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Halachic History of Copyright

One of the curses recorded in this week’s parsha is against someone who moves the border. In halachic terms, hasagas gevul, moving borders also includes infringes on someone’s property rights.

Does a publisher have rights protecting him so that he has the opportunity to recoup his investment? Assuming that such rights exist, do they apply in all cases, or only if it is a new publication? For how long are his rights protected?

Does the Torah have a concept of intellectual property rights, meaning that someone who creates or invents an item is owner of his invention?

WHAT RIGHTS DOES THE PUBLISHER HAVE?

One of the earliest published responsa on this subject deals with a very interesting sixteenth century case. One of the gedolei Yisrael of the time, the Maharam of Padua, Italy, entered a partnership with a non-Jewish publisher in Venice to produce a new edition of Rambam. Maharam invested a huge amount of time checking and correcting the text for this edition, included notes of his own, and apparently also invested significant amounts of his own money in the undertaking. A competing publisher, also a non-Jew, produced an edition of Rambam (without Maharam’s corrections and notes) at a greatly reduced price, apparently out of spite that Maharam had engaged his competitor. It appears that the second publisher might have been selling the set of Rambam at a loss with the intent to ruin the Maharam financially. The halachic question was whether an individual may purchase the less expensive edition of the second publisher.

The shaylah was referred to the Rama for decision, who ruled that the second publisher’s actions constitute unfair trade practices. Rama prohibited purchasing or selling the competing edition, until the Maharam’s edition was sold out. Realizing that the non-Jewish publisher would not obey his ruling, Rama reinforced his ruling by placing a cherem (decree of excommunication) on anyone selling, buying or abetting the sale of the competing edition (Shu”t Rama #10). This was an effective way of guaranteeing that Jews did not purchase the less expensive (but inferior) edition.

The Rama’s ruling established a precedent. Subsequent to Rama’s ruling, it became common practice for publishers to include in their works a cherem (plural: charamim) from a well-known posek banning the publishing of the same sefer, usually for a period of six to twenty-five years. As a matter of fact, these charamim were the main reason why publishers sought haskamos when they published seforim. The purpose of the haskamah was that they included charamim, to make it financially worthwhile for the publisher to invest the resources necessary to produce the sefer. Thus, these charamim encouraged publishing more seforim and the spread of Torah learning.

Generally, these charamim protecting the publisher’s rights were accepted and obeyed. However, in the early nineteenth century, an interesting dispute arose between the Chasam Sofer, the Rav of Pressburg, and Rav Mordechai Benet, the Rav of Nikolsburg, germane to the production of the famous Roedelheim machzorim. Two competing editions of these machzorim were produced, the first by Wolf Heidenheim, who had invested much time and money gathering and comparing the texts in old editions and manuscripts. A Jewish publishing house located in a different city subsequently published a competing edition. Prior to Heidenheim’s issuing the machzorim, several prominent rabbonim had issued a cherem banning other publishers from competing.

The Chasam Sofer prohibited the second publisher from selling his machzorim and similarly banned people from purchasing them (Shu”t Chasam Sofer, Choshen Mishpat #41, #79). In his opinion, this case is halachically comparable to the edition of Rambam produced by the Maharam Padua.

Rav Benet disagreed, contending that there were several key differences between the cases. In his opinion, it is unnecessary to guarantee publication of machzorim by issuing charamim. Machzorim are a common item, and publishers know that they will profit from producing them. Thus, the entire purpose for which these charamim were created, to guarantee the production of seforim, does not apply. Furthermore, since non-Jewish publishers will certainly produce machzorim, issuing a cherem against competition will benefit the non-Jewish publishers, who will be faced with less competition, more than it will benefit a Jewish publisher, such as Wolf Heidenheim. In addition, Heidenheim’s first edition had already sold out, and charamim traditionally ended when the edition was sold out, assuming that one edition was sufficient to guarantee a publisher sufficient profit to make it worth his while. In addition, Rav Benet questioned whether the system of charamim was still appropriate, once the government had established its own rules and laws of copyright infringement (Shu”t Parashas Mordechai, Choshen Mishpat #7, 8).

