularity is the loss of that sense of necessity and the construction of a social world that aspires to be indifferent to religion. A believer, however, lives in a world where the reality of God continues to sit at the center of existence. The mismatch of the world of belief and the world of secularity constitutes the experience of faith in modernity.

Jewish law provides a marvelous example of this dynamic. Every legal system creates an imaginary world. The common law, for example, imagines a world divided by clear lines of property and planted thick with the obligations of tort and contract. The world in which we actually live never quite corresponds to the law’s imagined reality. Legal remedies strive mightily to bring the two into alignment, but good lawyers understand that this effort will always fail in the end. There will always be a gap between legal entitlement and what the legal system can actually deliver as a practical matter. For example, when a promisor breaches a contract, the law aims to give to the victim of breach a sum of money that will put the victim in as good a position as they would have been had the contract been performed. However, we know that there are some things for which money is never an adequate substitute, and courts will not award damages that cannot be fixed with certainty. The result is that the law cannot deliver in reality the imagined world of legal rules. Halakhah is a particularly extreme version of this dynamic. To study the Mishnah and the Talmud is to enter into an occasionally fantastical jurisprudential world. In this world, the Temple continues to stand in Jerusalem, and pious Jews bring their offerings to the priests to perform the sacrificial rituals. The land is dotted with sanctuary cities and other legal oddities. The Sanhedrin continues to sit, and the intricacies of its procedures mete out justice to Israel. All of these laws continue to be studied in exhaustive detail in modern yeshivot.

To call the world of Jewish law imaginary or fantastical is not, I hope, to insult or belittle it in any way. It is only to point out the way that Halakhah creates an entire world whose existence would not be guessed by a foreigner to the legal texts. However, after a lifetime of devotional Talmud study, it is a world that lawyers and hedge fund managers in suburban Philadelphia—members in good standing of America’s technocratic elite—can enter with ease. 

The life of Orthodox Judaism in part seems to be an effort to inhabit the world of Halakhah in the face of a social world that is very different from the one envisioned by the law. Part of how one does this is simply by studying, discussing, and debating the law. Indeed, there is a real sense in which much of Halakhah exists in order to be studied. For anyone who has even a passing familiarity with a functioning legal system, it is clear that much of Jewish law exists as a vehicle for jurisprudential discussion rather than as a system of operative rules. But the halakhic world isn’t inhabited purely through classroom debate. One also enters that world by following those rules of Jewish law that have been blessed by tradition and experience with concrete practical significance. Indeed, as I understand it, much of the work of response and commentary over the two millennia since the Mishnah was first written has been an effort to mediate and manage the tension of living simultaneously in both the world of Halakhah and the concrete world of any particular historical moment. In other words, as a living practice, Halakhah is a way of being a Jew in a world where being Jewish is optional. There is thus a sense in which Orthodox Judaism, far from being an insular or reactionary retreat from secularity, represents a kind of virtuoso performance of faith in a secular world. Indeed, Jews have been living in a secular world, in Taylor’s sense, for far longer than Christians. They are better at it. They have more experience.

I think that this kind of performance is on display in the effort to bargain around God’s law. There is a temptation for both believers and critics to imagine faithfulness in fundamentalist terms. There is some pristine original template for living the faithful life, and “real” religion consists of unbending adherence to its strictures. Such fundamentalism, however, is an illusion. The pristine template never actually existed; it is always a past constructed after the fact with the troublesome bits excised from memory. More importantly, fidelity is always dynamic, a matter of managing allegiance to an evolving tradition that is continually both resisting and accommodating the world. Even those who purport to be following a fundamentalist path are doing this. The question for a believer is thus always this: how does one adapt a tradition while accepting its authority and maintaining fidelity to it? 

One can think about this question by analogy to the process of legal change. The great 19th-century jurist and historian Henry Sumner Maine claimed that legal systems change in one of three ways: by legislation, by equity, or by fiction. Legislation is an idea familiar to laypersons, but equity and fiction in the legal context have specific meanings. Equity refers to a loose interpretation of a rule in order to achieve substantial justice. Fiction refers to the process of adapting legal rules by agreeing to pretend that their conditions have been met when in fact they have not. Good Victorian that he was, Maine thought in terms of progress, with fiction being the most primitive form of legal change and legislation representing the most advanced stage. Like most Victorian narratives of progress, this one doesn’t hold up terribly well to scrutiny, but Maine was onto something in his taxonomy. These are, in fact, the ways in which legal systems change in practice. Applied to divine law, however, the tool kit can become fraught.

