Passing the Taste Test

Question #1: Gentile Goulash

Can a non-Jew determine if the cholent or the goulash is kosher?

Question #2: Expert Witness

Does halacha recognize the concept of an “expert witness?”

Question #3: It Tastes Bad!

Does whether something tastes good or bad affect halacha?

Foreword:

This article will discuss what happens if a small amount of something non-kosher falls into kosher food. Because of the limitations inherent in writing articles, at times I will need to omit significant details. As a result, please do not use this as a source for any halachic ruling. Refer a personal question to a rav.

When non-kosher and kosher foods become mixed together, it is forbidden to eat the mixture. However, when the amount of the non-kosher item is so small that it cannot be tasted, the mixture is usually permitted, since the offending substance is considered nullified, bateil.

Note that I wrote “usually,” because there are exceptions to this rule, most of which will wait patiently for future articles. One instance in which the offending ingredient is not bateil is when someone deliberately attempted to nullify a forbidden product or mixture. In this instance, the resultant mixture is prohibited because of the principle of ein mevatlin issur lechatchila (Beitzah 4b), one may not deliberately nullify a prohibited substance.

Ta’am ke’ikur

Why is the ability to taste a prohibited substance the criterion to determine whether the mixture is permitted? This is because of a halachic principle called ta’am ke’ikur, the taste is like the actual substance.

Nosein ta’am lifgam

Even when the non-kosher ingredient can be tasted, at times the mixture is still permitted. This is when the non-kosher substance does not add positive taste into the food, but adds an unpleasant taste, even if it is only mildly unpleasant. The Gemara (Avodah Zarah 67b) quotes a dispute between tanna’im whether nosein ta’am lifgam, literally, that which provides a bad taste, is prohibited or permitted. According to the opinion that nosein ta’am lifgam is permitted, should a non-kosher substance provide an unpleasant taste when added to food, the food remains kosher. The halacha follows the opinion that nosein ta’am lifgam is permitted.

We can then reach this conclusion regarding a mixture of non-kosher and kosher food:

(1) When the non-kosher food is the minority of the mixture, and

(2) the non-kosher food can no longer be identified, and

(3) the non-kosher food does not improve the taste,

then the mixture may be eaten. And, as mentioned above, this is true only when the bitul, the nullifying, was not performed intentionally.

24 hours

The halachic assumption is that residual taste that is present in a vessel or utensil from a previous cooking usually spoils after 24 hours have elapsed. This means that the flavor imparted from such equipment is no longer beneficial and therefore food cooked in it is permitted. In addition, because of a more complicated halachic principle and reasoning, even when we do not know for certain whether equipment was used in the previous 24 hours, we are permitted to assume that the product cooked in non-kosher equipment is kosher (see Tosafos, Avodah Zarah 35b s.v. Miklal). On this basis, although it is prohibited to use a non-kosher pot, food cooked in it with kosher ingredients usually remains kosher.

How do we know?

When a small amount of issur (prohibited food) got mixed with heter (permitted food), we need to know whether the issur is bateil and the food is therefore permitted, or whether it is not bateil and the food is prohibited. In general, there are two methods to ascertain that the food is bateil.

The taste test

A non-Jew tastes the mixture to ascertain whether he can detect taste of the non-kosher food (or the tiny percentage of milk in meat, or vice versa). He may also tell us that, although he can detect the non-kosher substance, what it adds to the mixture is distasteful. In this instance, the food is permitted, as explained above.

Must the non-Jew swallow the food that he is tasting? There is a dispute among later halachic authorities whether a taste test requires that the taster actually swallow the food, or whether it is sufficient that he chew the food thoroughly. The Pri Megadim (Mishbetzos Zahav, Yoreh Deah 98:2) rules that when tasting to check for an issur, the person must chew the food and swallow some of it, whereas the Yad Yehudah (98:2) is satisfied that chewing well is enough and even that is necessary only if it is a solid food. If it is a liquid, even tasting the food in his mouth and spitting it out afterward suffices.

Most poskim contend that the non-Jew should not know that his answer is deciding whether a product is kosher or not. Why? Some explain that the non-Jew may want to help the Jew and tell him that he cannot taste any prohibited substance, even when he is uncertain (Badei Hashulchan 98:8).

Another possibility is that someone who does not understand that it is a violation of what Hashem wants may bias what he says because of other motivations. Thus, we cannot rely on information provided unless (a) the person is halachically concerned about the prohibition involved, or (b) there is a compelling reason why the person would tell the truth, such as an expert chef who would not want to jeopardize his professional reputation.

Ratio

If we know how much of a non-kosher substance fell in, we can try to determine (by measuring) whether the percentage is large enough to be discerned. That is, if what fell in is less than one sixtieth of the permitted substance, the mixture is permitted.

Some rishonim require that, when possible, we must use both methods. In other words, the prohibited substance must be one part in sixty or less, and even then, if a non-Jew is available, we should have him taste the mixture to determine that the prohibited food cannot be tasted (Rashi, Chullin 98a s.v. Beshishim). Others rule that it is better to have a non-Jew taste the food and tell us that he cannot taste the non-kosher substance. If no non-Jew is available, we may permit the food if we know that the kosher food is at least sixty times the volume of the non-kosher (Rambam).

The Shulchan Aruch concludes, like the Rambam, that we use one part in sixty as a determinant only when there is no non-Jew present to taste the meat. In such a case, we calculate if the heter is sixty times the issur, in which case it is mutar.

There are instances in which we cannot use the taste test and will only be able to use the ratio method. For example, what do we do if a small amount of non-kosher meat fell into a cholent or goulash in which there is more kosher meat than the non-kosher that fell in? What are we going to ask the non-Jew to taste? Of course, he is going to taste meat, because there is plenty of kosher meat in the mixture, and there is no way to know by taste whether the non-kosher meat can be tasted. In such situations, we will be forced to use the ratio method to determine whether the food is kosher (see Yorah Deah 98:2).

Chaticha na’asah neveilah

Here is another instance in which we will not be able to rely on taste to rule that something is permitted. A small amount of meat fell into a pot containing dairy. Afterward, another ingredient, that is neither meat nor dairy, was added to the pot. The problem in this instance is that, when the meat fell into the dairy, if the pot did not contain enough to make the meat bateil, all the milk and meat in that pot became prohibited as basar bechalav. Adding more to the pot will not help, nor will tasting the food afterward to discern that the meat cannot be tasted, since the dairy already became prohibited min haTorah. To permit the food (and the pot) we will need to determine how much was in the pot when the meat fell in originally; tasting it now will not help make that determination.

This concept is called chaticha na’asah neveilah, which means that once something absorbed a prohibited substance, we must treat the entirety as prohibited. This concept has ramifications for many other halachos, but space considerations will require us to leave the topic for a future article.

Why sixty to one?

Why is a prohibited substance usually bateil when there is sixty times its volume of heter in the mixture? The reason is because Chazal calculated that most prohibited foods will not be tasted when they are in the food at this small percentage. However, this calculation is not absolute. There are several prohibitions in which Chazal required a larger percentage, because they wanted us to be more stringent regarding these, more serious issurim. There is also the instance of a food that is avida leta’ama, meaning that it is a spice or other flavoring agent. Since these foods can be tasted even when in very tiny amounts, they remain prohibited even when there ar only very small amounts in the food.

Returning to the taste test

Exactly whose opinion do we need that the non-kosher cannot be tasted? Can we use any non-Jew to perform the taste test, or does it require an expert chef? Some contend that an expert chef is needed because we do not assume that the average person is so discerning (see Rashba). Others require an expert chef for a different reason: since he has his well-earned professional reputation at stake, he can be trusted to tell us the truth and not what he thinks we want to hear.

The Rambam and those who follow his approach do not require that the “taste tester” be an expert. They contend that we may rely on any non-Jew who tastes the food and tells us that he cannot discern the non-kosher ingredient in themixture. Among those who accept any non-Jewish taster, some contend that we can rely on him only when he does not know why we are asking him, whereas others are not concerned about this.

In general, halacha accepts that only someone affected by a situation pays attention to its details. For this reason, someone who witnessed something and did not realize the significance of what he was seeing cannot be relied upon for his opinion as to what happened. Thus, in general, it would seem that we should not rely on a non-Jew telling us whether he discerned the non-kosher product or not, if he is unaware of the reason we are asking.

There are some possible exceptions to this rule. One is when the individual has a professional reputation to protect. Someone in this situation is very concerned not to ruin his well-earned reputation, and will always be careful to render a correct answer to the best of his ability. Therefore, we accept his opinion to be true.

Others explain that we may ask a non-Jew whether he tastes the non-kosher when he knows that we are immediately going to see if he is right. Although it may not be his uppermost concern to provide us with accurate information, knowing that we will check immediately on his reliability will cause him to be more concerned to provide accurate information (Shach, Yorah Deah 98:2; Pri Chadash; based on Shu”t Harivash #433).

This approach is recommended by the Gemara and this is the approach followed by Sefardim as ruled in the Shulchan Aruch (Yorah Deah 98:1), who accepts any non-Jew’s opinion if he does not know that we are relying on him.

However, the custom developed among Ashkenazim not to rely on a non-Jew tasting the food. Why would Ashkenazim ignore the approach recommended by the Gemara? Did we decide to become frummer than the authors of the Gemara?

G-d forbid! There is much discussion among the later authorities why Ashkenazim follow this approach. One reason suggested is that, if we study the various explanations provided by the rishonim, we will realize that they are mutually exclusive. In other words, some hold that we can accept the non-Jew’s opinion only when he knows why we want the information, whereas others assume the exact opposite – that he is trusted only when he has no idea why we want the information. Since it is impossible to accommodate all the opinions, the custom is to be stringent and not use this approach. (This answer is provided by Rabbi Akiva Eiger in his glosses to Yorah Deah 98:1, but the Gra and Rav Shelomoh of Vilna, in their respective glosses, disagree.)

Avida leta’ama

Above, we noted that a non-kosher spice or seasoning is not usually bateil because it can still be tasted in the finished product. Thus, the ratio of sixty parts heter to one part issur will not permit this product. However, can you have a non-Jew try it to see if he can taste the issur? Certainly according to Sefardic practice, this is permitted. But can an Ashkenazi use a non-Jew to taste whether the avida leta’ama ingredient can still be tasted?

The Shach (Yorah Deah 98:29), an Ashkenazi who follows the Rema, rules that, when the question is whether you can taste an avida leta’ama, you may rely on a non-Jew. This ruling is accepted by Rav Shelomoh Eiger (in his notes on Rema, Yorah Deah 98:1); but there are those who disagree.

A Jewish taster

The Rema writes that “nowadays we do not rely on the tasting of a non-Jew” (Yorah Deah 98:1). This implies that if a Jew tastes a mixture and tells you that the “prohibited substance” cannot be discerned, you may rely on him (Shach). Most, but not all, authorities accept that we can rely on a Jewish taster (cf. Levush, who disagrees and concludes that Ashkenazim never rely on tasting).

Obviously, in the cases that we have been discussing, no halachically abiding Jew could taste the food, and a Jew who is not halachically abiding cannot be relied upon. Thus, when does this ruling apply?

There are numerous cases in which it might be relevant to have a Jewish person taste the mixture:

(1) If some terumah of one type of fruit or vegetable falls into a different species of non-terumah that is cooking, we may have a kohen taste it, since he is permitted to eat terumah. If he tells us that he cannot taste the species that is terumah, then a non-kohen may eat it. The same halacha is relevant to a case where the dough separated as challah became mixed into a product. (These cases are assuming that we are in a time and place when kohanim eat terumah and challah.)

(2) An individual made an oath or a vow prohibiting himself from eating a certain food. Subsequently, that food gets mixed into other food. Another Jew, who is not included in the oath or vow, may taste the mixture and ascertain that the prohibited food is not discernible.

(3) An onion was cut with a meat knife, and someone tasted the onion and contends that it has no fleishig taste. May someone now eat this onion with dairy? This application can be applied to any similar case where we want to verify if pareve food has a meat or dairy taste.

(4) A non-kosher substance fell into a kosher food and we do not know whether the kosher substance was sixty times the non-kosher. A non-Jew, who does not know why we are asking his opinion, tastes the food and tells us that the non-kosher substance cannot be discerned. At this point, a fully halachically observant Sefardi who heard the non-Jew’s ruling is permitted to rely on his pesak and taste the food. Upon tasting the food, the Sefardi notifies an Ashkenazi that indeed there is no taste of non-kosher in the food. According to the ruling of the Rema and the Shach, the Ashkenazi may now eat the food, relying on the tasting of a Jew.

All four of these cases are seemingly dependent on the dispute quoted above between the Levush and the Shach whether we rely on the tasting done by a Jew.

Conclusion

A well-known, non-Jewish criticism of Judaism is: “Does G-d care more about what goes into our mouths than He does about what comes out?” The criticism is, of course, both mistaken and conceited. Our development as avdei Hashem involves both what goes in and what comes out, and the height of vanity is to decide which is “more” important in His eyes. Being careful about what we eat and about what we say are vital steps in our growth as human beings.




The Confused Image of Glass

In common years, Parshas Tzav falls on Shabbos Hagadol, and the piyutim (and perhaps the drosha) of the day teach about kashering for Pesach. Although this year is a leap year and Shabbos Hagadol is a month from now…

Question #1: Tevilas keilim

Why is glass the only material other than metal for which Chazal required immersion?

Question #2: Non-Kosher

May I use a non-kosher drinking glass for a hot cup of tea?

Question #3: Chicken soup and milk

After serving chicken soup in a glass, may I pour hot milk into the same glass?

Question #4: Kashering for Pesach

How do I kasher my chometz-dik glasses for Pesach?

Introduction

Moshe Rabbeinu hid the Egyptian that he killed in the sand; for this reason, striking the earth to bring the makeh of kinnim needed to be performed by Aharon (Rashi, Shemos 8:12). Since the world has huge deposits of sand, mankind attempted to use it for useful items, eventually discovering that, by heating sand to a very high temperature, it can be made into glassware, which is the topic of this article.

There is no mention of glassware in the Torah, although there is one reference to glassware in Tanach, in the book of Iyov (28:17). Iyov declares, regarding wisdom, lo ya’archena zahav uzechuchis, “Gold and glass do not equal it,” meaning that the value of gold or glass comes nowhere near that of wisdom. From this passage we see that, at the time of Tanach, glass was considered an extremely expensive material. As we will see shortly, that glass became less costly with time has halachic ramifications.

Before discussing the halachos of glass, let us note some of its unique chemical and physical properties that affect its halachic status.

Recyclable

Glassware has many uses and can be very beautiful, but at the same time it is fragile and breakable. However, as opposed to pottery, which, when broken, is irreparable and virtually useless, broken glassware can be easily recycled. Glass can be melted down and reused over and over. In this respect, glass shares an important characteristic with metals, which are also recyclable by being melted down. For this reason, Chazal sometimes gave glassware the halachos of metals. For example, germane to the mitzvah of tevilas keilim, the Gemara rules that glass vessels must be toiveled before use, as indicated in the Gemara (Avodah Zarah 75b): Rav Ashi said, Glass utensils, since when broken they can be repaired, are like metal utensils.

Rav Ashi lived at the very end of the period of the Gemara. A much earlier statement of Chazal, in Avos deRabbi Nosson (Chapter 41), provides the following terse statement:

“Three things were said regarding glassware:

(1) It does not absorb; it does not impart.

(2) It shows whatever is inside.

(3) If you place it in a hot place, it becomes hot. If you place it in a cold place, it becomes cold.”

Avos deRabbi Nosson is not intended to be a scientific work, nor is it a handbook for manufacturers. It is similar to Pirkei Avos, although it contains much more aggaddic material, and so it would probably be best classified as an early midrash, similar to Midrash Tanchuma or Pirkei deRabbi Eliezer, or to the much later midrashic collections like Midrash Rabbah or Yalkut Shimoni. So, why is it concerned with categorizing the qualities of glassware?

The answer to this question is that, although Avos deRabbi Nosson is not usually treated as a halachic midrash, in this instance, that is exactly what it is — providing halachic categorization with which to define the unique qualities of glass. By so doing, it provides a background with which to explain the halachos of glassware.

Does not absorb

Laboratory experiments use glass equipment because it does not absorb, nor does it impart or leach into what is heated or stored inside it. Therefore, it should not affect whatever chemical reaction or research for which it is being used. We will soon discuss the kashrus ramifications of this quality of glass, about which the Avos deRabbi Nosson was presumably concerned.