The Chasam Sofer countered that since Heidenheim had invested time and money in checking and correcting texts, his business interest should be protected to a greater degree, and that Heidenheim should qualify under a special halachic dispensation allowed for those guaranteeing that Torah texts are accurate (see Kesubos 106a). As a result, the Chasam Sofer contended that Heidenheim’s monopoly should be allowed for the entire twenty-five years decreed in the original cherem, even after he had sold out his first edition.

DOES HALACHA RECOGNIZE INTELLECTUAL PROPERTY AS OWNERSHIP?

This shaylah came to the forefront in the middle of the nineteenth century, also as a result of a din torah. Around 1850, a printer named Yosef Hirsch Balaban published a large-size edition of Shulchan Aruch with major commentaries, accompanied for the first time by the anthologized commentary, Pischei Tshuvah. Balaban was sued in beis din by a printer named Avraham Yosef Madfis who claimed to have purchased exclusive rights to Pischei Tshuvah from its author. (I am uncertain whether “Madfis” was indeed his family name, or whether this referred to his profession.) At the time, Pischei Tshuvah had been printed only once, in a small-size edition, including only the Shulchan Aruch and one other commentary, the Be’er Heiteiv. Madfis claimed that Balaban had violated his (Madfis’s) exclusive ownership rights to Pischei Tshuvah.

The Rav who presided over the din torah, Rav Shmuel Valdberg of Zalkava, ruled in favor of Balaban for the following reason. The original edition of Pischei Tshuvah did not include any statement placing a cherem against someone printing a competing edition. Rav Valdberg contended that this voided any copyright on Pischei Tshuvah. Furthermore, Rav Valdberg included two more reasons to sustain his ruling. One, the original edition of Pischei Tshuvah was no longer available. Thus, even had a cherem banned a competing edition, it would have already expired once the first edition had sold out. Second, even if the first edition was still available for sale, Balaban’s reproducing Pischei Tshuvah as part of a multi-volume set of Shulchan Aruch was not competition for the original edition, where Pischei Tshuvah had been published as a small, presumably inexpensive sefer. Rav Valdberg reasoned that no one interested in purchasing Pischei Tshuvah would likely purchase Balaban’s edition of Shulchan Aruch just for that purpose; instead he would buy the small edition (assuming it was available). Thus, he did not consider Balaban’s edition to be unfair competition for those looking to purchase Pischei Tshuvah.

According to Rav Valdberg’s analysis, the author of Pischei Tshuvah has no greater ownership to his work than someone publishing a different person’s work. His latter two arguments, that the first edition was already sold out and therefore the cherem expired, and that the multi-volume set does not compete with the one volume edition, would both be preempted if we assume that the author retains ownership over his work. Thus, Rav Valdberg did not believe that halacha recognizes intellectual property rights.

The Sho’eil uMeishiv (1:44) took issue with this point. In a letter addressed to Rav Valdberg, which he subsequently published in his own responsa, he contended that the author of a work is its owner. Thus, Pischei Tshuvah retains his rights as author/owner whether or not a cherem was declared against competition. A cherem is to guarantee a publisher enough time to recoup his investment. An author is an owner, not an investor, and maintains ownership over the item produced, which he is entitled to sell, regulate, or contract. This is called intellectual property rights.

Upon reading the Sho’eil uMeishiv’s ruling, Rav Yitzchok Shmelkes, wrote him that he disagreed with Sho’eil uMeishiv’s reasoning (Shu”t Beis Yitzchok, Yoreh Deah 2:75). Beis Yitzchok contends that halacha does not recognize intellectual property rights as inherent ownership. In Beis Yitzchok’s opinion, the author has a right of ownership, but only because it is accepted by government regulation, which is termed dina dimalchusa dina, literally, the law of the government is binding. Although halacha does not usually accept non-Jewish legal regulations, a civil law established for the wellbeing of society is usually accepted. Since intellectual property rights encourage initiative and invention that are in society’s best interests, halacha accepts these ownership rights to the extent that they are recognized by civil law.