Christians are generally fond of equity. They purport to look beyond the surface of rules to see their inner spirit, a spirit that can be applied with considerable flexibility. Hence, Christians read the Hebrew Bible through the lens of Paul’s hyper-abstraction in which the true “spirit” of the rule can be its negation. To take an extreme example, Paul argues in his epistles that the true spirit of circumcision consists in not being circumcised. This allows for flexibility, to be sure, but one can understand the skepticism of a Jewish reader as to whether Paul is in fact being true to the law revealed on Mount Sinai. Indeed, one of the vices of Christian spirituality is its tendency to abstract from tradition. All historical contingency falls away in the search for a transcendent and universal spirit. This creates a constant risk of self-negation. I suspect that this is especially true for the kind of Evangelical Protestantism that dominates much of American Christianity. Essentially Calvinist in its theology, American Evangelicalism often emphasizes spirit over law and the personal, subjective experience of being saved over the demands of liturgy or strict behavioral codes. This subjective focus can risk a drift toward a stance of “spiritual but not religious.” A certain numinous psychology can replace theology, and the language of therapy and self-help can eclipse the drama of sin and repentance. 

Mormonism presents a similar danger of self-negation, but it does so through religious legislation rather than equity—the first of Maine’s mechanisms for change. Latter-day Saints are marked as heretics from Christian orthodoxy in part by their belief in living prophets and continuing revelation. They affirm that the President of the Church—currently a man named Russell M. Nelson—is a “prophet, seer, and revelator.” In theory, he can receive revelations from God that would rank in equal authority with scripture, and at various points in their history, the Latter-day Saints have accepted additions to their canon from modern prophets. The idea of a hierarchy that can speak with God and speak for God opens up the possibility of religious legislation in a way that doesn’t exist, I suspect, for most Christians and Jews. To be sure, the hierarchy’s claim to such expansive authority risks abuse, and a god who replaces one revealed law with another revealed law may be puzzling. If one risks the paradox of an eternal God whose demands can change, however, the mechanics of religious accommodation, even religious revolution, become easier. 

The approach taken by my tradition has its own risks and pitfalls. On one hand, it can tend toward a dysfunctionally expansive fundamentalism in which every statement of the ecclesiastical hierarchy or institutional church becomes freighted with the authority of divine revelation. The result is that a belief that would seem to promise an unusually dynamic form of religion can, in practice, become rigidly conservative and sclerotic. Ironically, however, an opposite danger also exists. Continuing revelation locates the present between a past filled with revelations that have been superseded and a future filled with revelations that have yet to be given. This creates a dynamic that has a tendency to dissolve all religious claims in the present, particularly religious claims embedded with the concrete experience of the Latter-day Saints themselves. In effect, any revelation can in theory be superseded by a future revelation. Indeed, Latter-day Saint history provides examples of such superseding revelations, most spectacularly in the 1890 revelation ending polygamy, which superseded revelations from the 1830s and 1840s commanding its practice. In effect, all claims to authority in the present can be treated as provisional because they could be reversed by a yet-to-be-received revelation in the future. Thus what begins as an apparently extreme claim to authority can ironically turn on itself with the authority of the future claimed against the authority of the present by invoking the example of the past.

Armed with an appreciation for the dangers of equity and legislation, legal fiction looks more attractive. The rabbi to whom I conveyed the cash in exchange for the hametz insisted on the juridical reality of our transactions. The moment was embedded in a series of legal formalities designed to emphasize the complete transfer of the hametz to my ownership. I was assured that I had every right to take and consume the whiskey if I wished to do so. He made it clear, for example, that I had the right to enter the Jewish homes whose pantries I had leased and make off with my cheerios and booze.  The exchange was structured as both a cash sale and a bartered exchange (handkerchief for whiskey) to eliminate any difficulties under Jewish law as to my ownership. It turns out there is some doubt as to how to make a binding contract with a gentile, and the redundant contractual structures were a response to that ambiguity. 