May be clear or opaque

We are accustomed to most glass being clear, but this is really a function of what other chemicals are in the sand from which the glass is made when it is fired. Even glass that is colored is usually transparent, which is one of the common qualities of glass and is highly uncommon in other materials.

This observation about glassware has much halachic ramification, although this distinction does not affect any “kitchen kashrus” issues. It does, however, have ramifications for the laws of tumah and taharah, which we will not disuss in this article because of space considerations.

It is a conductor

The third statement of the Avos deRabbi Nosson is that if you place glass in a hot place, it becomes hot, and if you place it in a cold place, it becomes cold. In other words, glass is a conductor and not a good insulator. The best insulator used today in the kitchen and in carryout shops is Styrofoam. But on the relative scale of things, glass is closer to metal in its ability to conduct heat.

Having used the Avos deRabbi Nosson as a means of explaining the unique properties of glass, we can now discuss the halachic questions that I raised at the beginning of our article.

Tevilas keilim

Our first question was: Why is glass the only material other than metal for which Chazal required immersion?

Allow me to explain. The laws of tumah and taharah germane to tools, equipment and vessels include many different types of materials. Items manufactured from metal, wood, cloth, horn, glass, and plants are all susceptible to tumah, as is food, pottery and boneware. Nonetheless, germane to the mitzvah of immersing utensils prior to food use, the requirement min haTorah  applies only to metal utensils, and not to utensils, pots or pans made of pottery, wood, cloth, bone, horn or any other materials. Therefore, there is no requirement to toivel a wooden spoon, a ceramic dish, cheesecloth used for food (after all, it is called cheesecloth, and not laundry cloth, for a good reason), or flatware chiseled out of horn or bone. However, why is there a requirement to toivel glass bowls and cups?

Based on the Gemara that we quoted above, we can answer this question: Broken glass utensils can be recycled for new manufacture, just as you can recycle broken metal utensils. Since glass shares this quality with metal, Chazal instituted that glass be treated like metalware, germane to the mitzvah of toiveling food-preparatory vessels prior to using them.

Glass and kashrus

At this point, I am going to combine the next three of our opening questions into one discussion:

May I use a non-kosher drinking glass for a hot cup of tea?

After serving chicken soup in a glass, may I pour hot milk into the same glass?

How do I kasher my chometz-dik glasses for Pesach?

There is a tremendous diversity of opinion among the rishonim concerning the kashrus status of glassware. Do we assume, halachically, as does the chemist, that glass never imparts anything that it absorbs? If this is true, it should never require kashering and it may be used interchangeably from treif to kosher, from milchig to fleishig, and from chometz to Pesach without any kashering procedure at all. On the other hand, we have no Talmudic source that expressly permits using any utensil in any of these ways without a kashering procedure in between.

The different opinions that we find among the rishonim on this issue can be categorized loosely as three basic approaches:

1. No need to kasher

Several authorities contend that the nature of glass is that it does not absorb or impart any taste and that, therefore, it does not require any kashering at all (Rabbeinu Tam, quoted by Tosafos, Avodah Zarah 33b s.v. Kunya and Kesubos 107b s.v. Hani,and Rosh, Pesachim 2:8; Rashba, both in Shu”t Harashba 1:233 and in Toras Habayis 5:6; Ran, Pesachim 9a [in the Rif’s pages]; Ravyah,quoted by Mordechai, Pesachim #574). Many of these authorities quote the above mentioned Avos deRabbi Nosson as a proof for this ruling.

2. Does not help to kasher

Halacha treats glassware like pottery. Once pottery was used to cook chometz or non-kosher food, the flavor absorbed into its walls can never be fully removed. Rather than becoming completely extracted when one attempts to kasher pottery, some of the absorbed taste remains and leaches out afterwards with each use, potentially spreading prohibited flavor into all subsequent cooking (Tosafos, Chullin 8a s.v. Shelivna). In other words, once pottery becomes treif, it may be impossible to make kosher again. (There are some circumstances in which it can be kashered, but these unusual situations are beyond the scope of this article.)

Some early authorities contend that, since glassware is made from sand, it should be treated like sand, or, more accurately, like pottery and cannot be kashered (Mordechai, Pesachim #574, and Avodah Zarah #826; Terumas Hadeshen 1:132, 2:151). Most of these authorities quote the source for this approach as Rabbeinu Yechiel of Paris, one of the baalei Tosafos.

3. Glass is like metal

Some rishonim rule that just as Chazal gave glassware the same halachic status as metal regarding the mitzvah of tevilas keilim, it has the same halacha regarding the laws of kashrus (Bedek Habayis of the Re’ah, 5:6; Shibbolei Haleket #207).

However, once we rule that glassware is like metal, in practice, it might become stricter than metal. This is because of a rule that, when a particular method of kashering may break an appliance, Chazal prohibited using that method, out of concern that someone will be afraid to kasher it properly (Pesachim 30b). Thus, although metal can be kashered by boiling the appliance (hag’alah), it may not be allowed to kasher glassware this way, because the owner may be afraid that it will crack (Mor Uketzi’ah end of 451). On the other hand, other authorities permit kashering glassware by hag’alah for Pesach and are not concerned that someone might be afraid to kasher it properly (Shu”t Maharsham 1:53 at end).

A major halachic ramification results from the above. Glassware that is meant to be used in the oven, such as Pyrex, should, therefore, be kasherable for Pesach, since presumably the owner will not be afraid to kasher it properly. Although this is not common custom, there are prominent halachic authorities who permit this (She’arim Hametzuyanim Bahalacha 116:11).

Difference between treif and Pesach

There is a dispute among rishonim whether glass that was used for hot chometz may be used for Pesach. Some authorities are more stringent regarding using chometz-dik glassware for Pesach than using it interchangeably between milchig and fleishig. For example, the Hagahos Semaq, a late baal Tosafos, writes: “Universal custom is not to use for Pesach any used pottery vessels (even those coated with metal or glass). Rabbeinu Yechiel prohibited using even used drinking glasses, since the Gemara compares glass to pottery, and sometimes people place bread into drinking glasses, in which instance they absorb the way pottery does.” The way this statement is quoted, it implies that Rabbeinu Yechiel did not permit any form of glassware kashering for Pesach (Hagahos Semaq 222:5).

Similarly, the Issur Vaheter (58:50), an early Ashkenazic posek, quotes the Semaq as ruling that it is prohibited to kasher glass for Pesach and it should be treated lechumra as questionable whether it is considered metal or pottery.

How do we rule?

Among earlier halachic authorities, it appears that there was a big difference between Sefardic and Ashkenazic practice regarding the use of glassware. The Beis Yosef cites most of the halachic sources we quoted above, and concludes, both in Beis Yosef and in Shulchan Aruch, that glassware does not absorb and therefore may be used for Pesach without any kashering procedure at all (Shulchan Aruch, Orach Chayim 451:26). Following his approach, it would appear that someone could purchase or rent used glass equipment from a treif source, without any need to kasher it.

On the other hand, early Ashkenazic custom appears to have been closer to the approach of Rabbeinu Yechiel cited above. For example, the Rema rules that chometz-dik glassware should not be used for Pesach and that it is not kasherable for Pesach use, even when it was used only for serving cold beverages and not used ever to store them.

Although most Ashkenazic authorities subsequent to the Rema follow his approach, some rule that Ashkenazim could follow the Sefardic practice and use glassware for Pesach without kashering it first (Mor Uketzi’ah,end of 451).

Other authorities raise a different question regarding the Rema’s ruling that glassware may not be used for Pesach. The Rema prohibits using glassware for cold drinks on Pesach, even when the glass is used only for cold beverages the entire year. The reason the Rema is stringent is because of concern that chometz may have fallen into the glass and became kavush, which means that chometz flavor absorbed into the glass.

The difficulty with this ruling is that the Rema himself rules that a vessel, even made of pottery, that stored chometz for a lengthy period of time may be used on Pesach, even when this long-term storage would create kavush (Orach Chayim 451:21; see Mishnah Berurah 451:122). How could the Rema treat glassware more stringently than pottery? The only reason to be stringent regarding glassware is according to the minority opinion that treats glassware as pottery!

This question is raised by the commentary Beis Meir (Orach Chayim 451:26), who answers that the Ashkenazic minhag to be stringent not to kasher glass was only regarding drinking glasses, since buying new ones for Pesach is not a major expense. However, the Rema ruled leniently regarding large storage vessels that are expensive, even when they are made from pottery, and certainly when they were manufactured from glass. In other words, even the Rema holds that glassware is inherently kasherable; there is only a custom not to kasher drinking glasses for Pesach since this does not incur a great expense.

There are several ramifications of the Beis Meir’s ruling:

An individual who cannot afford to purchase glassware for Pesach may use his regular, chometz-dik glassware. In this situation, he should kasher his drinking glasses. This approach is followed by the Chayei Odom and the Mishnah Berurah (451:156) who rule that, in a place where glassware is relatively unavailable, glass items should be cleaned well and then kashered for Pesach, by a method called miluy ve’iruy. In this kashering method, glasses are submerged completely in a basin or tub full of cold water for at least 24 hours, the water is changed and glasses are submerged again for at least another 24 hours, and then a third time for at least another 24 hours.

The Mishnah Berurah rules that, if someone does not ordinarily use his glassware for hot chometz or to store chometz, and they used their glasses for Pesach without any kashering at all, the food or beverage placed in them remains kosher for Pesach. More so, in a case of major loss, the Mishnah Berurah permits Pesach-dik food, even when it was placed hot into glassware that was previously used for hot chometz. He permits this only if the glassware was not used for chometz within the previous 24 hours. There are other authorities who are even more lenient (Taz; Pri Chodosh; cf. Shaar Hatziyun 451:196).

According to the Beis Meir’s conclusion, it is permitted to drink a kosher beverage, even a hot tea or coffee, in a “non-kosher” drinking glass. This opinion is mentioned by many halachic authorities (Keneses Hagedolah, Yoreh Deah 121:25 in Hagahos Tur 25; Darkei Teshuvah 121:2; Aruch Hashulchan, Yoreh Deah 121:2). Thus, if you are in a non-kosher house or hotel, the hot tea or coffee you are served in a glass is still kosher. And, if we refer to one of our opening questions: “After serving chicken soup in a glass, may I pour hot milk into the same glass?” — the answer, according to these authorities, is that one may. I suggest that, prior to putting this into practice, our readers should ask this question from their own rav or posek.

Conclusion

The Chiddushei Harim notes that pottery vessels become tamei only from their inside and not when something touches their outside. He explains that this is because a pottery vessel, itself, is considered without inherent value – its value is determined by what it contains, whereas vessels made from other materials have inherent value. On this basis, the Sfas Emes, the grandson and successor of the Chiddushei Harim, notes that man’s value is also determined by what he contains on the inside, not on his outer projected image.

Image above by iprole on Freeimages.com




Jewish Judges and Police

Question #1: Beis din

What is the role of beis din in Jewish life?

Question #2: Police protection

In a community that is run completely according to halacha, who is in charge of appointing and overseeing the police force?

Introduction:

Parshas Mishpatim is the primary parsha regarding halachic civil law, and Parshas Shoftim begins with a mitzvah to appoint shoftim, judges, or as we usually call them dayanim (singular dayan), and shoterim (singular shoteir), enforcement officers, bailiffs or police. The Torah states that you must appoint judges and police in all your “gates,” meaning in all your cities.

Rashi quotes the passage of Gemara (Sanhedrin 16b) that there is a requirement min haTorah to appoint judges in every city and for every tribe. We need to clarify a point: If a beis din is appointed for every city, what is added by appointing a beis din for every sheivet?

The rishonim already address this issue. According to Tosafos (Sanhedrin 16b s.v. Shoftim), the Gemara is teaching that if the border separating two shevatim divides a city between them, the two sections should each have its own beis din. The Ramban (beginning of parshas Shoftim) mentions this approach, and then suggests a different way to understand the Gemara: Each sheivet has a beis din with jurisdiction over the entire sheivet, greater responsibility and authority than has a city’s beis din, whose authority is limited to the city’s borders. Thus, although a city’s beis din can force anyone who lives in its city to follow their directives or to appear before them for litigation, they cannot obligate someone who lives outside their city to appear before them or to follow their orders. A sheivet’s beis din has the ability to force any member of that sheivet to appear before them for litigation. It also has the ability to create a gezeirah that is binding on the entire sheivet.

23 Judges!

The Rambam (Hilchos Sanhedrin 1:1, 3) rules that each city and region in Eretz Yisroel has its own beis din of 23 judges, and that smaller towns and villages have a beis din of three dayanim (Hilchos Sanhedrin 1:4). The Lechem Mishneh (1:1) explains that the Rambam uses the word “region” to mean the same thing that we have been calling sheivet, and also explains why the Rambam changes the term.

The Rambam elaborates on all the different batei din that must be created. There was a chamber in the Beis Hamikdash called the lishkas hagazis, which was the meeting place of the main beis din of Klal Yisroel, the Sanhedrin, also called the Beis Din Hagadol, which consisted of 71 judges. There was a second, smaller beis din of 23 dayanim that was located near the entrance to the Beis Hamikdash, and a third beis din, also of 23 dayanim, that was located near the entrance to the Har Habayis.

The authority of the Sanhedrin

The Sanhedrin has much authority and many roles to play. It is the final court of halachic appeals, and the final decider of halacha. Its interpretation of Torah sheba’al peh is authoritative. Any halachic issue that is uncertain or disputed by a lower beis din could eventually be referred to the Beis Din HaGadol for a binding decision.

When the Sanhedrin exists, the Jewish calendar is determined by a small beis din appointed especially for this purpose by the nasi, the head of the Sanhedrin.

All the other batei din mentioned above — the smaller ones on the Har Habayis and at the entrance to the Beis Hamikdash, and the batei din of the shevatim and the cities – are appointed by the Sanhedrin.

The Sanhedrin also fulfills several political and administrative roles. It appoints the king of the Jewish people. Many other halachos require the participation or agreement of the Sanhedrin, including a decision whether to wage war and to expand the halachic boundaries of the Beis Hamikdash or of Yerushalayim (Mishnah Shevuos 14a; Rambam, Hilchos Sanhedrin 5:1). Thus, the Sanhedrin is not only the supreme halachic authority, but it is also quite literally the “power behind the throne,” “the power behind the courts,” and, at the same time, the court of final appeal. It has the final say in all matters, both temporal and spiritual.

Who can be a judge?

There are many technical requirements that all members must meet, among them that they must all be superior talmidei chachomim and yirei shamayim (G-d fearing individuals), wise, perceptive, analytic, humble, truth-loving, personable, of good reputation and possess a basic knowledge of many secular areas, such as medicine and astronomy (Rambam, Hilchos Sanhedrin 2:1, 7). The Rambam (Hilchos Sanhedrin 2:8) describes how the Sanhedrin would send representatives to locate qualified dayanim and appoint them to their local beis din. As places on the higher batei din opened, they would promote local dayanim up the chain to the next tier, and so on. The Rambam also emphasizes the importance of appointing appropriately qualified people to be dayanim, and the catastrophe that results from appointing those who are unqualified or inappropriate (Hilchos Sanhedrin 3:8).

Semicha

All members of the Sanhedrin and, indeed, of all the lower courts must also receive the special semicha that Moshe bestowed upon Yehoshua authorizing him to rule on all areas of Jewish law. This special semicha, which existed from the time of Moshe Rabbeinu until sometime during the era of the Gemara, authorized the recipient to rule on capital and corporal cases (chayavei misas beis din and malkus) and to judge cases involving kenasos, penalties that the Torah invoked. Only a beis din consisting exclusively of dayanim ordained with this semicha may judge these areas of halacha (Rambam, Hilchos Sanhedrin 4:1).

In today’s world, there are several levels of semicha, all of them of a lower level than that granted by Moshe Rabbeinu. The most basic semicha, yoreh yoreh, authorizes the recipient to rule on matters of kashrus and similar areas. A more advanced level of semicha called yodin yodin authorizes its recipient to rule as a dayan on financial matters. A higher level, no longer obtainable today, is called yatir bechoros and authorizes its recipient to rule on whether a first-born animal is blemished and no longer acceptable as a korban, which permits the animal to be shechted for its meat (see Sanhedrin 5a).