There are several key differences between the position of Sho’eil uMeishiv and that of Beis Yitzchok. According to Sho’eil uMeishiv, the ownership of an author exists forever, just as any other property that he owns. Upon his passing, they are inherited by his heirs, just like his other property. However, in Beis Yitzchok’s opinion, the ownership rights extend only according to what is established by government regulation and expire after a number of years. Moreover, in most countries, a copyright is valid only if registered, and it must also be indicated in the published work. Presumably this was not true in the Beis Yitzchok’s place and time, since he applied civil copyright law to Pischei Tshuvah, even though the author had not indicated any copyright in the sefer.

Thus, whether halacha recognizes intellectual property ownership is disputed.

Some authorities rally evidence that the Chofetz Chayim agreed with the Sho’eil uMeishiv’s position. The Chofetz Chayim left specific instructions detailing who owns the publishing rights to his seforim after his passing. He instructed that his seforim on loshon hora could be freely republished, and that Mishnah Berurah may be published by anyone, provided that 4% of its volumes printed are donated to shullen and batei medrash. However, he stipulated that most of his seforim could not be republished without permission of his family members, and that the proceeds from such publication should succor his widow for the rest of her life. Chofetz Chayim’s instructions imply that he considered his ownership to be in perpetuity. Furthermore, Chofetz Chayim did not publish any words of cherem or copyright inside his seforim. Thus, he seems to have presumed ownership over future editions of seforim on the basis of intellectual property (Shu”t Minchas Yitzchok 9:153), although it is possible that he based it on dina dimalchusa dina, following the opinion of Beis Yitzchok.

If one reads the haskamos on sefarim, published from the time of the Rama until the close of the nineteenth century, one notices that this dispute between the Sho’eil uMeishiv and the Beis Yitzchok seems to have been fairly widespread. For example, when the Chavos Yair published his own responsa, all the haskamos allow his copyright rights against someone else publishing his own responsa for a limited period of time. According to the Sho’eil uMeishiv’s opinion, the Chavos Yair should have owned these rights forever!

On the other hand, when a new edition of Shu”t Rivash was published in the 1870’s, it included a very extensive index that included all the places that the Rivash is quoted by the Beis Yosef and other halachic authorities. The edition contained three haskamos: from the Netziv, from Rav Yitzchak Elchanan Spector and from the Malbim. All three include a cherem against anyone publishing the Shu”t Rivash for six years, but explicitly mention that the ownership of the newly created index is the property of the publisher forever and may not be reproduced without his permission. They clearly are recognizing intellectual property rights in halacha.

Thus, we see interesting historical precedent both in favor of and in opposition to whether halacha recognizes intellectual property. Some of these factors are included when debating the role of copyright violation in halacha today.




Mezuzah Mysteries — or Is this really a doorway?

Within the last few months, I was sent the following e-mail shaylos complete with accompanying diagrams and photos.

Question #1:

Raphael* sent me an e-mail which included an attachment with the layout of his new apartment (see attachment entitled "map"). He wants to know whether he needs to place a mezuzah at the doorway out of the lounge marked "Sofek 1", and also whether the entrance to the kitchen requires a mezuzah. Both instances are not architecturally proper doorways, but entrances formed by walls.

Click to download Apt map pdf

*Although all questions mentioned here are authentic, names have been changed to protect each individual’s privacy.

Question #2:

Yisroel sent me photographs of his hallway to determine whether he needs to place a mezuzah at its entrance (see attachment entitled "is this a mashkof").is this a mashkof

Answer:

In modern residences, many rooms are not entered via doors, but through entranceways. Do these entrances require a mezuzah? In order to answer, we need to explain when a doorway requires a mezuzah.

The "Ten Commandments" of Mezuzah

The laws governing when one must place a mezuzah are indeed complicated. The Rambam establishes ten rules that must be met to require a mezuzah, of which the following three issues are germane to answer the above questions.

LSD

Is there a lintel?

Are there sideposts?

Is there a door?

Lintel

According to all halachic authorities, a doorway does not require a mezuzah unless there is a mashkof, a lintel that comes down from the ceiling to form the appearance of a doorway. Let me explain.

What is a mashkof?

When building a house, one must be certain that the part of the building above a door or a window is properly supported so that the building does not tumble down on its inhabitants, something that will ruin the contractor’s reputation and potentially could hurt someone. A lintel is the architectural piece that provides this support. The lintel rests its own weight and that which it supports on sideposts.