I was also told that for the transactions to be valid as a matter of Halakhah, they must also be valid under the governing non-Jewish law. Accordingly, I signed a document that purported to be a sale of goods under Pennsylvania law. On this latter point, I will admit to some skepticism. Despite Chaim’s diligent lawyering, title to the hametz may have remained with the original owners under Pennsylvania law. Our mutual understanding of the deal looked much more like a lease or a secured loan than a sale. While we were careful not to say so, it was understood by all present that I would be selling the hametz back at the end of Passover. There is a long legal tradition of using dummy sales for transactional purposes other than the transfer of property. Perhaps I was really just renting the hametz for a short period or, alternatively, making a small cash loan with future advances secured by the hametz as collateral. Both are real possibilities under American commercial law, which tends to treat transactions according to their economic reality rather than according to the labels that parties give them. This is a potential problem, as with both a lease and a secured loan my Jewish friends would retain title to their hametz during Passover. 

To be sure, there are enough doctrinal complications in the contract Chaim drafted that it might survive the acid wash of the American law’s functionalism. Under the so-called parol evidence rule, courts have a limited ability to consider the context in which a contract was negotiated if the agreement was reduced to a written document. Thus, the messy reality of our transaction might elude an American court that would otherwise be tempted to treat our sale as a loan. Certainly, one could argue in good faith that the contract has enough validity under the secular law to be valid under Jewish law. Still, the entire transaction had more than a whiff of the legal fiction about it, a mass of formality designed to say that we are doing one thing while actually doing something very different.

In my mind, it is the double-mindedness of the legal fiction that is brilliant. Sitting in the suburban garden in Philadelphia, it was impossible not to feel the authority of Jewish law. Indeed, several members of the synagogue were there to witness the transaction with their children for precisely that reason. The forms and signatures literally had no other purpose than to comply with the demands laid down in Exodus. The dynamics of equity and legislation that tend to erase the very traditions from which they spring were wholly absent from the transaction. If anything, the very particularity of the legal formalities mitigated against the Christian danger of dissolving religion into spirituality. Legal formalities work precisely because they are strange and serve no purpose outside of the law. The purpose of a formality is to clearly differentiate to participants between actions that have a legal significance and those that do not. No one, for example, accidentally files a real estate deed in their local circuit court without understanding that they are performing a legal act. There is always a risk, however, of legal formalities becoming too familiar. As a legal formality becomes widely used outside of the legal context, it decays, losing the ability to differentiate between legally significant action and legally irrelevant action. In order to work, a formality must be weird. When the law at issue is divine, properly functioning legal formalities will be oddities that make it impossible to forget the claims of God. They are ritual acts that exist only to comply with divine law. At the same time, there is a sense in which the entire transaction of selling the hametz existed to avoid the harsh requirements of that law. The continuity of the suburban whiskey collections were maintained. The fiction manages the problems of fidelity and evolution, allowing the tradition to change without negating itself.

There are, of course, limits to bargaining around God’s commands. A law that collapses completely into fiction is terminally ill, but judiciously used legal fictions create a suppleness that allows one to bend without breaking, change without forgetting. This is precisely the challenge of secularity. A world in which religion is optional is one in which it can be forgotten. The threat to religious survival in secularity is less the polemics of the irreligious than the indifference of those who have forgotten how to be religious at all. 

As a gentile and a Christian, I think that there is much to learn from Jewish law when it comes to negotiating evolution required by modernity. The danger of Protestant or Mormon strategies of evolution is that they lend themselves to forgetting. Protestantism can exalt a subjective encounter with the spirit in a way that can all too easily dissolve into subjectivism. The idea of continuing revelation, on the other hand, tends to render every Latter-day Saint claim to authority contingent, gnawing away at its own foundations in a way that risks the collapse of the entire tradition. There are virtues to ritual, formality, and fiction that both traditions would be wise to find ways of cultivating. The very oddity of selling Jewish whiskey to a Latter-day Saint makes the forgetting of tradition impossible. It’s part of the genius for change without forgetting that has made the survival of Judaism possible in a world that for Jews has been secular since at least the destruction of the Second Temple in 70 CE. A healthy respect for and fascination with that success, along with my friendship with Chaim, led me to the garden in Pennsylvania and will, I hope, lead me to buy more Jewish whiskey in Passovers to come.

Next year in Philadelphia!

This essay is adapted from one originally published in Wayfare Magazine.

Nathan B. Oman is the Rollins Professor at William & Mary Law School, where he specializes in contract law and law & religion. He was educated at Harvard Law School and Brigham Young University. A life-long Latter-day Saint, he has also published extensively on Mormon theology and Mormon history.