The role of a local beis din

The local beis din’s responsibility in a community is also quite multi-faceted. They are not only the judicial branch of the government, charged with ruling on local dinei Torah and interpreting the halachos for local practice, but they are also the executive, or administrative, branch of government, responsible to supervise that the community and its individuals observe halacha fully and correctly. In this capacity, they are responsible to make sure that the weights and measures in the marketplace are honest (Rambam, Hilchos Sanhedrin 1:1) and that the prices charged by stores do not exceed what halacha permits. The local beis din is responsible to make sure that no one overcharges for staple products (ibid.; Shulchan Aruch, Choshen Mishpat 231:20).

Overseeing that the community observes halacha correctly is also a responsibility of the beis din. For example, the Rambam and Shulchan Aruch rule that beis din supervises that yomim tovim do not become the cause for inappropriate social activities. This includes assigning police to patrol parks and other relaxing areas to maintain proper standards of public conduct (Rambam, Hilchos Yom Tov 6:21, Shulchan Aruch Orach Chayim 529:4). Beis din is responsible to make sure that duchening was performed only by kosher kohanim (Kesubos 25a). It is their job to make sure that no one works on chol hamoed in violation of the halacha (Rambam, Hilchos Yom Tov 7:4), that people keep their pledges to tzedakah (Rosh Hashanah 6a), that graves and other tamei meis areas are properly marked, and that people do not plantor maintain kelayim (Rambam, Hilchos Yom Tov 7:11).

The beis din assumes responsibility to protect individuals who cannot oversee their businesses or properties, such as, someone who fled to avoid danger, was kidnapped or captured. Beis din will appoint someone to manage the individual’s properties and businesses (Shulchan Aruch Choshen Mishpat 285:2). They are also responsible to see that the properties of orphaned minors are properly managed (for example, see Shulchan Aruch Even Ha’ezer, 112:11).

Included in this responsibility is that, if a father cannot or does not give his son a bris milah, the beis din makes sure that the mitzvah is performed (Kiddushin 29a; Shulchan Aruch Yoreh Deah 261:1).

Smaller batei din

In addition to the officially appointed batei din, in earlier generations there were local batei din, appointed by a community to oversee its own matters. For example, the kohanim had their own batei din, who were authorized to make rules and new takanos that applied only to the kohanim (see Pesachim 90b; Kesubos 12a).

Chutz la’aretz

The Ramban (beginning of Parshas Shoftim) notes that the posuk implies that there is no requirement min haTorah to establish a beis din outside of Eretz Yisroel. This is because the Torah requires appointing judges and bailiffs in your gates, which means the gates of Jewish cities in Eretz Yisroel. However, the Ramban notes that the Gemara (Makkos 7a) rules that once Klal Yisroel arrives in and settles Eretz Yisroel, there is an obligation min haTorah to have a beis din in chutz la’aretz also, although not in every city, but only in “districts.”

Min haTorah or not?

The Ramban concludes that establishing batei din outside Eretz Yisroel isrequired min haTorah only when there are dayanim who have achieved the highest level of semicha, that which is a continuation of what Moshe Rabbeinu conferred on Yehoshua. As I mentioned above, this semicha was discontinued during the era of the Gemara. There have been several attempts to reestablish this semicha, the most famous of which was when the Mahari Beirav was the rav of Tzfas, and Rav Yosef Karo was a member of his beis din. However, none of these attempts succeeded. The Ramban concludes that, although we no longer have a Torah obligation to establish batei din in chutz la’aretz, there is a rabbinic requirement to do so.

How do we litigate?

Over the years, I have been asked many questions about the way batei din operate. Most of these questions stem from a misunderstanding of legal procedures in general, or from a lack of knowledge about how a beis din functions.

Here is a typical example, lifted from my records. The din Torah was the result of a business partnership that had soured. I received the following e-mail communication: “I have asked Mr. F. to tell me what he is claiming. He has not responded, but has clammed up about his claim. He knows what I am claiming and he said that I have to sign an arbitration agreement in beis din and only then will he present what he is claiming from me. I am asking if this is just — he knows what I am claiming but what he is claiming will be a surprise.”

I answered: “Mr. F. is under no obligation to reveal to you what he feels you owe him, without an agreement that the two of you will go to binding arbitration in beis din. Telling him the basis of your claims does not require him to reveal any information. If you feel that you can disprove his claims, you should tell that to the beis din, and you have a right to postpone the proceedings to allow you the time to present your proofs.

In the interim, you can agree to go to beis din, or you can suggest that the two of you discuss the matter in the presence of a disinterested party in the hope of negotiating some type of settlement. However, he is under no obligation to agree to this. If you receive a summons to beis din, you are required to respond.”

By the way, when choosing to go to a beis din, the almost-universal tendency is to find a beis din where I will “win” my case. However, the mitzvah specifies that you should go to the beis din that is most expert (Sanhedrin 32a). The Gemara implies that this is a mitzvah min haTorah, derived from the words in Parshas Shoftim, tzedek tzedek tirdof, which the Gemara explains to mean haleich achar beis din yafeh, “find the most expert beis din” to litigate your case, so that it is resolved correctly.

Turf wars

What do you do if the other party insists that you go to their choice of beis din?

I mentioned earlier that the Ramban explains that the dayanim of a sheivet have greater jurisdiction than do those of a city, who cannot force someone from outside their city to come before them for litigation. A sheivet’s beis din has the ability to force anyone in their sheivet to come to them for litigation. The same authority applies to a city’s beis din relative to a city’s inhabitants. Therefore, if our beis din system were able to work the way the Torah designed it, the official dayanim of a city would be able to require litigants to appear before them.

Because the countries in which we live will not compel halachic observance, we cannot legally coerce someone to appear before an official city beis din. But an observant Jew knows that he must appear before beis din when summoned.

The person being sued (the defendant) is usually assumed to have the right to choose which beis din will hear the case, as long as it is in his city of residence. However, this is not ironclad. If the defendant chooses a beis din that will be more expensive for the claimant, or he is trying simply to inconvenience the claimant, there is no right to choose this option over a more-convenient, less-expensive choice. If the defendant visits or does business in the city where the claimant lives, and the claimant rarely travels to the defendant’s city, the beis din in the claimant’s city can demand to judge the case (Shu”t Maharshdam #103; Shu”t Igros Moshe, Choshen Mishpat 1:5; Shu”t Yabia Omer 7:Choshen Mishpat:4). Under these circumstances, a proper beis din will ignore the defendant’s request for choice of venue, and should he not respond to his summons, rule him a lo tzayis dina, someone who does not obey the laws of the Torah, which has many ramifications (Aruch Hashulchan, Choshen Mishpat 26:2, 5; Shu”t Imrei Yosher #38).

Conclusion

A Torah Jew must realize that Hashem’s Torah is all-encompassing, and that every aspect of his life is governed by Torah law. A Jew hopes to manage his business relationships without ever resorting to litigation. If there is an unfortunate “misunderstanding,” the two parties should discuss the matter and, if the matter remains unresolved, they should try discussing it with the guidance of a third party, possibly a rav. However, should all these approaches not succeed, the avenue of halachic litigation exists.




Only New Chometz Apply

Since parshas Bo includes the prohibitions about chometz on Pesach

Question #1: First Fruits

Which korbanos are offered only from “first fruits”?

Question #2: New Grains

Which korbanos are offered only from the new grain?

Question #3: Wheat from Heaven!

May korbanos be offered from heavenly-dropped wheat?

Foreword

Virtually all grain korbanos, called menachos (singular: mincha), are wheat, mankind’s most common basic sustenance. However, on the second day of Pesach, the korban omer is offered in the Beis Hamikdash from the new crop of barley. Indeed, it is the only barley-flour korban offered by the tzibur, the community. In general, barley is viewed as animal feed, rather than “people food” (see Pesachim 3b). (The only other korban from barley was the minchas sotah, a privately offered korban for which there is an obvious reason why it is from a feed grain, as Rashi [Bamidbar 5:15] and the midrashim [Midrash Agadah and Yalkut Shimoni ad loc.] elaborate.) Presumably, the reason that the korban omer was from barley is because barley ripens earlier than wheat and the korban omer permits the consumption of the new grain crop; the Torah did not delay until the wheat is ready for harvest.

In honor of Shavuos

Seven weeks later, on Shavuos, special korbanos, called the shetei halechem, are offered from the new wheat crop. Although this korban is kosher if made from the previous year’s wheat crop, there is a mitzvah min haTorah to bring it from the new crop. The offering of the shetei halechem permits the new crop to be used for menachos.

Introduction

Immediately after describing the korban omer, the Torah teaches: “And you shall each count seven complete weeks, from the morrow after that day of rest [the first day of Pesach], beginning on the day of your bringing the omer, which is waved. You shall count fifty days, until the morrow after the seventh week, at which time you shall offer a new grain offering to Hashem. From your dwelling places (Hebrew: ‘mimoshevoseichem’) you shall bring two loaves of bread. They (the two loaves together) shall comprise two tenths of an omer of fine flour. They shall be baked leavened (Hebrew: ‘chometz’) and be the first fruits unto Hashem (Hebrew: ‘bikkurim’). Together with the bread, you shall bring a group of seven yearling sheep and, also, one young bull and two rams. These (ten animals) will be olah offerings for Hashem, offered together with their appropriate grain offerings and libations. This is a fire offering, to show Hashem the fragrance of compliance” (Vayikra 23, 15-18; the translation of the word ניחוח follows that of Rav Hirsch). The Torah then completes the description, including that three more korbanos accompanied the shetei halechem, a male goat as a chatas and two yearling sheep as publically-owned korbanos shelamim, for a total of thirteen animal korbanos.

The Torah passage that I just quoted includes several interesting observations:

Receiving the Torah?

(1) Although calculation demonstrates that the holiday of Shavuos coincides with the giving of the Torah, neither here nor any other place does the Torah make any association between the two. This article will not discuss this famous question, to which there are many answers.

Imported grain

(2) We are told that the shetei halechem must be brought “from your dwelling places.” But grain is never grown in dwellings, but open fields!

The Gemara (Menachos 83b) explains that “dwelling place” here means Eretz Yisrael, and that, whereas other mincha offerings may use grain imported from outside Eretz Yisrael, shetei halechem may use only grain that grew in Eretz Yisrael (Mishnah Menachos 83b; Keilim 1:6; Parah 2:1).

Alef emphasis

(3) The word immediately after mimoshevoseichem in the Torah is תביאו, “you shall bring,” but the letter alef in that word contains a dagesh. However, an alef never otherwise has a dagesh. Why this anomaly? Rav Hirsch suggests that this is to emphasize the uniqueness of the shetei halechem as the only mincha in which the animal offerings are brought only as an accompaniment to the grain offering.

Chometz

(4) The Torah reports that the shetei halechem “shall be baked leavened.” This is very unusual. All grain offerings in the Beis Hamikdash must be unleavened – they all halachically qualify as matzah. Even the “leftovers” from all mincha offerings may not be allowed to become chometz (Vayikra 6:9-10)! A kohein who violates this last instruction intentionally could receive malkus, lashes, and would no longer be accepted as a witness!

There are only two exceptions – two instances of a grain offering in the Beis Hamikdash which is made from chometz: one of the four types of “bread” that accompanied the korban todah was chometz (Vayikra 7:13) and the shetei halechem of Shavuos (Mishnah, Menachos 52b). In both of these instances, the Torah states that they must be chometz.

The shetei halechem are the only public korbanos that are chometz, since the korban todah is an individual’s thanksgiving offering for surviving travail (Tehillim 100, 107 and Berachos 54b). Since the Torah states that no mincha “offered to Hashem” may be chometz (Vayikra 2:11), the chometz parts of these menachos are never placed on the mizbeiach, but are eaten in Yerushalayim while completely tahor, either by the kohanim and their families or by the owners of the korban.

Who is first?

(5) Furthermore, the Torah states that the shetei halechem must be bikkurim. Yet bikkurim usually means the fruits that a farmer grows in his field and brings to the Beis Hamikdash as his own thanks offering (see Devarim 26:1-11 and Mishnah, Mesechta Bikkurim). The Gemara explains that the word bikkurim, here, means that this year’s grain crops cannot be used for menachos before the shetei halechem has been offered. In addition, the Mishnah teaches that, what we usually call the bikkurim, the special, first-ripening fruits for which Eretz Yisrael is renowned, are not brought to the Beis Hamikdash until the shetei halechem korban is offered (Menachos 68b; see also Bikkurim 1:10).

Meat with bread

(6) The Torah states: “Together with the bread, you shall bring a group of seven yearling sheep and, also, one young bull and two rams.” These are not the korbanos musaf offered on Shavuos, which are mentioned in parshas Pinchas and are offered on Shavuos, even if no shetei halechem mincha is brought.

Virtually all grain offerings in the Beis Hamikdash are brought either without any animal korbanos, or to accompany the animal offerings. It is unusual that the main korban is one made from flour, and the animal offerings accompany the grain offerings; but that is the law regarding the shetei halechem. This is truly unique in the instance of the shetei halechem, since it is the only mincha that causes thirteen animal korbanos to be brought as a result. If the shetei halechem is not offered, these korbanos cannot be brought, but if these korbanos are not brought, the shetei halechem is kosher by itself.

The only other mincha that is the cause of the bringing of a korban is the korban omer, but in that case, only one korban is offered, a sheep. Shetei halechem are completely unique in that it is the only instance in which a grain offering causes the offering of a large group of korbanos.

Details, details:

In addition to these observations that lie directly in the pesukim themselves, there are a host of other unusual features that apply to the shetei halechem, such as:

1. The Mishnah (Menachos 59a) notes that the mincha of the shetei halechem is not accompanied by either oil or frankincense, unlike most mincha offerings. Why not?

To answer this question, I refer you to read, in detail, the commentary of Rav Hirsch (Vayikra 23:17).

2. The shetei halechem must be brought from grain that had not yet taken root prior to this year’s crop season (Mishnah, Menachos 83b; Parah 2:1; we should note the Rambam does not rule according to this Mishnah, a position that engenders much discussion). The shetei halechem permitted use of new grain in the Beis Hamikdash (Mishnah Menachos 68b). Menachos offered from the new grain before the korban omer was offered were invalid, whereas those offered before the shetei halechem were brought were kosher, although a Torah violation was involved in bringing them (Menachos 68b). I will return to this halacha shortly.

3. Although you may bake bread, challah, cake or cookies on Yom Tov to serve on that day, and the korbanos to be brought on that day (such as korbanos musaf and korban pesach) are shechted, butchered and burnt on the mizbeiach on Shabbos and certainly on Yom Tov, the shetei halechem could not be baked on Shavuos (Menachos 95b and 100b). The reason they could not be baked on Yom Tov is because baking and cooking on Yom Tov are permitted only to benefit Jews who will be celebrating Yom Tov, but it is prohibited to bake a korban on Yom Tov. Although korbanos are brought on Yom Tov, this applies only to the processing of the korban necessary to be performed that day. The baking of the menachos, similar to the baking of the twelve loaves of the lechem hapanim (the showbread) for Shabbos, could be performed before Shabbos or Yom Tov, and therefore the two loaves of the shetei halechem must be baked before Yom Tov.

Many halachic authorities raise the following question: Why can’t you bake your own private bread on Yom Tov for Yom Tov use, and, while doing do, bake the shetei halechem? There is much discussion among acharonim regarding this question, without any specifically accepted answer.

4. The shetei halechem and the two shelamim sheep offered with it were held up by the kohein and waved in six directions – upwards and downwards and in four directions of the globe, similar to the way the lulav and esrog are waved on Sukkos (Mishnah Menachos 61a).

5. The Mishnah teaches that ten miracles occurred in the Beis Hamikdash, one of which was that the korban omer and the shetei halechem were never invalidated by a pesul in which something unplanned went wrong (Pirkei Avos 5:5).

Heavenly wheat!

In this context, we have the following unusual passage of Gemara: “What is the halacha regarding wheat that fell from the clouds? Can it be used for the shetei halechem offering?”

Rashi and his grandson, Rabbeinu Tam, disagreed regarding what case is being described here. Rabbeinu Tam understands that the Gemara is discussing wheat that miraculously fell from heaven, similar to the way the mann in the desert arrived every morning. As traditionally explained, the berocha recited before eating the mann was “Hamamtir lechem min hashamayim,” “Blessed are You, Hashem… Who rains bread from the sky” (quoted by Shu’t Torah Lishmah #63, in the name of the Rama MiFano).

The Radbaz (Hilchos Temidim Umusafim, 8:3) is dissatisfied with Rabbeinu Tam’s approach, noting that Hashem brings miracles only when a major reason exists for them.

