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Bishul Akum for the Ill

Photo by rea einskisson from FreeImages

Question
#1: Cooked on Shabbos

If
a non-Jew cooks on Shabbos for someone who is ill, is the food he cooks
prohibited because of bishul akum? Obviously, the ill person is permitted
to eat the food, but there are several ramifications to this question.

Question
#2: Bishul akum equipment

If
a non-Jew cooked using my pots, do they require kashering because they
absorbed non-kosher food?

Background:

Chazal
instituted the law of bishul akum to discourage inappropriate social
interaction, which could lead to intermarriage, and also to guarantee that kashrus
not be compromised (Rashi, Avodah Zarah 35b s.v. Vehashelakos and38a s.v. Miderabbanan and Tosafos ad loc.).

There
are two major exceptions to the law of bishul akum – that is, situations
in which a non-Jew cooked food that one may eat, despite the prohibition
against bishul akum. One exception is food that is usually eaten raw,
such as an apple. Therefore, if a non-Jew baked apples and did not use anything
non-kosher while doing so, the apples are kosher.

Another
exception is something that would not be served on a king’s table. There are
many interpretations as to how to define this, but all poskim agree that
small fish and porridge are permitted when cooked by a non-Jew, as long as
nothing non-kosher was added – because these items are not served to a king.

This
article will discuss a possible third exception to bishul akum: Food
cooked by a non-Jew on Shabbos for someone who is ill.

Bishul
akum
for the ill

In
a different article, we learned that we may ask a non-Jew to do on Shabbos
whatever is required for the care of a person who is ill, even asking a non-Jew
to cook for the sick person. This is permitted even if no life-threatening
emergency exists, as long as the person is ill enough to be choleh kol gufo,
usually defined as someone ill enough to go to bed (Shulchan Aruch, Orach
Chayim
328:17), or whose discomfort is intense enough that he feels that
his entire body is affected (Rema ad locum).

In
the previous article, I did not discuss an important question: If food cooked
by a non-Jew is prohibited because of bishul akum, how can a Jewish
person eat what the non-Jew cooked? There are two obvious answers to this question:

1.
Food cooked by a non-Jew to take care of a sick person was excluded from the
prohibition of bishul akum.

2.
Because of his medical needs, a choleh kol gufo is exempt from the
prohibition of bishul akum.

In either
event, we have several follow-up questions:

Does
this heter apply only to what is cooked on Shabbos, when a Jew
may not cook for the sick person, or does it apply all the time? If this
dispensation applies only to what a non-Jew cooked on Shabbos,is
the ill person permitted to eat the leftovers after Shabbos, or does
that food become prohibited once a Jew can cook for him? And, assuming that the
sick person is permitted to eat the food after Shabbos, is it permitted
for a different Jew, who is perfectly healthy, to eat what the non-Jew cooked
on Shabbos?

Does
bishul akum affect pots?

Finally,
if the non-Jew used a Jew’s kosher pots to cook for the ill on Shabbos,
do the pots become non-kosher because they absorbed bishul akum? If so,
do the pots now need to be koshered before they may be used again? Or, since it
is permitted to ask the non-Jew to cook for the Jewish ill, do the pots not
need to be koshered afterward? Or, an even more lenient idea: perhaps bishul
akum
applies only to food, but does not prohibit pots at all?

This
entire list of questions is discussed and debated by the rishonim. Their
differing approaches provide a goldmine for the scholar attempting to analyze
critically the legal (halachic) status of bishul akum and to
comprehend clearly Chazal’s ruling permitting asking a non-Jew to cook
for the ill. As we will soon see, there are various ways to answer the
questions that we raised, and differences in halachic opinion affect
decisions made in kosher nursing homes and hospital to this very day.

Explaining
these issues also affords an opportunity to understand an important chapter in
Jewish history that is not as well known as it should be.

Debate
in Barcelona

Barcelona
is the second largest city in Spain and the capital of Catalonia, the
northeastern region of the country. Today, there is a tiny Jewish presence in
the city, but, in the times of the rishonim, Barcelona was a major
headquarters of Torah. At different times, many gedolei Yisroel lived in
the city, including the Raavad, the Ramban, Rav Yehudah Bartzeloni, theRashba,
the Rosh (who had fled from Germany, which had become very dangerous for rabbonim),
the Rosh’s distinguished sons (including his son Yaakov, who later 
authored the Tur), Rav Aharon Halevi (known as the Re’ah), the Ohr
Hashem
(Rav Chasdai Kreskas), the Ritva, and the Nimukei Yosef, to list
some of the better-known gedolim who walked the streets of this city.