The laws of mezuzah do not require that the sideposts or the lintel actually carry the weight of the area above the door. It is adequate if the mashkof, or lintel, merely provides an aesthetic function of giving the entrance the appearance of a doorway. However, when there is no mashkof at all, that is, nothing comes down vertically to give the appearance of a lintel, there is no requirement to install a mezuzah, even when there are two proper sideposts and even when there is a door.

In modern construction, most doorways to kitchens, living rooms, dining rooms, and dens do have a piece of wall that protrudes down from the ceiling to give the appearance of a mashkof. This is for aesthetic reasons – to provide more of a sense that this is a separate room. However, when the ceiling above the room’s entrance is a horizontal plane without anything protruding downward to form a mashkof, there is no requirement to install a mezuzah even when the entrance has all the other appurtenances of a door.

At this point, I suggest you look carefully at the other attachment, the one that Yisroel sent. Is this considered a mashkof?

What happened here is that air conditioning ducts were installed in the hallway thus giving the entrance to the hallway somewhat of an appearance of being a doorway. However, in my opinion, there is no real mashkof here since it does not come down vertically to create an entranceway. The ducts have become the ceiling of the hallway, which therefore has a lower ceiling than the larger room in front. I do not consider this a proper mashkof and therefore ruled that they do not need to place a mezuzah here.

The map that Raphael sent bears no indication whether either questionable doorway contains a mashkof. Thus, on the basis of the map alone I could not provide an answer.

Is this considered a sidepost?

Assuming the there is some form of mashkof on each questionable entranceway, our next question is whether the walls that form each of Raphael’s "sofek" qualify as sideposts.

To understand whether this is considered a sidepost for the purposes of requiring a mezuzah, I will quote a passage of the Gemara:

"Ameimar said: an entranceway formed by a corner (in Aramaic de’ikarna) requires a mezuzah. Rav Ashi said to Ameimar: ‘But it has no sidepost!’ To which Ameimar retorted, ‘these [that is, the corners of the wall] are its sideposts’" (Menachos 34a).

What is meant by "an entranceway formed by a corner"?

A Sidepost Created by the End of a Wall

The Rosh (Hilchos Mezuzah #14) explains that the case is where one entire wall of the room or house is missing, and thus the entranceway is created by the wall ending, rather than the existence of an actual door. This is exactly what we find in modern construction, where the entrances to kitchens, dining rooms, living rooms, dens, and hallways are often created without a proper entranceway, but simply by a wall. In our apartment map diagram, both entrances that Raphael labeled as "sofek" are graced with this phenomenon.

Rav Ashi rules that these rooms have no sideposts, and therefore no requirement to place a mezuzah. Ameimar disagreed, contending that the "ends" of the walls qualify as sideposts. Both scholars agree that if one side of the entrance does not have the end of a wall, but is a continuing wall, that there is no sidepost on that side. We have exactly such a phenomenon in Raphael’s sofek 1 where there is no sidepost on the left side. Does this automatically remove the requirement of mezuzah? For this we need to examine a different passage of Gemara.

"Rav Papa went to Shmuel’s house and saw a doorway that had a sidepost only on its left side on which there was a mezuzah. Rav Papa said to him: ‘Were you intending to follow Rabbi Meir’s opinion (who required a mezuzah even if there is only one sidepost)? Rabbi Meir required a mezuzah on a doorway with one sidepost only when its sidepost is on the right side, but not when there is only a sidepost on the left side.’"

Right, Left…

Thus, Rav Papa notes that when the only sidepost is on the left side, there is no requirement to place a mezuzah according to all opinions. When the solitary sidepost is on the right side (entering the room), then whether there is a requirement to install a mezuzah is dependent on a dispute between Rabbi Meir and the Sages.

Let us now return to the Gemara’s discussion:

"To what comment of Rabbi Meir are we referring? To the following teaching: A house with only one sidepost, Rabbi Meir requires it to have a mezuzah and the Sages exempt it. What is the reason of the Sages? The Torah says mezuzos, which is plural," or a minimum of two (Menachos 34a).