Stormy wheat

For these and other reasons, most late authorities prefer Rashi’s approach that the Gemara is discussing wheat that was blown by gale-force winds off a ship in the Mediterranean, or perhaps were on an island in the Mediterranean Sea, and then landed in Eretz Yisrael. We do not necessarily know the origin of the wheat; just that it landed in Eretz Yisrael.

Following either Rashi’s approach or that of his grandson, the Torah states that the shetei halechem must be offered from grain that grew mimoshevoseichem, from your dwelling places, and we learned above that this requires that shetei halechem must use wheat that grew in Eretz Yisrael. The question is whether this wheat, either the miraculous variety of Rabbeinu Tam’s version, or the windswept variety of Rashi’s, qualifies as wheat that grew mimoshevoseichem. (Our intrepid readers are referred to the commentary of the Mahari Kurkus on the Rambam, Hilchos Temidim Umusafim, 8:3, who analyses this issue.)

Brought too early

Regarding the shetei halechem offering, the Gemara presents the following intriguing anecdote. As I mentioned above, the Mishnah states that both the korban omer and the shetei halechem must be offered from the new crop (the korban omer from the new barley crop, and shetei halechem from the new wheat crop). The Mishnah also states that it was forbidden to eat from the new grain crop before the korban omer was offered, which is the prohibition of chodosh, and it is forbidden to offer a grain korban from the new crop until after the shetei halechem are offered. But, regarding a mincha from the new grain crop that is brought before the shetei halechem, the Mishnah makes the following distinction: If the new grain mincha was brought before the korban omer was offered on the second day of Pesach, the mincha is invalid, whereas if such a korban was brought after the korban omer was offered but before the shetei halechem, the mincha is kosher, notwithstanding that it is prohibited min haTorah to offer such a korban mincha.

Rabbi Tarfon, an older contemporary of Rabbi Akiva and one of the greatest Torah scholars of all time, queried why the offering of the korban omer, whose purpose was to permit the new grain to be eaten, should affect whether a mincha offered in the Beis Hamikdash is kosher or not?

A budding young scholar named Yehudah bar Nechemiah (besides this passage of Gemara, his name appears in several midrashim, mostly Midrash Rabbah and Midrash Tanchuma) answered Rabbi Tarfon with a brilliant insight: Prior to the bringing of the korban omer, the new grain qualifies as ma’achalos asuros, foods that a Jew is prohibited from eating – and there is a halacha that one cannot offer korbanos from products that a Jew may not consume. On the other hand, once the korban omer is offered, it is permitted to eat the new grain. It cannot be used for menachos because of a different law — the Torah refers to the shetei halechem as mincha chadasha, meaning that they should be the first korbanos offered from the new wheat crop. Should a different mincha be brought first from the new wheat crop, the shetei halechem are no longer mincha chadasha.

Yehudah bar Nechemiah argued that prior to the offering of the korban omer, the new grain has the status of ma’achalos asuros, which are never acceptable as korbanos, even after the fact (be’dei’evid). However, once the korban omer is offered, although it is still prohibited to use the new grain for menachos, we find many instances in which it is not proper to offer a korban a certain way, but be’dei’evid, after the fact, the korban is still kosher. Rabbi Tarfon was silent, implying that he accepted Yehudah bar Nechemiah’s response.

Rabbi Akiva, who, among other great luminaries of the era, was in attendance during this discussion, noted that Yehudah bar Nechemiah was smiling – demonstrating that he was personally satisfied to have bested a gadol beYisrael in a Torah discussion. Rabbi Akiva realized that Yehudah bar Nechemiah was afflicted with a very bad shortcoming – misplaced personal pride. Rabbi Akiva then forecast, within Yehudah bar Nechemiah’s earshot.

“Yehudah, I will be surprised if you’ll live a long time!” This was not intended as a curse, but a prediction.

The Gemara then quotes from the famous tanna, Rabbi Yehudah (the son of Rav Ila’ii), who was also present during this exchange. Rabbi Yehudah shared that the discussion between Rabbi Tarfon and Yehudah bar Nechemiah took place two weeks before Pesach, and that when he, Rabbi Yehudah (who lived in the southern part of Eretz Yisrael) returned for Shavuos to the beis hamedrash of the Sanhedrin, he did not find Yehudah bar Nechemiah. When Rabbi Yehudah inquired about Yehudah bar Nechemiah’s wellbeing, he was told that Yehudah bar Nechemiah had passed away suddenly in the interim.

This very tragic turn of events brings to mind both the deaths of Rabbi Akiva’s 24,000 disciples (which occurred shortly after the sudden passing of Yehudah bar Nechemiah) and the much earlier tragedy of the sudden deaths of Nadav and Avihu, the two oldest sons of Aharon. In all of these instances, young, brilliant Torah scholars were suddenly taken because of personal character flaws. As implied by the midrash, had these young, great scholars become the leaders of the Jewish people, this would have caused irreparable damage to our mesorah. Klal Yisrael survives only when those who carry on the mesorah do so solely because of their obligation to Hashem, not because of personal interest.

Conclusion

Do we live with a burning desire to see the Beis Hamikdash rebuilt speedily in our days? Studying the halachos of the korbanos should help us develop our sensitivity and desire to see the Beis Hamikdash again in all its glory. May we soon merit seeing the kohanim offering all the korbanos in the Beis Hamikdash in purity and sanctity and Klal Yisrael in our rightful place in Eretz Yisrael, as a light unto the nations!




Maaser Kesafim

Since the first source of the obligation of maaser kesafim is in this week’s parsha…

Question #1: Paying for Your Kids in Kollel

“I agreed to support my married children for five years. May I use maaser money for this?”

Question #2: Chomesh

What is chomesh?

Question #3: Tuition

May I pay tuition out of maaser kesafim funds?

Question #4: Testing Hashem!

May I ask Hashem to pay me back for the tzedakah money that I give?

Which maaser?

We should first note that the term maaser, without specifying which one, is used sometimes in the Mishnah and Gemara to refer to maaser rishon, and sometimes to refer to maaser sheini, and, in later halachic works, sometimes also to maaser kesafim. These three types of maaser have vastly different laws from one another. Usually, one can understand from context which maaser is intended. If the context alludes to maaser owned by a Levi, or to the first maaser being separated, maaser rishon is intended. If it refers to something that has sanctity, usually maaser sheini is intended. If it refers to a percentage of one’s income that is donated to tzedakah, it refers to maaser kesafim.

The above questions all relate to shaylos about how much someone should donate to tzedakah and how he should prioritize his giving. It is well known that Rav Moshe Feinstein used to complain that these are areas of halacha about which he was asked too infrequently.

Maaser kesafim: giving ten percent of one’s moneys to tzedakah. The poskim dispute whether one subtracts household expenses from one’s income, before calculating maaser.

The concept of maaser is primarily in the case of ayn ani bifanav, when I fulfill the mitzvah by putting aside money for tzedakah. In a case of ani bifanav I do not fulfill my mitzvah by giving him only ten percent.

A person who distributes maaser kesafim to the poor is blessed with a special guarantee of wealth (Taanis 9a). This beracha happens only when someone is meticulous to calculate exactly a tenth of one’s income for tzedakah (Shu’t Avkas Rocheil #3). Furthermore, this beracha is fulfilled only if one gives this maaser money to the poor, but if one gives part of it to other causes, there is no guarantee that wealth will follow (see Shu’t Radbaz 3:441). Therefore, although one may use maaser kesafim to buy an aliyah, pay for a “mi’shebeirach,” purchase sefarim that will be used by the tzibur (Taz, Yoreh Deah 249:1) or similar communal needs, it is preferred to earmark maaser kesafim for the needs of the poor (Rema, Yoreh Deah 249:1). Donations to Torah institutions are considered distributions to the poor (Ahavas Chesed 2:19:2), as are hachnasas kallah expenses (to pay wedding and related expenses for a poor groom or bride).

Chomesh: giving twenty percent of one’s moneys to tzedakah. This is the optimal level of fulfilling mitzvas tzedakah, whereas setting aside ten percent is considered only “midah beinonis,” an average person’s conduct. Someone who gives a chomesh to tzedakah should first calculate and set aside one tenth, and then a second tenth.

Before starting to give regular amounts of tzedakah on an ongoing basis, one should declare that he is following this procedure bli neder, without accepting it as a vow.

Paying for Your Kids in Kollel from Maaser Money

“I agreed to support my married children for five years. May I use maaser money for this?”

The Chasam Sofer authored a responsum (Shu’t Chasam Sofer, Yoreh Deah #231) on this subject, which is fascinating for the many different halachic issues that he clarifies. Someone had arranged the marriage of his scholarly son to the daughter of a talmid chacham,with the following understanding: The father of the son accepted that he would pay every week a certain amount to his mechutan, the bride’s father, who would sustain the young growing family in his home, thus enabling the son-in-law to continue his studies under his father-in-law’s direction. The father of the chosson realized that it will be difficult for him to meet this commitment, and wants to know if he can use the maaser money from his business endeavors to provide the support for which he is responsible.

The Chasam Sofer opens his discussion by quoting two opinions that seem to dispute whether it is acceptable to use maaser money for such an expenditure. The Rema, quoting the Maharil, contends that it is not permitted to use maaser money to pay for a mitzvah, such as donating lamps and candles to the shul, whereas the Shach states, in the name of the Maharam, that it is permitted to use maaser money for mitzvos. Thus, whether one may pay for mitzvos, other than supporting the poor, from maaser money appears to be a dispute among early authorities.

The Chasam Sofer then quotes the Be’er Hagolah, who explains that the two above-quoted opinions are not in dispute. All authorities prohibit using maaser money to fulfill a mitzvah that someone is already obligated to observe. The Maharam, who permitted using maaser money for these purposes, was discussing a case in which the donor intended to use maaser money for this mitzvah from the outset, whereas the Maharil is discussing a situation in which he has been using his maaser money to support the poor, in which case he cannot now divert it for other mitzvos that do not qualify as tzedakah for the poor. Thus, according to the Be’er Hagolah, whether the father can begin meeting his obligations to his son and mechutan with his maaser money will depend on whether he has already accepted the obligation on himself to pay this from other funds, in which case he cannotuse maaser money for it, or if it is an obligation that he is now accepting upon himself, in which case he can specify that he wants to use maaser money to fulfill it.

The Chasam Sofer does not consider the approach of the Be’er Hagolah to be fully correct. He (the Chasam Sofer) notes that the Maharil wrote that maaser moneys are meant to support the poor and not for the acquisition of mitzvos. Therefore, use of maaser money for any type of personal mitzvah is inappropriate, whether he is already obligated to fulfill the mitzvah or not.

The Chasam Sofer concludes that when someone begins donating maaser money, he may stipulate that, sometimes, the money will be used for a mitzvah donation, such as the lighting in shul. However, once he has begun donating his maaser money regularly to the poor, he must continue using it for tzedakah.

Family first

Having determined that there are definitely situations in which maaser money must be given to the poor, the Chasam Sofer then discusses when and whether money designated for the poor can be used to support an individual’s extended family. There is a general rule that one is obligated to the poor to whom one is closest – close family first, more distant family next, neighbors third, members of one’s city next and the out-of-town poor next.

Greater needs

Notwithstanding that family should be supported first, the Chasam Sofer quotes from his rebbi, the author of the Haflaah, that the rules of “closest first” or “family first” are only when the funds are necessary for the same level of need, for example, all have enough to eat, but not enough for clothing. However, if some are short of food, and others have enough to eat but are short on clothing or other needs, the responsibility to make sure that someone has enough to eat comes first, even for someone out of town, regardless of whether there are neighbors or locals who are needy, as long as they have sufficient food.

Yet, concludes the Chasam Sofer, this prioritization is not absolute. All needs of someone’s family are considered his responsibility before the basic needs of others. In other words, the priorities should be as follows:

(1) Family needs.

(2) Most basic needs – food – regardless of location of needy.

(3) People of one’s city.

(4) The out-of-town poor.

Chasam Sofer’s conclusion

If the father had stipulated, at the time of obligating himself to support his son, that he would use maaser money for this obligation, he would be able to use it. Even then, the Chasam Sofer recommends that he use only up to half of his available maaser money to support his son. His reasoning is based on a Mishnah (Peah 8:6) which says that someone is permitted to save his maaser ani (the tithe one gives to the poor in the third and sixth year of the shemittah cycle) to support those that he chooses to, but he should not set aside more than half of his maaser ani for this purpose; the rest should be given to the local poor.

However, this is only when he had originally planned to use maaser money for this purpose. Otherwise, once he created an obligation upon himself to support his son, it is similar to any other obligation that he has, and he may not use his maaser money for this purpose.

Tuition

Rav Moshe Feinstein ruled that one should not pay tuition for sons and daughters in elementary school and high school from maaser funds, because this level of education is obligatory. However, someone eligible for a tuition reduction who elects to pay full tuition may pay the extra from maaser (Shu’t Igros Moshe, Yoreh Deah 2:113; also see Ahavas Chesed 2:19:2). If paying the expected amount of tuition without resorting to maaser funds creates hardship, one should ask a shaylah.

Yeshiva gedolah tuition and expenses may be paid from maaser, because a parent is not obligated to support a child at this age.

Testing Hashem!

At this point, let us discuss the last of our opening questions: “May I ask Hashem to pay me back for the tzedakah money that I give?”

It is generally prohibited to “test” Hashem, as the Torah states, “Lo senasu es Hashem,” “Do not test Hashem” (Devarim 6:16). One may not say, “I am performing this mitzvah so that Hashem will reward me by providing me with such-and-such (Sefer Yerei’im #361; Sefer Hachinuch, Mitzvah 395, 424; Shu’t Radbaz #882).

However, there is one exception to this rule – one may give maaser kesafim, expecting to be blessed with wealth as a reward (Taanis 9a, as explained by Shu’t Avkas Rocheil #3; Sefer Hassidim #144; Rema, Yoreh Deah 247:4; Ahavas Chesed 2:18. Cf. Shel”a and She’ei’las Ya’avetz #3, quoted in Pischei Teshuvah 247:2).

The Gemara (Taanis 9a) relates that, after Reish Lakeish’s passing, Rabbi Yochanan encountered his nephew (who was Reish Lakeish’s son). Rabbi Yochanan asked his nephew what he had learned in cheder that day. The nephew replied, “Te’aser kedei shetis’asher,” “Give maaser so that you get rich.”

“How do you know?” asked Rabbi Yochanan.

“Go test it,” answered the nephew, who then asked, “But is one permitted to test Hashem?”

Rabbi Yochanan replied, “I heard from my rebbe, Rabbi Hoshiyah, that this is an exception –because of the pasuk in Malachi (3:10), where Hashem begs us to test Him when giving maaser and see for yourself that He opens the windows of Heaven and grants blessings until our lips weary of saying ‘Enough!’”

We see from this that it is permitted to declare that I am giving the correct amount of tzedakah and expect that Hashem will reward me with wealth. I know several people who personally attest that this beracha was fulfilled!




Hybrid Halacha

Question #1: Grapes

Why is kilayim of grapes different from all the other kilayim prohibitions?

Question #2: Great Auks

Is it permitted to crossbreed auks and ducks?

Question #3: The Grand, Green Movers

I am green. Instead of trucks, may I use elephants, water buffalo and draft horses together to move my house?

Question #4: Accused of Graft!

Where does the Torah prohibit grafting trees?

Introduction:

In parshas Bereishis, the various species of animals and plants were instructed to reproduce lemi’neihem, according to their species, meaning that they were not to hybridize (crossbreed) with other species. These sources in parshas Bereishis bring to mind the several mitzvos taught later in the Torah not to mix species(Chullin 60a; Tosafos, Sanhedrin 60a; Ramban, Bereishis 1:26; Rashbam, Vayikra 19:19).

The word kilayim is translated by Onkelos and ibn Ezra (Vayikra 19:19) as “mixture,” although other commentaries understand that this word originates from the same Hebrew root as the word “prison,” beis ke’le (see Yeshayah, 42:22). This approach is quoted in the name of the Raavad (by the Rashas, in his commentary to the Yerushalmi, Kilayim 3:5) and by Rav Hirsch (Vayikra 19:19), who explains that the shoresh כ ל א means to keep or hold something back, and that the plural structure kilayim is similar to yadayim “hands” or raglayim “feet,” and means a pair. Therefore, the word kilayim means to treat as a pair two items (similar to our pair of hands) that are required to be kept separate.