In
the thirteenth century, three major halachic works appeared in Barcelona
in quick succession. These works clarified the halachos observed in a frum
house. The first, written by theRashba, was aptly called Toras
Habayis
(literally, the laws of the house), whichdiscussed,
in very organized and detailed fashion, the laws of kashrus, mikveh,
netilas yadayim
and other household laws. It was actually two different
works. One, a brief edition called the Toras Habayis Hakatzar,
offered instructions for household owners to manage their homes in accordance
with halacha. The other, Toras Habayis He’aruch,is
an extensive and thorough explanation of the halachic background to the
topics, quoting the original sources in the Mishnah, Gemara, and
early authorities. It discusses and explains the arguments, sources and
opinions cited by the various great, early poskim on the subject, and
then the Rashba reaches his conclusion.

Shortly
after the Toras Habayis saw the light of day, another work, called Bedek
Habayis
(literally, inspections [or repairs] of the house)
appeared, written by Rav Aharon Halevi ( the Re’ah) exclusively to disagree
with the conclusions of the Toras Habayis. The Bedek Habayis went
to great length to demonstrate where he felt the Toras Habayis’s
analysis and comparisons were incorrect.

Eventually,
a third work was produced anonymously, called the Mishmeres Habayis (protecting
the house
), the purpose of which was to explain that the original Toras
Habayis’s
conclusions had been correct and that the Bedek Habayis
was incorrect.

These
works were all produced before the invention of the printing press, which means
that they were circulated via copying them by hand.

The
mystery is discovered

At
first, the members of the community were baffled trying to identify the author
of the Mishmeres Habayis. This should indicate the high level of
Talmudic scholarship that existed then in Barcelona – apparently, there were
enough Torah scholars in Barcelona capable of writing such an incredibly
scholarly work that it could be published anonymously, without the identity of
its author being immediately obvious.

Eventually,
it was discovered that the author of the Mishmeres Habayis was none
other than theRashba himself.

At
this point, let us return to our topic, and to our original opening questions:

1.
If a non-Jew cooks on Shabbos for someone who is ill, is the food he
cooks prohibited because of bishul akum?

2.
If a non-Jew cooked using my pots, do they require kashering because
they absorbed non-kosher food?

Opinion
of the Re’ah

Although
the Toras Habayis does not discuss these topics, both the Bedek
Habayis
and the Mishmeres Habayis do. The Bedek Habayis (Bayis
3 Shaar 7) concludes that:

1.
Food cooked by a non-Jew to take care of the needs of someone ill does not
carry the prohibition of bishul akum.

2. Bishul
akum
does not affect equipment.

The Bedek
Habayis
permits the first case for the following reason: At the time this
food was cooked, it was permitted to be eaten. A person who is well may not eat
it because of the laws of Shabbos – we are concerned that someone may
ask the non-Jew to do something on Shabbos that is not permitted for a
Jew to do – but not because of the prohibition of bishul akum. Since the
cooking was performed not for social reasons but in order to have fresh food for
ill people, no prohibition of bishul akum was incurred at the time that
the food was cooked. Therefore, it cannot become prohibited as bishul akum
after Shabbos is over. The Re’ah concludes that the food cooked by a
non-Jew for an ill Jewish person on Shabbos is permitted after Shabbos,
even for a perfectly healthy person.

Furthermore,
reasons the Bedek Habayis, should a non-Jew cook for himself in a kosher
pot, the food is prohibited because of bishul akum but the pot itself
remains kosher. The reason is that the use of this pot does not create any
favorable social interaction between Jews and non-Jews that we must avoid. In
other words, the Bedek Habayis contends that since the prohibition of bishul
akum
was limited to situations that encourage social interaction, the taste
of bishul akum that is absorbed into pots was never prohibited. Enjoying
the residual taste remaining in a pot does not encourage unwanted social
interaction.

The Bedek
Habayis
then quotes Rav Yitzchak beRabbi Manoach, who rules that what a
non-Jewish slave cooks as part of the responsibility to the household that owns
him or her is not prohibited as bishul akum, since there is no increased
social interaction when someone cooks as an aspect of being a slave. The point
of the Bedek Habayis is that Rav Yitzchak beRabbi Manoach contends that
eating what a gentile cooked is not included in the prohibition of bishul
akum
when the circumstances do not encourage social interaction – and
certainly the residual absorption in the pots is permitted.

The Bedek
Habayis
then quotes from “mori rabbeinu Moshe, z”l,” the Ramban (who
had headed a yeshivah in Barcelona and was the Re’ah’s primary rebbe),
that, lechatchilah, cooking in a Jewish house should not be performed by
a non-Jewish slave – but if it was, the food is permitted bedi’eved.

TheRashba’s
response

TheRashba,
in his Mishmeres Habayis, disagrees with every point made by the Re’ah
in the Bedek Habayis. He compares a non-Jew cooking food for an ill
person on Shabbos to the situation of a person who is deathly ill and
there is no fresh meat to eat. The halacha in the latter situation is
that, if no shocheit is available, you are required to kill an animal,
rendering its meat neveilah, and cook it for the sick person. As soon as
a shocheit becomes available, you are no longer permitted to feed the
sick person non-kosher. Of course, the pot in which the neveilah was
cooked is not kosher and must be koshered. Similarly, Mishmeres Habayis
contends that although it is permitted to have a non-Jew cook for someone ill,
the food is permitted to be eaten only by the ill and only until there is
enough time after Shabbos to cook fresh food. Once that time arrives,
all the food that was cooked by the non-Jew becomes prohibited as bishul
akum,
even for the sick person, and certainly it was never permitted for
someone well to eat. In addition, the previously kosher pot used by the non-Jew
to cook for the ill on Shabbos is prohibited because of the bishul
akum
absorbed in it, and the pot must be koshered before it can be used
again.