Do we rule like the Sages or like Rabbi Meir?

The Rambam concludes like the Sages and therefore in his opinion one needs a mezuzah only when there are two sideposts. This is how the Shulchan Aruch concludes. According to this approach, there is no requirement to place a mezuzah unless the entrance has two sideposts. This approach would exempt the doorway labeled "sofek 1" from the mitzvah of mezuzah.

However, most authorities rule that if there is a right sidepost one should place a mezuzah there, albeit without a beracha. Thus, according to most opinions, the entrance leading towards the bedroom of Raphael’s apartment would require a mezuzah (assuming that is has a mashkof) but without a beracha.

Is there a door?

In the Rambam’s opinion, a mezuzah is required only when the house or room’s entrance has a door.

In this instance, the Rambam’s position is a minority opinion, since most other Rishonim contend that the lack of a door does not absolve the requirement of a mezuzah. The accepted conclusion is to install a mezuzah in a doorway that has no door, but not to recite a beracha when doing so out of deference to the Rambam (see Shulchan Aruch, Yoreh Deah 286:15).

So now Raphael has his answer: The rooms where there is a right sidepost upon entering require a mezuzah without a beracha, provided that they have some type of mashkof. One would not recite a beracha on placing the mezuzah unless there is an actual door and also sideposts on both sides of the door.

Mezuzah Rewards

Aside from fulfilling a mitzvah commanded by Hashem, the mitzvah of mezuzah serves to remind us constantly of His presence, every time we enter and exit our houses. We touch the mezuzah whenever we enter or exit a building to remind ourselves of Hashem’s constant presence, and it is a physical and spiritual protective shield. Whenever passing it, we should remind ourselves of Hashem’s constant protection.

is this a mashkof.JPG




The Milky Whey — Does Chalav Yisrael Apply Today?

clip_image002_thumb.gifQuestion #1:

Shirley mentions to her friend:  “I do not understand why people are concerned about using only chalav Yisrael. Do they really think that someone is adding pig’s milk?”

Question #2:

Muttie inquires: “My friend quoted his rav that it is more important to keep chalav Yisrael today than it ever was before. How could this be?”

Chazal (Bechoros 6b) derive from this week’s parsha a rule that whatever derives from a non-kosher species, such as eggs or milk, is also non-kosher, and thus milk of mares, camels, llamas, donkeys or sows are all non-kosher. Still, people find chalav Yisrael a perplexing matter. We have all heard various authorities quoted as saying that today use of chalav Yisrael is only a chumrah, whereas others rule that consuming non-chalav Yisrael foods is a serious infraction of halacha. The mission of this article is to provide appreciation of the issues involved. So, let us start from the beginning of the topic by understanding the origins of this proscription and then explaining the different approaches as to why it does or does not apply today.

Before we even begin our halachic discussion, we need some biological and food production information. The definition of a mammal is an animal that nurses its young with mother’s milk. (The Modern Hebrew word for mammal is yoneik, literally, that which nurses, meaning that the young suckles mother’s milk.) Hashem, who provides for all His creatures, custom-developed a formula that provides the ideal nourishment for the young of each mammalian species. This supplies the perfect “food pyramid” balanced diet with all the proteins, carbohydrates, vitamins and minerals that a young growing foal, cub, kitten, puppy, kid, lamb, infant or calf needs to thrive and mature until it is ready for an adult diet, which in many species is when it is ready to earn its own living.

There are thousands of species of mammals, yet each species’ milk is somewhat unique. The young of kosher animals require a certain protein, called casein, in higher proportions than do the young of non-kosher animals, and therefore Hashem made kosher milk with a higher proportion of casein. Non-kosher milk, of course, also contains significant amount of protein necessary for a young growing mammal, but most of this protein is categorized as “whey protein.” (When I use the term “non-kosher milk” in this article I will be referring to milk from non-kosher species.) Kosher milk also contains whey protein, but in much smaller proportion to the casein in the milk.