Having explained the source of the word kilayim this way, there is no need to assume that Onkelos or ibn Ezra disagree. They are merely elucidating the word in the context of the posuk, where it means a forbidden mixture, whereas Rav Hirsch is explaining the etymological basis for this meaning.

Kilayim versus hybridization

It is important to clarify a common misconception. The prohibition of kilayim is not necessarily the creation of a new species — it is the appearance that one is mingling two species together. My desktop dictionary defines hybrid as “the offspring produced by breeding plants or animals of different varieties, species, or races.” Hybridization always involves making changes in the DNA of a species; most instances of kilayim do not. Planting seeds of different species in close proximity does not affect their genetic makeup – thus, technically, no hybridization transpires — yet it may be prohibited min haTorah. Similarly, wearing a garment manufactured from woolen and linen thread does not affect the two parent species or the DNA of the thread in the slightest.

Kilayim prohibitions

The Torah teaches about kilayim in two places, in parshas Kedoshim and in parshas Ki Seitzei. There the Torah mentions a total of six lo saaseh prohibitions, each of which is counted among the 365 lo saasehs that are included in the 613 mitzvos.

In parshas Kedoshim (Vayikra 19:19), the Torah teaches:

(1) Observe my laws! Do not mate your animal with a diverse species (kilayim).

(2) Do not plant your field with a diverse species.

(3) A garment containing diverse species called shatnez you shall not put upon yourself.

In parshas Ki Seitzei (Devorim 22:9-12), the Torah states:

(4) Do not plant diverse species in your vineyard

(5) lest what grows become sanctified (tukdash); the seed that was planted together with the growth of the vineyard.

(6) Do not plow with an ox and a donkey together.

(3, again) Do not wear shatnez, wool and linen together.

Of the six lo saaseh prohibitions counted here, the Torah calls four of them kilayim (which we translated as “diverse species”). The fifth, “lo sacharosh,” do not plow, prohibits different species of animals working together, such as plowing or pulling wagons, but is not called kilayim by the Torah.

The sixth is a prohibition against using what grew as kilayim in a vineyard. There is no prohibition in using any of the other mixtures, meaning that, although it is forbidden to hybridize different species of animals, crossbreed fruit, or plow with different species of animals, it is permitted to eat a crossbred fruit or what grew in a kilayim field other than a vineyard. Similarly, it is permitted to use a shatnez garment as long as I don’t wear it.

Grapes are different!

This leads us to our opening question: “Why is kilayim of grapes different from all the other kilayim prohibitions?” The product of kilayim of other species, including the fruit created by grafting and the mule created by mating a male donkey (jack) with a mare (female horse), are permitted to be used, even if a Jew created them in violation of the halacha. Only in the instance of kil’ei hakerem is there a prohibition to use what is produced.

This prohibition is derived from a careful reading of the pasuk, where the Torah states: Do not plant diverse species in your vineyard lest what grows become sanctified (tukdash); the seed that was planted together with the growth of the vineyard. None of the other kilayim prohibitions include an additional lo saaseh that applies to what grows afterward. The Torah’s method of conveying this law is the word tukdash. The Rashbam explains the word tukdash to mean sanctified — the produce becomes prohibited like kodashim are prohibited for personal use. Although other rishonim have different explanations of the word tukdash, all agree that the produce that grows there is prohibited for use min haTorah.

Why are vineyards different?

Why does the prohibition against benefitting exist only with regard to kilayim in a vineyard? The Chizkuni (Devorim 22:9) explains because otherwise this type of kilayim can slip by unnoticed; the wheat that grows in a vineyard does not look different from wheat grown in a wheat field, as opposed to shatnez and animal husbandry, where the item worn or produced is noticeable that it includes two different “species.” Note that the grafting of a tree is similarly highly noticeable, at least initially.

Animal Hybrids

Thousands of years ago, mankind crossbred horses and donkeys to create mules and hinnies. This hybrid, called a pered (female pirdah) is already mentioned many times in Tanach. As a pack animal, the mule, produced from a male donkey and a mare, may have advantages over either of its parents. It is usually as strong as a horse, yet sturdier and more sure-footed, and — notwithstanding its reputation for being “stubborn as a mule” — is often more reliable for hauling than draft horses. (A hinney, which has less commercial value, is produced from a female donkey [jenny] and a stallion.)

Not only is it prohibited to crossbreed a horse with a donkey, it is even forbidden to mate a mule or hinney with either a donkey or horse (Mishnah, Kilayim 1:6). In fact, it is rare that such an attempt will produce offspring, although it is claimed anecdotally that there are occasions in which a mule or hinney is fertile and reproduces.

Other crossbred animals

Artificial insemination has been used to crossbreed all sorts of species. Camels and llamas have been crossbred with the goal of producing a larger quantity of quality llama wool. Mankind has created such interesting creatures as ligers (crossbreeds of male lions and tigresses), tiglons (sometimes called tigons, from male tigers and lionesses), leopons (male leopards and lionesses), wholpins (whales and dolphins) and geeps (goats and sheep). Most of these have resulted in limited, if any, commercial value, although individuals unconcerned about the halachic ramifications thought that offspring of such crossbreeding might provide an economic advantage. Crossbreeding animal species is one of the prohibitions of the Torah, when it declares behemtecha lo sarbia kilayim (Vayikra 19:19).

Great auks

At this point, let us discuss the second of our opening questions: “Is it permitted to crossbreed auks and ducks?”

Although both varieties of birds spend much time in and over water, I presume that there would be a kilayim prohibition involved in attempting to crossbreed them. There is an additional problem in attempting to crossbreed great auks with ducks, since great auks have been assumed extinct for well over a century.

Pulling your weight

A similar question would be whether a circus show could use species of different animals to haul together. We know that the Torah prohibited this when it wrote lo sacharosh beshor vachamor yachdav, Do not plow with an ox and a donkey together. The juxtaposition of this mitzvah between other kilayim prohibitions implies that this is an extension of the laws of kilayim.

Some rishonim explain that the prohibition of having two different species haul a load together is a type of min haTorah gezeirah to avoid housing them together at night, which (they contend) would be prohibited as crossbreeding animals. We do find other instances of Torah prohibitions whose purpose is to prevent a more serious violation of the Torah. The classic example of this is the prohibition of bal yematzei, owning chometz on Pesach, which the Torah itself states is to avoid violating the more serious prohibition of eating chometz on Pesach (Shemos 12:19). A similar idea is yichud, which the Gemara (Kiddushin 80b) implies is a Torah violation, whose purpose is to discourage the more serious violation of arayos.

Unfair labor practices?

Notwithstanding that the Torah and the Mishnah both imply that the prohibition of lo sacharosh is because of kilayim, many early authorities explain this law because of other reasons. The ibn Ezra  explains that this is prohibited because, although a donkey is an excellent work animal, it is not “strong as an ox.” In other words, the “reason” for this mitzvah is to teach us to be concerned not to overburden the donkey.

I want to show a reverse case. During a tour I once took of a reconstructed nineteenth-century farm, the plow was being pulled by a draft horse together with a mule. The curators explained to me that they own both horses and mules, and teaming up to work together depends on the animal’s temperament, not necessarily its species. They can sometimes successfully team together a particular mule and a particular horse, and sometimes two horses or two mules will not pull their weight together. Apparently, in the animal world, your coworker is as important a factor in job satisfaction as it is in the human world.

However, from a halachic perspective, there are several unusual factors here. For one, mules are the offspring of male donkeys and mares (female horses). The halacha is that teaming a mule and a horse is prohibited min haTorah because they are different species, notwithstanding that their size and strength may be functionally equivalent. In other words, the reason that the ibn Ezra presents for the prohibition of lo sacharosh does not fit the halacha. Furthermore, the mitzvah of lo sacharosh permits matching a large mature draft horse with an undersized pony colt, notwithstanding that the young and small pony will have a very difficult time pulling its weight alongside its powerful coworker.

Nevertheless, we could still accept the ibn Ezra’s approach to analyzing the “reason” for this mitzvah. As noted by the Sefer Hachinuch, we can never, and should never, claim to understand the “reason” for a mitzvah. Why Hashem commanded us to perform a specific mitzvah is not something for us to try to prove or to rationalize. Unfortunately, such rationalizing has often led to individuals not complying with mitzvos. We know that this error was perpetrated even by the greatest of the great – for example, by Shelomo Hamelech when he accrued more wealth and wives than the Torah permits. The Sefer Hachinuch explains that taamei hamitzvah does not mean “reasons” for mitzvos, but that the word taam should be translated here as “taste,” meaning that these are ideas, messages, or tastes that we can apply to ourselves as lessons when we observe or study these mitzvos. The Rambam also agrees that “reasons” or “tastes” of mitzvos do not always reflect the halachic reality. (Those who oppose this approach to taamei hamitzvah rally around Rav Hirsch, who usually espouses reasons for mitzvos only after a highly detailed analysis of all its laws, and suggests taamei hamitzvah only when they fit the halachic details of the mitzvah.)

Graft

At this point, I am returning to the last question that I asked: “Where does the Torah prohibit grafting trees?” If we look carefully at the pesukim of kilayim prohibitions, quoted above, we will note that nowhere does the Torah explicitly prohibit the grafting of one species of fruit tree onto another, which is called in Hebrew harkavah. If, indeed, this prohibition is not mentioned in the Torah, how do we know that it is prohibited?

By means of a complicated homiletic derivation, based on the first words of the pasuk, Observe my laws, the Gemara  (Kiddushin 39a; Sanhedrin 60a) derives that harkavah, grafting a fruit tree onto a different species, is prohibited min haTorah. The Rambam (Hilchos Kilayim 1:5) concludes that it is included under the lo saaseh of sadecha lo sizra kilayim, the prohibition of planting different species of grains together.

Crossbreeding of plants

Crossbreeding of plants, or, as it is usually called, cross-fertilization or cross-pollination, is when one pollinates the flower of one species with pollen from a different species to produce offspring with some characteristics of each. Many fruits have been developed this way, although I want to share that a nectarine is not a crossbreed of a peach and a plum, as is often mistakenly thought. A nectarine is an ancient variety of peach (Prunus persica) that has a smooth skin. Botanists consider it to be the same species as peach. In their opinion, the difference between nectarines and peaches is the difference between two people who have different complexions or perhaps variant orientations of skin pigment, and certainly not a halachic consideration. I am unaware of anyone who has attempted to study this as a halachic issue. The practical difference is whether it is permitted to graft a nectarine scion onto a peach stalk or vice versa.

What is interesting is that, in the discussions about kilayim in the Torah, the Mishnah and the writings of Chazal, nowhere does it say that it is prohibited to cross-pollinate from one plant species to another. This does not mean to say that there is no prohibition of kilayim germane to trees or plants. Quite the contrary, there are three such prohibitions min haTorah. They are referred to as kil’ei zera’im (kilayim in plants), kil’ei hakerem (kilayim in vineyards), and harkavas ilan (kilayim in trees). But, as we will soon see, none of these three prohibitions has to do with crossbreeding.

The prohibition applies to herbaceous, as opposed to woody plants, meaning that it does not apply to trees and shrubs, but it does apply to vegetables and many herbs. Thus, one may plant seeds of different trees together, yet one is forbidden to plant a mix of vegetable seeds (Rambam, Hilchos Kilayim 1:6).

Kil’ei zera’im

Kil’ei zera’im is planting two or more different species of grains, vegetables or other edible herbaceous plants in close proximity. Exactly what defines “close proximity” is a very complicated halachic topic, and depends on factors such as the shape and size of the vegetable patch, and what variety of produce one is planting. We should note that from a botanical point of view, planting two species in close proximity will not cause hybridization because it does not affect the genetic makeup of the species.

The mitzvah of kil’ei zera’im applies only in Eretz Yisrael. Thus, someone in chutz la’aretz may plant his backyard garden with a wide variety of vegetables without any halachic concern, whereas in Eretz Yisrael someone planting a garden patch must be very careful to keep the different species separate.

Kilayim in a vineyard, kil’ei hakerem

Kil’ei hakerem is the prohibition against planting grains or vegetables in or near a vineyard. Again, this forbidden planting will not affect the genetic makeup of any of the plants involved. It is also quite clear that this was not the concern in halacha, as we see from many of the halachic details. For example: although it is prohibited to plant grains or vegetables near a vineyard, it is permitted to separate the vegetable patch from the vineyard by placing a halachic wall between them. For this, two poles and a wire at the top, a tzuras hapesach, between the vegetable patch and the vineyard suffices (Eruvin 11a), similar to what we do when we construct an eruv to permit carrying on Shabbos.

It is quite clear that, botanically, the tzuras hapesach does not prevent the mingling of the species. Yet, with the tzuras hapesach, it is permitted to plant the grain and, without it, there is a Torah prohibition to do so! This certainly cannot be explained on a scientific basis.

Conclusion

Observing and studying the laws of kilayim reminds us how all of Hashem’s creation always follows His instructions. This reminds the contemplative Jew that, if the plants heed Hashem’s word, how much more must we strive to obey His instructions.




Gifts to the Poor

The Gemara tells us that the Torah reading of Sukkos includes references concerning gifts to the poor, to remind people of these mitzvos during harvest season.

Question #1: Leaving in Today’s World

“Is there a requirement to leave leket, shich’cha and pei’ah in your field today?”

Question #2: In Chutz La’Aretz

“I live in chutz la’aretz. Am I required to separate pei’ah on my backyard vegetable patch?”

Question #3: Cluster Alms

“Why do I need to know how a typical cluster of grapes looks?

Introduction

While harvesting grain and other produce, the Torah presents six different mitzvah opportunities to provide for the poor: leket, shich’cha, pei’ah, peret, oleilos, and maaser ani. I discussed several of these mitzvos in a recent article, but did not complete the topic. This article picks up where that one left off.

In parshas Kedoshim, the Torah mentions the mitzvos of pei’ah, leket, peret and oleilos: When you reap the harvest of your land, do not complete harvesting the corner of your field, and the “leket” of your harvest you should not collect. From your vineyard, do not remove the “oleilos,” and the “peret” of your vineyard you should not collect. Leave them for the poor and the stranger (Vayikra 19:9-10). I deliberately did not translate the words leket, oleilos and peret, since they will be explained shortly.

Shich’cha, peret and oleilos are all discussed at the end of parshas Ki Seitzei (Devarim 24:19-21).

Maaser ani is mentioned in parshas Ki Savo (Devarim 26:12)

Two of these mitzvos, pei’ah and leket, are also discussed in parshas Emor (Vayikra 23:22), in the midst of the Torah’s discussion about the festival cycle (parshas hamo’ados): When cutting the harvest of your land, do not complete the reaping of the corner of your field while you are harvesting, and the “leket” of your harvest you should not collect. Leave them for the poor and the stranger. This pasuk is the one included in our Sukkos reading.

Several halachos are quite clear from these pesukim, even without any commentary. The mitzvah is to leave behind these four items: pei’ah, leket, oleilos and peret, and allow the impoverished to help themselves. This implies that the owner may not choose or favor one pauper over another in the distribution of these gifts, and that neither he, nor anyone else, is even permitted to assist one poor person over another. To quote the Mishnah: He who does not allow the poor to collect, or allows one of them to collect but not another, or helps one of them, is stealing from the poor (Pei’ah 5:6).

Shich’cha

The mitzvah of shich’cha is discussed only at the end of parshas Ki Seitzei (Devarim 24:19): When you reap your harvest in your field, and you forget a sheaf in the field, you may not return to get it; it shall be for the stranger, the orphan and the widow, so that Hashem, your G-d, will bless you in all your undertakings. Shich’cha is different from the other four mitzvos we have previously mentioned in one significant way – it applies to produce only as it is brought in from the field, and not any earlier or later (Pei’ah 5:8).  Therefore, small bundles that were forgotten in the field, but where the intention, initially, was to combine them into larger bundles before bringing them in from the field, are not shich’cha (Pei’ah 5:8). This is different from the mitzvos of pei’ah, leket, peret and oleilos, which apply only at the time of the reaping, when the produce is being cut from the earth.

Shich’cha applies only when the owner or his workers forgot one or two bundles (Pei’ah 6:5). If they forgot three or more bundles, the law of shich’cha does not apply – the poor may not take it, and the owner may retrieve it.

Shich’cha applies only if we can assume that the sheaf or sheaves left behind are likely to be completely forgotten.  However, it does not apply if the owner or his worker will remember later that the bundle was left behind, for any of a variety of reasons, such as, it was left in a place that he will remember where it was, or it was much larger than the rest of his sheaves (Rambam, Hilchos Matanos Aniyim 5:17). Another example is when they forgot to harvest from a certain tree, but they will later remember about the tree because it is distinctive, either because it has its own nickname, or it is unusual in some other way or in its location (Pei’ah 7:1-2).