The Mishmeres
Habayis
explains the basis for this law as the general rule, “kol
detikun rabbanan ke’ein de’oraysa tikun
,”whatever the Sages
established they did in a system similar to the rules of the Torah” (Pesachim
30b, 39b, et al.). Therefore, when Chazal created the
prohibition of bishul akum, they gave the prohibited product all the
rules that apply to items prohibited min haTorah. Thus, we see that
Barcelona was the scene of a major halachic controversy that has
ramifications to this very day.

How do we
rule?

Well, who is
“we”? The Ran (Shu”t Haran 5:11-12), the primary Spanish halachic
authority in the generation following theRashba and Re’ah, discusses
the second question, whether bishul akum prohibits the equipment used to
cook it. He opines that logically the prohibition of bishul akum should
apply only to the food prepared and not to the equipment in which it was
produced, since concerns about social interaction apply only to the food, and
not to the equipment. However, that since there are poskim who disagreed
with the Re’ah, the Ran concludes that it is preferable to have the equipment
koshered, and, if this food was cooked in an earthenware pot (which cannot be kashered),
the earthenware pot should be broken (see Pesachim 30b; Avodah Zarah
33b-34a).

Two
contemporaries of the Ran also weigh in on the question of whether we require kashering
of equipment in which bishul akum occurred. The Tur (end of Yoreh
Deah
113) quotes that theRashba required kashering equipment
that cooked bishul akum, even if it was a case of non-Jewish servants
who cooked in a Jew’s house. He notes that theRashba holds that, to
avoid prohibiting the pots, when non-Jewish workers cook for themselves in a
Jewish house, someone Jewish must participate in the cooking, in a way that
avoids the prohibition of bishul akum.

The Tur himself
does not conclude this way. He quotes that his father, the Rosh, a contemporary
of theRashba, contends that Chazal prohibited only the food of bishul
akum
, but did not extend the prohibition to flavor absorbed into pots and
other equipment. In other words, the Rosh accepts the approach of the Re’ah
that bishul akum is different from other proscriptions and is prohibited
only to the extent that it would cause unwanted social interactions.

The other
contemporary of the Ran who discusses this issue is Rabbeinu Yerucham, a
disciple of the Rosh, who writes that most authorities agreed with the Rosh
that bishul akum does not create a prohibition on the equipment used to
cook it. However, the Beis Yosef, after quoting Rabbeinu Yerucham,
disagrees with his conclusion that most authorities accept the Rosh’s opinion.
The Beis Yosef writes that most authorities who lived after theera
of the Rashba, Re’ah and Rosh accept the opinion of theRashba as the
conclusive halacha. In Shulchan Aruch,he mentions both
approaches, but concludes that the main approach is that equipment used for bishul
akum
does require kashering.

Three
times lucky

Above, I
quoted the Ran who states that if bishul akum prohibits the vessels, if
an earthenware pot was used, the pot must be broken. However, theRashba
himself did not rule this way. This is based on a passage of Talmud
Yerushalmi
(Terumos 11:4) that rules that a lenience applies when a
prohibition is rabbinic in origin, which is the case of bishul akum. In
these circumstances, Chazal permitted kashering earthenware by
boiling the vessel three times(Rashba, quoted by Tur Yoreh Deah 123).
This ruling is accepted by the Shulchan Aruch (Yoreh Deah 113:16).

What
about for the ill?

Above, we
mentioned that theRashba and Re’ah also disagreed about whether food
cooked by a non-Jew on Shabbos for a Jewish person who is ill is
prohibited as bishul akum. How do we rule on this question? Again, it
depends on whom you ask: The Rema and the Shach conclude that the
food is permitted after Shabbos, even for a healthy person, whereas the Taz,
Mishnah Berurah
(328:63) and others rule that it is prohibited even for the
ill person once food cooked by a Jew becomes available.

Conclusion

According to
the Rambam, the reason Chazal prohibited asking a non-Jew to do
work on Shabbos is in order not to diminish sensitivity to doing melacha
ourselves. Refraining from having even a non-Jew work is testimony to our deep
conviction that Hashem created the world.

We have just
learned an exception to this rule: When someone is ill, we are permitted to ask
a non-Jew to cook for him. This will not diminish sensitivity to doing melacha
ourselves, but will increase our sensitivity to the needs of the ill and the
mitzvah of bikur cholim, ensuring that we attend to their needs as best
as we can.