Shich’cha applies also to grapes, as well as to olives and the fruit of other trees (Pei’ah 6:9; 7:1).

What is leket?

To quote the Mishnah: What is leket? That which falls at the time of the cutting… If it is within [the reaper’s] hand or his sickle, it qualifies as leket and belongs to the poor. If it is beyond his hand or his sickle, it belongs to the owner and does not qualify as leket (Pei’ah 4:10). In other words, stalks of grain that were cut by swinging a sickle, but were beyond the hand or the sickle of the harvester, do not qualify as leket, because they were not severed from the ground in the way that grain is usually cut (Bartenura).

Three and over

The law of leket applies only when the reaper dropped one or two stalks at a time, but if he dropped three or more stalks, he may pick up the stalks and add them to his harvest, and the poor people are not permitted to take them (Pei’ah 6:5).

Piled on top of the leket

What is the halacha if the owner of the field or his employees collected the produce of his own harvest and then piled it in an area of the field where the poor people had not yet collected the leket. In this instance, we will no longer be able to ascertain how much leket grain in the field rightfully belongs to the poor, because the reapers’ pile creates a mixture of leket grain that belongs to the poor and non-leket grain that belongs to the owner.

To discourage this from happening, Chazal instituted that the entire bottom layer of the grain pile is considered the property of the poor (Pei’ah 5:1), even when it is impossible that so much grain fell as leket. This ruling is a penalty leveled upon the owner, to make sure that he does not allow such a practice. He should make sure that his workers pile their produce in an area that does not contain any leket.

What are peret and oleilos?

We have not yet explained the other two mitzvos that are taught in the pasuk that I quoted above, peret and oleilos. These two gifts to the poor exist only regarding grapes.

Peret is to a vineyard what leket is to grain. In other words, while picking the grapes, should a single grape or two fall from the hand of the harvester, they must be left for the poor (Pei’ah 6:5; 7:3). However, just as we explained before that three stalks of grain falling together while cutting are not leket, three of more grapes falling at one time are not peret and may be retrieved by the owner.

Oleilos

Oleilos are grapes that did not grow as part of a proper cluster. Ordinarily, a cluster of grapes includes many small bunches that grow off the main stem near the top of the cluster; when the grapes lie upon one another, they create a bulge, appearing a bit like a “shoulder,” near the top of the cluster. In addition, the central stem of typical cluster grows longer than the small bunches that branch off it, which causes some grapes to hang down at the bottom of the cluster. These two features provide a cluster of grapes with its traditional appearance of the widest part near, but not at, the very top, and the bottom being narrowest, where a few grapes hang lower than the rest of the cluster.

Oleilos are when a cluster of grapes grows without a “shoulder” at the top of the cluster and without any grapes of the main stem hanging lower than the rest of the cluster. A bunch of grapes growing without these features may not be harvested by the owner or his workers and is left for the poor (Pei’ah 7:4).

Maaser ani

Regarding maaser ani, the Torah states: When you complete all the tithes of your produce in the third year, the year of the special tithe, make certain to give it to the Levi, the stranger, the orphan and the widow, who will eat it within the gates of your cities and be satisfied (Devarim 26:12).

This pasuk alludes to at least two different tithes, and teaches that the third year has a tithe different from the previous years. In the third year, you must give one maaser, which we call maaser rishon, to the Levi, and a second maaser that is a maaser for the poor (the stranger, the orphan and the widow). This mitzvah, maaser ani, is mentioned also in parshas Re’eih (Devarim 14:28-29).

There is a fundamental difference between maaser ani and the other gifts to the poor. As mentioned above, gifts to the poor are left for them to help themselves. A more agile and industrious poor person can collect a great deal more leket, shich’cha, pei’ah, peret and oleilos than someone who has difficulty getting around. However, the pasuk in parshas Ki Savo states that the owner gives the maaser ani to the poor, meaning that he chooses which poor person will be the lucky recipient.

Answering questions

At this point, we have enough background that we can discuss one of our opening questions.  “I live in chutz la’aretz. Am I required to separate pei’ah on my backyard vegetable patch?” In other words, do any of these mitzvos of matanos la’aniyim apply outside Eretz Yisrael?

Matanos aniyim in chutz la’aretz

Although these mitzvos are halachically categorized as mitzvos hateluyos ba’aretz, agricultural mitzvos, and the general rule is that these mitzvos apply only in Eretz Yisrael (Mishnah Kiddushin 36b), the Gemara (Chullin 137b) mentions that the mitzvah of pei’ah applies in chutz la’aretz as a rabbinic injunction, and the Rambam explains that this includes all matanos aniyim (Hilchos Matanos Aniyim 1:14). We find this applies to several other of the mitzvos hateluyos ba’aretz, including challah, chodosh, terumos and maasros (because of space constraints, the details and definition of these different mitzvos will be discussed in other articles).

Regarding where in chutz la’aretz these mitzvos hateluyos ba’aretz are applied miderabbanan, there are two different sets of rules:

In the case of challah, the mitzvah applies anywhere in chutz la’aretz. Wherever you live, you are obligated to separate challah from a large enough dough.

Regarding terumos and maasros, the requirement to separate them applies only in lands near Eretz YisraelMitzrayim, Amon, and Moav – corresponding to parts of contemporary Egypt, Jordan and the Sinai and Negev deserts. There is no requirement to separate terumos and maasros from produce grown in Europe, anywhere else in Africa, the vast majority of Asia, and certainly not from produce grown in the Americas or Australia.

The question at hand is whether the matanos aniyim have the same halacha that applies to terumos and maasros, and therefore they apply only in lands near Eretz Yisrael, or whether they are treated like challah and apply everywhere. Most authorities conclude that the obligation of matanos aniyim applies only in places near Eretz Yisrael.

At this point, let us focus on the first question that we posed: “Is there a requirement to leave leket, shich’cha and pei’ah in your field today?”

Answering this question correctly requires that we explain another principle. In the earlier article, I mentioned the Mishnah that states that if all of the poor people in a certain place want the pei’ah to be divided evenly among them, rather than being available for each to forage as he best can, the pei’ah is divided evenly among the local poor. We can ask a question: Granted that the local poor people all agree to divide the matanos aniyim equally, however, these gifts do not belong only to them. All poor people, no matter where they live, are entitled to these matanos. If so, how can the people here decide how to divide their local matanos aniyim, without taking into consideration the rights of poor people elsewhere, who are also potential owners of the matanos aniyim?

The answer is that the poor people who are outside this locale have clearly been me’ya’eish, implicitly given up their legal right to the local matanos aniyim (see Bava Metzia 21b). The poskim conclude that in any situation in which the owner can assume that the poor will not come to collect the matanos aniyim that are left in the field, he is permitted to collect and keep them (Derech Emunah, Hilchos Matanos Aniyim 1:62). Therefore, in today’s world where poor people are not traveling to fields to collect their matanos, there is no obligation to leave leket, shich’cha, pei’ah, peret and oleilos.

Conclusion

In our discussion of the mitzvah of shich’cha, we quoted the pasuk that states that someone who observes this mitzvah will have all his undertakings blessed by Hashem. Rashi (Vayikra 5:17) notes the extent of this blessing. After all, the person forgot only one sheaf, yet Hashem blesses all his undertakings. As Rashi expresses it: We see from here that if someone dropped a coin, and a poor person found it and supports himself with it, Hashem provides the loser of the coin with a beracha.




Gifts to the Poor

Question #1: Living in Chutz la’aretz

“I live in chutz la’aretz. Am I required to leave peah in my backyard vegetable patch?”

Question #2: Leaving in Today’s World

“Is there a requirement to leave leket, shich’cha and peah in your field today?”

Question #3: Cluster Alms

“Why is it important to know how a typical cluster of grapes looks?”

Introduction

While harvesting grain and other produce, the Torah presents six different mitzvah opportunities to provide for the poor: leket, shich’cha, peah, peret, oleilos, and maaser ani. These mitzvos, as well as many of the basic laws of the mitzvah of tzedakah, are discussed in the second mesechta of seder Zera’im, mesechta Peah, and in the commentaries thereon, including the Talmud Yerushalmi. As is the case with all the mitzvos hateluyos ba’aretz, the agricultural mitzvos of the Torah, there is no Talmud Bavli on Peah, although many of its topics are discussed, sometimes in great detail, in scattered places.

This article will provide a basic understanding of some of these six mitzvos and cover a few select details. In so doing, we will answer some of the questions asked above and leave the others for a future article.

Let us begin by quoting the pesukim that introduce these mitzvos. In parshas Kedoshim, the Torah mentions the mitzvos of peah, leket, peret and oleilos: When you reap the harvest of your land, do not complete harvesting the corner of your field, and the “leket” of your harvest you should not collect. From your vineyard, do not remove the “oleilos,” and the “peret” of your vineyard you should not collect. Leave them for the poor and the stranger (Vayikra 19:9-10).

I deliberately did not translate the words leket, oleilos and peret, since I will explain what these technical terms mean. Two of these mitzvos, peah and leket, are repeated in parshas Emor (Vayikra 23:22), in the midst of the Torah’s discussion about the festival cycle (parshas hamo’ados): When cutting the harvest of your land, do not complete the reaping of the corner of your field while you are harvesting, and the “leket” of your harvest you should not collect. Leave them for the poor and the stranger. In addition, the two mitzvos of peret and oleilos are again discussed at the end of parshas Ki Seitzei (Devorim 24:21), immediately following the Torah’s instructing the mitzvah of shich’cha. (We will quote the sources for the mitzvos of shich’cha and matanos aniyim later in this article.)

Several halachos are quite clear from these pesukim, even without any commentary. The mitzvah is to leave behind these four items: peah, leket, oleilos and peret and allow the impoverished to help themselves. This implies that the owner may not choose or favor one pauper over another in the distribution of these gifts, and that neither he, nor anyone else, is even permitted to assist one poor person over another. To quote the Mishnah: He who does not allow the poor to collect, or allows one of them to collect but not another, or helps one of them is stealing from the poor (Peah 5:6). This law applies equally to anyone, not only the field owner, who assists one poor person over another (see Peah 4:9).

Corner

At this point, we will explain the basics of the mitzvah of peah. The requirement of peah is to set aside a portion of your field that you do not harvest. There is no minimal requirement min haTorah regarding how large a section of the field must be designated as peah. In other words, the Torah’s mitzvah is fulfilled if someone sets aside only one stalk of grain. To quote the Mishnah: These items have no measured requirement: Peah, bikkurim, appearing in the Beis Hamikdosh on the festivals, performing kind deeds and studying Torah (Peah 1:1). This Mishnah is the basis for a halachic passage that we say every morning after we recite birkas haTorah, but what we say daily has other parts added to it from other statements of Chazal.

Why does the Mishnah mention only these five mitzvos? Are there no other mitzvos that have no “minimum amount” required in order to fulfill them?

Indeed, these are the only five mitzvos that fulfill the statement that they have no measured requirement, because min haTorah, these mitzvos have no minimum and also no maximum, whereas all other mitzvos have either a minimum or a maximum, min haTorah. The commentaries on this Mishnah raise questions about several other mitzvos that seemingly should be included in this list, making it more than five, and explain why each of these other mitzvos is not mentioned (Rash; Tosafos Yom Tov; Mishnah Rishonah).

Not all produce

Returning to the laws of peah, not everything that is grown must have peah separated from it. The Mishnah notes that only produce that has five specific characteristics is included in the mitzvah of peah. To quote the Mishnah: They (the earlier authorities) stated a rule regarding peah. Anything that (1) is food, (2) is guarded, (3) is nourished from the ground, (4) is reaped at one time, and (5) is brought in for long-term storage is obligated in peah. Grain and legumes are always assumed to be included (Peah 1:4).

In other words, the following categories of produce are exempt from peah:

(1) Products grown for feed or for dyestuffs (such as woad or indigo).

(2) Produce that is hefker, meaning that it is evident that the owner has no concern if other people take it.

(3) Cultivated mushrooms, truffles, and other fungi, because they do not draw their nourishment from the ground.

(4) Some varieties of produce do not ripen all at once. Instead, they are harvested in stages, as each fruit ripens. These types of products, such as figs, are exempt from the mitzvah of peah.

(5) Many varieties of vegetables and other produce cannot be stored unless they are frozen or canned. Any of these types of produce are exempt from peah. However, items that can be dried or stored as is, such as grain, beans, peas, carobs, nuts, grapes (can be stored either as wine or as raisins), olives (as oil) or dates (dried) are obligated in peah.

How much peah?

Earlier, we quoted the Mishnah that ruled that the Torah requirement of the mitzvah of peah has no minimum size. The Mishnah subsequently teaches that although the Torah did not require a minimum to fulfill this mitzvah, Chazal did, enacting a rule requiring the owner to set aside at least 1/60 of his field as peah. Furthermore, he is required to set aside a larger part than this for peah under some special circumstances, such as, he had a bumper crop, he is exceptionally wealthy, there are a lot of poor or the impoverished are exceptionally needy (Peah 1:2 according to various commentaries).

Corner

Must peah be in a corner of the field?

Notwithstanding that the Torah calls the mitzvah peah, and that, in the context of other mitzvos of the Torah, the word peah means a corner of some type, it is not required to set aside peah in a corner of the field, nor does it necessarily have to be set aside when the harvest is finished. In addition, at the beginning of the harvest, the owner may designate a part of his field as peah. To quote the Mishnah: You can give peah from the beginning of the field or from its middle (Peah 1:3).

Three times a day, the owner must appear at his field to allow the poor to collect what they are entitled (Peah 4:5). The three times of the day are in the morning, at midday and towards the late part of the afternoon. There appears to be a dispute among halachic authorities exactly what this Mishnah is ruling. According to some authorities, the poor may not enter the field unless the owner, or his representative, is there, but the owner is required to be there at these three times, or otherwise appoint a representative in his stead, who will be in the field these three times every harvest day (Rashas; Mishnah Rishonah).

The Rambam appears to understand the Mishnah and the halacha somewhat differently: The poor may not enter the field at any other time, but during these three times they are free to enter, whether or not the owner or his representative are there (Hilchos Matanos Aniyim 2:17). In his opinion, the Mishnah should be understood as follows: “Three times a day the pauper may appear at the field.”

Nobody get hurt!

The halacha is that the poor people reaping the peah may not use sickles or spades to gain access to the leftover produce. Since many poor people are in the field, and they are not coordinating their activities, using a heavy tool could cause someone to get hurt (Peah 4:4).

Exceptional distributions

As noted above, peah and the other matanos aniyim that we have so far discussed should be left for the poor to take for themselves. However, there are exceptions:

(1) Something that is dangerous for the poor to harvest themselves. The Mishnah (Peah 4:1) chooses two examples of fruit — dates and grapes growing on trellises — where it might be dangerous for the poor to harvest the peah themselves (Rosh, Rav and Rashas ad loc.). Dates grow only on the new growth of a date palm. Since the dates will be only on the top of the tree and a palm tree can grow quite tall, it could certainly endanger the poor people, should they have to harvest the dates themselves.

Similarly, grapes grow on vines which are basically runners, rather than strong trees. To maximize the quantity and quality of their crop, it is common that vinedressers (people who cultivate grapevines) construct wooden frames called trellises, looking something like a jungle gym, and train the grape vines, which are very easy to educate, to grow on these trellises. However, it is not safe to allow the poor people to come collecting the peret grapes by themselves from trellises. Numerous poor people may attempt simultaneously to collect the grapes left on a trellis, and a trellis may not be strong enough to hold their collective weight.

To avoid people endangering themselves, in these instances the harvester cuts down the peah fruit and distributes what is there evenly among the poor who have assembled (Peah 4:1).

(2) A second case where the owner should harvest and distribute the produce is when all of the poor people who have arrived at the field want it divided evenly (Peah 4:2).

Maaser ani

Maaser ani is mentioned in parshas Ki Savo, where the Torah states: When you complete the tithing of all the tithes of your produce in the third year, the year of the special tithe, then you shall make certain to give it to the Levi, the stranger, to the orphan and the widow, and they shall eat it within the gates of your cities and be satisfied (Devorim 26:12).

This posuk talks about creating at least two different tithes, and mentions that the third year has a special tithe that the earlier years do not have. In the third year, you must then give one maaser to the Levi, which we call maaser rishon, and a second maaser to the stranger, orphan or widow, which is clearly meant to be a maaser for the poor. This mitzvah of maaser ani is also mentioned in an indirect way, in parshas Re’eih (Devorim 14:28-29).

Thus, there is a fundamental difference between maaser ani and the other gifts to the poor in that, in general, the others are left for the poor people to help themselves. In other words, a poor person who is more agile and willing to work hard can collect a great deal more leket, shich’cha, peah, peret and oleilos then someone who has difficulty getting around. However, the posuk in parshas Ki Savo states that the owner gives the maaser ani to the poor. This implies that he can choose which poor person he wants to provide. In general, it is his to distribute to the poor, as he chooses.

Answering questions

At this point, we have enough background to the general laws of these mitzvos that we can return to of our opening questions.  The first question was: “I live in chutz la’aretz. Am I required to separate peah on my backyard vegetable patch?”

In other words, do any of these mitzvos of matanos la’aniyim apply outside Eretz Yisroel?

Matanos aniyim in chutz la’aretz

Although these mitzvos are halachically categorized as mitzvos hateluyos ba’aretz, agricultural mitzvos, and the general rule is that these mitzvos apply only in Eretz Yisroel (Mishnah Kiddushin 36b), the Gemara (Chullin 137b) mentions that the mitzvah of peah applies in chutz la’aretz as a rabbinic injunction, and the Rambam explains that this includes all matanos aniyim (Hilchos Matanos Aniyim 1:14). We find this applies to several other of the mitzvos hateluyos ba’aretz, including challah, chodosh, terumos and maasros (because of space constraints, the details and definition of these different mitzvos will be left for other articles).

However, this does not yet resolve our question; regarding rabbinic injunctions germane to mitzvos hateluyos ba’aretz that are extended to chutz la’aretz, we find two different sets of rules:

In the case of challah, the mitzvah is applied to anywhere in chutz la’aretz. This is why, no matter where you live, you are obligated to separate challah from a large enough dough.

On the other hand, in the case of terumos and maasros, the requirement to separate them in chutz la’aretz applies only in lands near Eretz Yisroel, such as Mitzrayim, Amon, and Moav – today corresponding to parts of Egypt, Jordan and the Sinai and Negev deserts. There is no requirement to separate terumos and maasros from produce grown in Europe, anywhere else in Africa, the vast majority of Asia, and certainly not from produce grown in the Americas or Australia. (Which rule applies to chodosh is a topic for a different time.)

The question at hand is whether the matanos aniyim have the same halacha that applies to terumos and maasros, and therefore they apply only in lands near Eretz Yisroel, or whether they are treated like challah and apply everywhere. Most authorities conclude that the obligation of matanos aniyim applies only in places near Eretz Yisroel.

At this point, let us focus on the other question that we posed: “Is there a requirement to leave leket, shich’cha and peah in your field, today?”

Answering this question correctly requires that we explain another principle. Above I mentioned the Mishnah that states that if all of the poor people in a certain place want the peah to be divided evenly among them, rather than being available for each to forage as best he can, indeed the peah is divided evenly among the local poor. We can ask a question: Granted that the local poor people all agree to divide the matanos aniyim equally, however, these gifts do not belong only to them. All poor people, no matter where they live, are entitled to these matanos. If so, how can the locals decide to divide among themselves the matanos aniyim without taking into consideration the rights of those elsewhere, who are also potential owners of the matanos aniyim?

The answer is that the poor people who are not here have clearly been me’ya’eish, implicitly given up their legal right to the matanos aniyim that are here (see Bava Metzia 21b). The poskim conclude that any situation in which the owner can assume that the poor will not come to collect the matanos aniyim that are left in the field, he is permitted to collect them (Derech Emunah, Hilchos Matanos Aniyim 1:62).

Conclusion

In the days of King Munbaz there was a drought, and he distributed the entire royal treasury, accumulated over several generations, to the poor. His family members protested, saying that his predecessors had all increased the wealth of the monarchy, and Munbaz was disbursing it. Munbaz responded, “My ancestors stored below, and I stored above. They stored their wealth in a place where it could be stolen, and I stored in a place from where it cannot be stolen. They stored items that do not produce profits and I stored items that do. They stored money, and I stored lives. They stored for others, and I stored for myself” (Bava Basra 11a).




Planting Kil’ayim

Question #1: Spelt

I understand that spelt is a type of wheat. May I plant a small patch of it next to my wheat field?

Question #2: Trees and Ornamentals

I purchased a property in Israel that has grapes and other trees and ornamentals growing on it. What do I do to avoid violating the prohibition of kil’ayim?

Question #3: Tomatoes

May I plant various types of tomatoes next to one another?

Foreword:

In parshas Ki Seitzei, the Torah teaches the mitzvah not to plant your vineyard with kil’ayim (Devarim 22:9), after which the Torah mentions two other kil’ayim prohibitions: doing work with different animal species together and wearing shatnez. In parshas Kedoshim, the Torah introduces several mitzvos called kil’ayim when it says, “You shall keep my laws. You shall not breed your animals as kil’ayim, you shall not plant your field as kil’ayim and you shall not wear kil’ayim shatnez garments” (Vayikra 19:19).

I have written many times about the prohibitions of wearing shatnez, grafting one tree min (species) onto another and crossbreeding animals, but I have never written an article devoted to this week’s topic — the kil’ayim prohibitions in a vineyard and in a field. Please note that this article is only a general introduction to these mitzvos and not halacha le’maaseh — the topics are far more complex than can be covered in one article. For this reason, the opening questions in this article are going to be left unanswered.

Kil’ei hakerem

Kil’ei hakerem is the prohibition of planting an herbaceous (meaning non-woody, i.e.  – a plant other than a trees or a shrub), cultivated plant in a vineyard or adjacent to a grapevine. This mitzvah applies min haTorah in Eretz Yisrael and as a rabbinic prohibition in chutz la’aretz (Orlah 3:9; Kiddushin 39a). It also includes planting above or below grapes, such as, if the vine is trained onto a trellis or other framework.

Kil’ei hakerem is the only instance in which the Torah prohibits using what grows in violation of the kil’ayim prohibition. Other kil’ayim mitzvos prohibit only the act, but what grows or develops as a result may be used. (The Yerushalmi, Kil’ayim 1:4, permits using even the cutting developed from a forbidden graft.)

There is a major dispute among tana’im and rishonim whether kil’ei hakerem applies even when planting one species other than grapes in a vineyard, or only when two species other than the grapes are planted in a vineyard. Rav Yoshiyah rules that the lo sa’aseh of kil’ei hakerem applies only when planting both wheat and barley (or any two other species that are kil’ayim with one another) in a vineyard. Since the Torah says, “You shall not plant kil’ayim in your vineyard,” Rav Yoshiyah understands this to mean that someone is planting two varieties that are kil’ayim with each other, in a vineyard, which compounds the prohibition.

Vineyard vs. vines

There are major halachic differences between a few grapevines and what is halachically called a vineyard. The most prominent difference is that it is prohibited to plant any type of grain or most vegetables within four amos (about seven feet) of a vineyard, whereas it is forbidden to plant only within six tefachim, which is less than two feet, of a grapevine that is not part of a vineyard.

What is a vineyard?

So, what is a vineyard?

The halacha is that a vineyard must have at least five grapevines growing, four of which are positioned in a rectangle or square. Exactly how the fifth vine is planted is unclear from the Mishnah (Kil’ayim 4:6), and is disputed by the halachic authorities. The Chazon Ish rules that a vineyard requires that the fifth vine continues in a straight line from two of the other vines. In other words, the minimum definition of a vineyard is two parallel grape plantings, one of at least three plantings and the other of at least two.

Others contend that the fifth vine can also be similar to the way one would envision, from a bird’s eye view, the location of the tail relative to the four legs of an animal standing in rapt attention. The four legs form a rectangle, and the tail is alongside the rectangle, but opposite the middle of a side rather than the continuation of one of its sides (Rambam, Peirush Mishnayos, Kil’ayim 4:6; Tosafos Yom Tov; cf., however, Rambam, Hilchos Kil’ayim 7:7).

If five vines have been planted this way, and alongside them many more vines were planted haphazardly, the disorganized vines might not be considered a vineyard, but individual vines. The practical difference is whether vegetables and grains may be planted nearby, as long as they are more than six tefachim from the vines, or whether the laws of a vineyard apply, which requires a much more substantive distance of four amos. In both instances, construction of a tzuras hapesach or other mechitzah will allow planting the vegetables or grains alongside the vines, as long as the mechitzah separates between the vines and the vegetables or grains.

One row of grapevines is not considered a vineyard, even if it contains hundreds of plantings (Kil’ayim 4:5). This means that one may plant vegetables or grains alongside the grapes, as long as there is a six tefachim distance between them.

Kil’ei hakerem in chutz la’aretz

The rules of kil-ei hakerem in Eretz Yisrael are stricter than they are in chutz la’aretz. In chutz la’aretz, there is a rule, kol hameikil ba’aretz, halacha kemoso bechutz la’aretz. For our purposes, this rule means that since the law of kil’ei hakerem in chutz la’aretz is only miderabbanan, Chazal ruled that whenever a recognized scholar ruled that a particular situation is not considered kil’ayim in Eretz Yisrael, even when the halachic conclusion rules against him, one may follow this minority position in chutz la’aretz. For example, since Rav Yoshiyah rules that kil’ei hakerem is prohibited only when planting two species (that are already prohibited together) in a vineyard, this is the only act of kil’ei hakerem prohibited in chutz la’aretz. However, in Eretz Yisrael, there is concern over planting even a single type of vegetable in a vineyard.

Kil’ei zera’im

Kil’ei hasadeh or kil’ei zera’im (two ways of referring to the same prohibition) is planting two non-woody (also called “herbaceous”) commonly cultivated plants or seeds near one another, planting one species very close to another, already-planted species, or planting the seeds of one species on top or inside a specimen of another species. This mitzvah applies only in Eretz Yisrael. In chutz la’aretz, it is permitted to plant two herbaceous plants next to one another, although some authorities prohibit planting the seed of one species on top of or inside another in chutz la’aretz (Rambam, Hilchos Kil’ayim 1:5; Tosafos Chullin 60a s.v. Hirkiv). Therefore, in Eretz Yisrael, someone planting a garden patch must be very careful to keep the different species separate.

Both prohibitions, kil’ei hakerem and kil’ei zera’im exist, even if the species are not intentionally planted together, but grew on their own (Kil’ayim 2:5). In this instance, if the two species are too close together, one either must pull out one, or, as we will see shortly, build a mechitzah between them.

Introductions

Several important introductions will facilitate understanding the laws of these mitzvos.

A. Firstly, many assume that kil’ayim prohibits hybridization or crossbreeding (two ways of saying the same thing) of unlike species, or, in simpler terms, attempting to mix genetic material and create new species. However, this approach is inaccurate, since only one of the many kil’ayim prohibitions, crossbreeding animals, attempts to create something that does not occur in nature. All the other mitzvos ban the appearance of mixing two species. This distinction is very important in understanding many of the laws of kil’ayim.

B. Secondly, for clarity’s sake, I will use the word “species” in this article to mean items that halacha prohibits “mixing.” The dictionary definition of the word “species” is “a pool of individuals that breed together and will not breed with other individuals.” However, neither halacha nor science uses this definition. Since this article is a halachic talk about kil’ayim, I will discuss only aspects of the halachic definition germane to these mitzvos.

What defines a halachic species? Although there is a great degree of uncertainty about this, certain principles can be derived from the various passages, particularly of the Talmud Yerushalmi Kil’ayim.

(1) Two varieties that naturally cross-pollinate are halachically considered one species (see Yerushalmi Kil’ayim 1:2).

(2) At times, similarity of leaves or appearance or taste of the fruit are sufficient evidence to consider two varieties as members of the same species (Yerushalmi Kil’ayim 1:5). Small differences are never considered significant (Bava Kama 55a). Thus, different varieties, one of which grows wild and the other of which is cultivated, are usually one species (Mishnah Kil’ayim 1:2). Frequently, the rules are difficult to define and, therefore, most authorities recommend not growing two similar varieties of squash or beans together.

C. It is also important to note that the definition of “species” for the laws of kil’ayim is not the same as it is for the laws of challah. Spelt and wheat are considered different minim for the laws of kil’ayim, notwithstanding that they are the same min for the laws of challah. (This means that dough made of spelt and wheat flour can combine to create enough dough to be obligated to separate challah, notwithstanding that wheat and spelt cannot be planted next to each other.)

Cultivated

D. As I mentioned above, kil’ei zera’im and kil’ei hakerem apply only to species that are cultivated or maintained in your location for food, forage, clothing, dye or other similar purposes. The Mishnah states that the laws of kil’ayim apply to a species called zunin,usually understood to be darnel, a ryegrass that, in earlier generations, was used as bird seed. Planting zunin in a field of barley, rye, oats or spelt violates the prohibition of kil’ei zera’im. (Why it is permitted to plant zunin in a wheat field [Mishnah Kil’ayim 1:1] is a topic that we will leave for a different time.)

Proximity

Planting two crop species together or near one another is prohibited as kil’ayim. How far apart the two species must be depends on several factors, including the layout of the planting and what and how much was planted. In some situations, when growing small amounts of certain vegetables, planting the two species in alternate patterns is sufficient to permit the planting, notwithstanding that the different species grow alongside one another (Kil’ayim 3:1; Shabbos 84b ff.).

Between two grain fields of different species — for example, one growing spelt and the other rye — there needs to be an empty area greater than ten amos squared, approximately twenty feet by twenty feet, between the two fields. On the other hand, between two kinds of vegetables, the requirement is that the separating area be only six tefachim squared, approximately two feet by two feet. And even the size of this requirement is only miderabbanan. Min haTorah there is a dispute among rishonim whether the distance is one tefach squared, or 1.5 tefachim squared (Raavad, Hilchos Kil’ayim). The Chazon Ish (5:1) ruled according to the Rambam, the lenient opinion, that requires only one tefach squared, approximately four inches by four inches.

Mechitzah

Although we usually think of mechitzah as a separation necessary in a shul, the word has significance in several other areas of halacha, and particularly in the laws of kil’ayim. For the purposes of kil’ayim, whenever one wants to plant two species and there is not enough space to allow this, a halachically acceptable separation between the plantings permits the planting (Kil’ayim 2:8; 4:6). The rules here are similar to what is called a mechitzah for other halachos, including permitting carrying on Shabbos, although, for the laws of Shabbos, the entire area must be enclosed by mechitzos on all sides. For the laws of kil’ayim, it suffices that there is a halachic divider separating the plantings from one another. Among the many ways that someone can separate the two areas is by building a wall that is ten tefachim tall (approximately 32-40 inches) or piling rocks to a height of ten tefachim. Another option is a furrow or crevice in the ground, either natural or dug, that is ten tefachim deep.

The Mishnah (Kil’ayim 4:4) notes that lavud, openings that are smaller than three tefachim (about ten inches), does not invalidate a mechitzah, and therefore a fence that is more open than closed, but is ten tefachim tall, is a valid mechitzah for kil’ayim purposes. Similarly, one may build a “wall” with sticks placed either horizontally or vertically every three tefachim, and it is a satisfactory mechitzah.

This means that someone may have a vineyard on one side of a fence, in which the grapes grow alongside the fence, and plant grain or vegetables on the other side of the fence; it is completely permitted, even though the two crops may be growing within inches of one another.

Gaps

Large gaps in the middle of a mechitzah may not invalidate it. The general halachic principle is that an area that is mostly enclosed is considered “walled,” even in its breached areas (Kil’ayim 4:4; Eruvin 5b). For example, a yard enclosed by hedges tall enough to qualify as halachic walls may be considered enclosed, notwithstanding that there are open areas between the hedges, since each side is predominantly enclosed either by the hedges or by the house. This is true as long as the breach is smaller than ten amos,about 17 feet (Kil’ayim 4:4). This means that someone may have a vineyard on one side of the hedges (inedible growths usually do not create prohibited kil’ayim), and grain or vegetables on the other side of the hedges, even though the two crops may be extremely close to one another.

Tzuras hapesach

The Gemara (Eruvin 11a) rules that a tzuras hapesach, which we customarily use to make to enclose an area to permit carrying on Shabbos, may be used to separate two species, so that there is no prohibition of kil’ayim. A tzuras hapesach consists of two vertical side posts and a horizontal “lintel” that, together, vaguely resemble a doorway. Thus, it is permitted to grow a vineyard on one side of the tzuras hapesach and grain or vegetables on the other side.

Weeding

What about weeds? Do weeds present a kil’ayim concern?

As anyone who gardens knows, the definition of a “weed” is whatever the gardener does not want in his garden. Halachically, if the “weed” is from a species that is not maintained in your area, it is not a kil’ayim concern.

Conclusion

Targum Onkelos (Vayikra 19:19 and Devarim 22:9) understands the word kil’ayim to mean “mixture.” However, other commentaries explain the origin of the word from the Hebrew root כלא, the same as the word beis ke’le “prison” (see Bamidbar 11:28). Rav Hirsch (Vayikra 19:19) explains that the root כלא means to hold something back, and that the plural form kil’ayim — similar to yadayim, hands, or raglayim, feet — means a pair. Therefore, the word kil’ayim means to pair together two items that should be kept apart.

Concerning this, Rav Hirsch (Vayikra 19:19) writes, “The Great Lawgiver of the world separates the countless numbers of His creations in all their manifold diversity, and assigns to each one of them a separate purpose and a separate form for its purpose.”

In addition, observing the laws of kil’ayim helps us remember how various species obeyed Hashem’s instructions to remain separate during their creation. This reminds the contemplative Jew that if the plants heeded Hashem’s word during the Creation, how much more are we obligated to obey His instructions!




Specific Species

Question #1: Wolf and Dog

Are wolves and dogs members of the same species?

Question #2: Bactrian and Dromedary

May I haul a wagon with two camels, a Bactrian and a dromedary?

Question #3: Tangelo

Is it permitted to crossbreed tangerine and grapefruit to create a tangelo?

Question #4: Crabapples

May I graft an apple branch onto a crabapple trunk?

Foreword:

At the beginning of parshas Noach, Rashi teaches us that, during the moral chaos that led to the Mabul, even members of the animal kingdom mated outside their species (min), something that no self-respecting and ethical animal would ever do.

At this point, we need to ask what is meant by min, which is usually translated as species. The dictionary definition of the word “species” is a pool of individuals that can breed together and do not breed with other individuals.

However, we will soon see that neither halacha nor science uses this definition. It is important that, when studying the Talmudic, aggadic and halachic topics germane to kil’ayim, we must understand properly the Torah’s meaning of the term “species.”

Crossbreeding

Many halachically knowledgeable people assume that the purpose of the laws of kil’ayim is to prohibit the hybridization or crossbreeding (two ways of saying the same thing) of unlike species, or, in simpler terms, not to attempt creating new biological species or to mix genetic material of different species. However, we will soon demonstrate that this assumption is specious, since it is inconsistent with halachic accuracy for two completely different reasons:

A. Most kil’ayim prohibitions have nothing to do with creating new species.

B. In numerous instances, the laws of kil’ayim permit mingling two varieties that are biologically different species, and there are situations in which the laws of kil’ayim prohibit mingling two varieties that are biologically considered members of the same species.

Types of kil’ayim

First, we will demonstrate that kil’ayim prohibitions rarely have anything to do with creating new species (point A). Mesechta Kil’ayim deals with six different mitzvos involving the intermingling of species:

1. Crossbreeding animal species. This prohibition is called harva’as beheimah, or sometimes simply harva’ah. In this instance, as in most of the cases of kil’ayim, there is no prohibition against using the product created by someone who violated the prohibition. Thus, it is permitted to use a mule, notwithstanding that mating a donkey with a mare to produce a mule violates a lo sa’aseh min haTorah.

2. Using two animal species to haul or work together. This mitzvah is usually called lo sacharosh, as in the words of the Torah: lo sacharosh beshor uvachamor yachdav,“Do not plow with an ox and a donkey together” (Devarim 22:10).

3. Grafting different tree species, harkavas ilan, which prohibits inserting a shoot or scion of one species into the wood stock, or lower trunk, of another species. Note that it is completely permitted to plant different species of trees next to each other (Yerushalmi, Peah 1:4).

4. Planting a non-woody edible plant, such as a vegetable or grain, in a vineyard. (A “non-woody” or “herbaceous” plant is a plant other than a tree or a shrub.) This prohibition is called kil’ei hakerem, and applies min haTorah only in Eretz Yisrael, although it does apply in chutz la’aretz as a rabbinic prohibition. This mitzvah is atypical in that it is the only prohibition of kil’ayim whose product is prohibited to use, min haTorah.

5. Planting two non-woody edible plants near one another. This mitzvah, called kil’ei hasadeh, kil’ayim of the field, applies only in Eretz Yisrael. In chutz la’aretz it is permitted to plant two herbaceous plants next to one another.

6. Wearing shatnez, clothing that includes both wool and linen. The prohibition is limited to wearing such clothing.

The two mitzvos of kil’ei hakerem and kil’ei hasadeh, apply min haTorah only in Eretz Yisrael, whereas the others apply min haTorah both in Eretz Yisrael and in chutz la’aretz.

I stated above that kil’ayim prohibitions usually have little or nothing to do with the creation of new species. Crossbreeding of plants involves pollinating the flower of one species with pollen from a different species. But none of the agricultural mitzvos listed above has anything to do with hybridization.

Let’s take a more careful look at the three agricultural prohibitions: 3, 4, and 5, above. In the cases of herbaceous, or non-woody, plants, kil’ayim is planting two crop species near one another (#5) or planting them inside a vineyard (#4). But planting the seeds of different species in close proximity does not change the DNA of the species or cause any hybridization, nor does it cause anything to grow of a variety different from either parent.

In the case of trees and shrubs, harkavas ilan (#3) means grafting one species onto another. When you graft a branch of one species onto the stock of another, the fruit that grows has the DNA of the scion branch and no DNA material of the species of the stock.

Also note that these three kil’ayim prohibitions are limited to species in which some part of the plant is edible.

Wool and linen

Wearing a garment that contains both wool and linen (#6) does not cause any hybridization. Wool grows on sheep, and linen is the product of a flax plant. Combining the two textiles in a garment does not affect their genetic material.

Lo sacharosh

Although some wish to explain that the prohibition of using two animal species to haul or otherwise be worked together is out of concern that someone will house them together or otherwise cause them to mate (Alshich, Devarim 23), there are many other ways to explain the “reason” for this prohibition (see, for example, Ibn Ezra, Devarim 22:10).

Harva’as Beheimah

The only one of the six kil’ayim prohibitions that involves hybridization is harva’as beheimah. But I presume that my readers agree that it is very strange to provide a reason for six different mitzvos that does not apply to five, or, possibly, not to four of them!

And, although we usually translate the word kil’ayim as “mixture,” some commentaries associate this word with the root כלא, as in the word “prison,” beis ke’le. Rav Hirsch explains the root word ke’le as holding something back, keeping someone incarcerated. The plural form kil’ayim is structurally similar to yadayim, raglayim or kesafayim,and means “a pair.” Thus, the word kil’ayim means pairing together items that should be kept apart (Hirsch Commentary to Vayikra 19:19), a definition that fits all six categories of kil’ayim, but has nothing to do with hybridization.

Dogs and wolves

My second point above (point B) is that there are numerous instances where the laws of kil’ayim permit mingling two kinds that are biologically considered different species, and there are also many instances in which the laws of kil’ayim prohibit mingling two kinds that are biologically considered the same species.

To explain, I will first pick examples in the animal world and then in the plant world. The Mishnah (Kil’ayim 1:6) states that wolves and dogs are kil’ayim together; it is forbidden to crossbreed them or to have them haul a load together. Yet, wolves and dogs breed together freely in the wild. Thus, we see that kil’ayim is not dependent on whether the varieties breed together.

From the Yerushalmi and the halachic authorities it appears that several factors are used to determine whether two varieties are considered different species, including how mankind views them, as the Torah teaches, “Hashem had created… all the animals of the field and the birds of the sky and He brought them to the man to see what he would call them… And the man gave names to all the domesticated animals and the birds of the sky and the animals of the field (Bereishis 2:19-20). This implies that man understood the purpose or uniqueness of each species and how it should be categorized, separately, from all other species.

Scientific dogs

The scientific system for classifying species, developed by Carl Linnaeus in the eighteenth century, names every species by two words: the first, its genus, which is capitalized, and the second, a lower case word for its species. Occasionally, a third word, also lower case, is added to indicate subspecies, which can also be called race, ethnic group, breed, variety or cultivar. (Humans are divided into races and ethnic groups, dogs into breeds, fruits and vegetables into varieties – or cultivars for boutique products.) Linnaeus categorized dogs as Canis familiaris and wolves as Canis lupus,meaning that he considered them two separate species. Today, most scientists categorize domesticated dogs as Canis lupus familiaris, which means that Canis lupus refers to a single species that includes both wolves and dogs, and familiaris is added for any domesticated dog breed.

An interesting comparison can be made with the dingo, a non-domesticated Australian dog. I checked Wikipedia regarding the dingo’s classification, and found the following: “The dingo, Canis familiaris, Canis familiaris dingo, Canis dingo, or Canis lupus dingo, is an ancient lineage of dog found in Australia. Its taxonomic classification is debated, as indicated by the variety of scientific names presently applied in different publications. It is variously considered a form of domestic dog not warranting recognition as a subspecies (Canis familiaris), a subspecies of either dog or wolf (Canis familiaris dingo or Canis lupus dingo), or a full species in its own right (Canis dingo).” I note that Wikipedia assumes that wolves and dogs are considered separate species.

The contemporary scientific world no longer defines a species by its ability to breed together and not to breed with a different species. As contemporary science has reinvented itself in the modern world, including its widespread misconceptions of spontaneous evolution of species and its unproved hypotheses regarding the origin of species, it can no longer use the definitions of breeds as its basis for defining species. This is because it accepts that species eventually mutate naturally into new species, which rejects or modifies the traditional definition of a species breeding within itself. As a result, science is forced to redefine “species” on the basis of similarity of DNA, but this piece of information has as yet not been communicated to the dictionary editors.

Camels

I have just demonstrated where, halachically, something can be considered two different species, notwithstanding that they breed together. I will now pick an example in which halacha considers two varieties to be the same species, notwithstanding that modern science categorizes them as separate species. The Gemara teaches that the one-humped Arabian camel, the dromedary, and the two-humped Bactrian camel (“Persian camel,” in Chazal’s lexicon) are, without question, one species. (By the way, “Bactria” was an area of ancient Persia; thus, Chazal’s method of distinguishing between the two varieties of camel is identical to modern nomenclature.) The Gemara states, rhetorically: “do you consider them different species, simply because one variety has a longer neck?” (Bava Kama 55a). Obviously, minor differences in physical characteristics are insufficient reason to treat two varieties as halachically different species.

Modern science counts three surviving species of camel, and, based on fossil remains, five extinct species. (How can one tell whether two extinct individuals could breed together or not?) The three existent species are Camelus dromedarius, the one-humped Arabian camel; Camelus bactrianus, the two-humped, domesticated variety; and Camelus ferus, the only remaining variety of wild camel, which lives today in desert areas of northwestern China and southwestern Mongolia. Formally, scientists will tell you that Camelus ferus is considered a separate species on the basis of genetic studies. Informally, they may admit that it is categorized as a separate species in order to facilitate research grants. Research money is more readily available to study “species” that are critically endangered than critically endangered “subspecies.”

Spelt wheat

Thus far, I have demonstrated that, in the animal world, halacha’s category “min,” and modern science’s nomenclature “species” do not necessarily coincide. Now, I will show that this is equally true in the plant world. Modern science does not consider wheat to be a species, but to be a genus, a group of related species, Triticum. Linnaeus categorized wheat into five different species, including spring wheat, winter wheat, Einkorn, and spelt as separate species. However, halacha recognizes spelt as one species and the other varieties as different forms of the species, wheat (Kil’ayim 1:1, see Rash and Rambam). Thus, it is permitted to plant different wheats together, or alongside one another, even in Eretz Yisrael, whereas one may not plant wheat and spelt together or alongside one another, without following the rules established for kil’ayim of two different species.

Citrus

Science treats the various citrus fruits as species of the same genus. Thus, esrogim are Citrus medica; grapefruits, Citrus paradise; lemons, Citrus limonia;and tangerines are a varietyof Citrus nobilis called Citrus nobilis deliciosa. Yet, based on his extensive analysis of halachic sources, the Chazon Ish (Kil’ayim 3:7) considers lemons, esrogim, grapefruits and oranges to be the same species as regards the laws of kil’ayim, which would permit grafting a grapefruit tree onto a lemon stock. (However, in a different place, the Chazon Ish is hesitant about this decision and rules against relying on it [Hilchos Kil’ei Ilan 178:9]. His concern in the latter place is the difference in appearance of the various fruits. He also rules that chushchash, a variety of wild orange, and the oranges that we eat and juice are the same min for halachic purposes [Hilchos Kil’ei Ilan 178:11].) The Chazon Ish notes that his discussion is germane only to the prohibition regarding harkavas ilan, meaning that it is permitted to graft an esrog branch onto the stock of a different citrus for the objective of consuming the produce. However, an esrog grown this way will not be kosher to use as one of the four minim on Sukkos. (See Shu’t Rema #117; #126:2; Shu’t Maharam Alshich #110; Levush, Orach Chayim 649:4; Taz and Magen Avraham, Orach Chayim 649; Shu’t Bach #135 et al., all of whom agree that an esrog grafted onto a different species is not kosher for Sukkos use. The Shu’t Panim Me’iros, Volume II #173, and the Saba Kadisha,are among the small minority of authorities who permitted using an esrog grafted onto non-esrog stock for the four minim on Sukkos.) In other words, according to most authorities, an esrog grafted on lemon stock is not kosher for the mitzvah on Sukkos, notwithstanding that the grafter may not have violated any prohibition.

Tangelo

We can now discuss the third of our opening questions: “May I create a tangelo by crossbreeding a tangerine and a grapefruit?” Although the Chazon Ish did not discuss tangerines, it would seem that, according to his comments in Kil’ayim 3:7, this would be permitted, and that, according to his comments to Yoreh Deah, it would not.

Crabapples

At this point, we should examine the last of our opening questions: May I graft an apple branch onto a crabapple trunk?

The regular eating-apple is usually called Malus pumila. There are numerous varieties of crabapples, most of which are also included in the genus Malus and are called names such as Malus coronaria, Malus angustifolia and Malus ioensis. Many of these crabapples freely hybridize in the wild with apple cultivars. Thus, we see again that the dictionary definition of a species is no longer accepted by the scientific community.

What is the halacha of grafting apples onto crabapple stocks?

The Mishnah states that apples are kil’ayim with chazrad, some type of wild apple or other fruit bearing some resemblance to, or characteristics, of an apple. Some rishonim believe that chazrad is a variety of wild apple that produced a fruit that was used as feed, but was not considered suitable for human consumption, even after pickling or stewing. However, we do not really have any idea what species or variety chazrad is.

In early nineteenth-century eastern and central Europe, we suddenly find several major halachic authorities debating whether some variety of crabapple or wild apple could be used as the stock on which to graft edible apple trees. The crabapple fruits were usually not considered edible.

The Torah scholar who addressed this question to the author of Shu’t Mishkenos Yaakov considered grafting apples onto crabapple stocks a problem, quoting the Levushei Serad (Chiddushei Dinim #106, also quoted by Piskei Teshuvah, Yoreh Deah 295:2) that this graft is prohibited as harkavas ilan. The Mishkenos Yaakov (Shu’t Mishkenos Yaakov, Yoreh Deah #69) discusses some of the varieties of crabapple that were commonly used for grafting apples, and permits grafting an apple scion onto the stock of any of the crabapples available in his area. This conclusion is accepted by several other authorities (Beis Efrayim, quoted by the Mishkenos Yaakov; Shu’t Tzemach Tzedek, Yoreh Deah #221; Aruch Hashulchan, Yoreh Deah 295:15). Thus, again, the difference in scientific species identification has nothing to do with the halachicdefinition.

Conclusion

In all six types of kil’ayim mentioned above, the general criterion is to avoid the appearance of different species being intermingled. Concerning this, Rav Hirsch (Vayikra 19:19) writes, “The Great Lawgiver of the world separates the countless numbers of His creations in all their manifold diversity, and assigns to each one of them a separate purpose and a separate form for its purpose.”

In addition, the laws of kil’ayim help us bear in mind how various species obeyed Hashem’s instructions to remain separate during their creation. This reminds the contemplative Jew that if the plants heeded Hashem’s word during the Creation, how much more we are obligated to obey all His instructions.