The Origins of Chalav Yisrael

The Mishnah (Avodah Zarah 35b, 39b) proscribes consuming milk that a gentile milked, unless a Jew supervised the milking, a prohibition called chalav akum. The Gemara notes that we are not concerned that the gentile is misrepresenting non-kosher milk as kosher — milk from non-kosher species looks different from kosher milk, and this would be easily identified. Rather, the prohibition is because the milk may have been adulterated with milk of a non-kosher species. The Gemara subsequently discusses how closely must the Jew supervise the milking, concluding that when the gentile has both kosher and non-kosher animals that could be milked, the Jew may be sitting in a place where he/she cannot observe the milking, provided that should he/she stand up he would be able to observe the milking. Since the Jew can rise to his feet at any moment, we may assume that the gentile would not risk milking his non-kosher animal and losing the Jew’s business. Therefore this milk still qualifies as kosher chalav Yisrael, meaning milk that was supervised by a Jew.

On the other hand, should the gentile have only kosher species in his herd, the Gemara implies that the Jew does not need to maintain as close supervision, but it does not define exactly how much supervision is required. Although the milking still requires the attendance of a Jew, the halachic authorities dispute the reason and purpose of the Jew’s presence. This dispute is what underlies the controversy alluded to above.

The most lenient approach

The most lenient approach to the question of chalav akum is that of the Pri Chodosh (Yoreh Deah 115:15), who understands that one needs to be concerned about chalav akum only when the non-kosher milk is less expensive than the kosher variety, or when the non-kosher milk is difficult to sell. However, when kosher milk is less expensive, he contends that one does not need to be concerned that the gentile would add more expensive, specialty non-kosher milk into regular kosher milk. The Pri Chodosh reports that he was living in Amsterdam at the time that he wrote his commentary (he subsequently relocated to Eretz Yisrael), and the vast majority of the Torah community there drank the milk sold by gentiles and did not consider it to be chalav akum. He further adds that he himself relied on this approach and drank this milk. The key point of the Pri Chodosh is that there is no requirement that a Jew actually observe the milking, nor is there even a requirement that one be absolutely certain that no non-kosher milk was added. It is sufficient that there be no incentive for the gentile to add non-kosher milk to his product, and the Mishnah and Gemara that required a Jew to supervise the milking did so only when the gentile had some motivation to adulterate the milk.

The Chasam Sofer’s approach

On the other hand, the Chasam Sofer (Shu”t Yoreh Deah #107) took tremendous umbrage at people who were lenient in the use of milk from gentiles. He maintained that Chazal required that a Jew actually supervise the milking and that, furthermore, should their reason no longer apply, the rabbinic injunction remains binding until a larger and more authoritative body declares the original sanction invalid (see Gemara Beitzah 5a). Since a more authoritative beis din never rescinded the prohibition on unsupervised gentile milk, consuming this milk constitutes a serious violation. The Chasam Sofer requires that a Jew be on hand to observe (or be able to observe) the milking, and if a Jew is not there, the produced milk is completely non-kosher because of the rabbinic injunction, even when there is no incentive for the non-Jew to adulterate the product.

Risk of Snake Bite

Chazal (Bava Basra 110a; Avodah Zarah 27b) invoke the verse uporeitz geder yishachenu nachash  to mean that someone who violates a rabbinic injunction deserves to be punished by being bitten by a snake, an indication that people should be exceedingly careful not to ignore rabbinic prohibitions (see Koheles 10:8). The Chasam Sofer writes that someone who ignores the rabbinic prohibition of chalav akum and drinks milk relying on the assumption that the gentile would not add non-kosher milk should be categorized as a poreitz geder, deserving of the punishment of yishachenu nachash.

Furthermore, the Chasam Sofer contends that even if the Pri Chodosh is correct that when kosher milk is cheaper than non-kosher milk the prohibition of chalav akum does not apply, since the Jewish people rejected this ruling of the Pri Chodosh, we are prohibited from consuming dairy products that a Jew did not supervise because of the laws of nedarim, vows. Since Jews did not use chalav akum even in places where non-kosher species are not milked, it is considered that they accepted a vow to prohibit unsupervised milk. As a result, the Chasam Sofer rules that it is prohibited min HaTorah to consume unsupervised milk, with the full stringency of a vow.

One in-between position

There is an approach in between these two positions, that of Rav Moshe Feinstein and the Chazon Ish (Yoreh Deah 41:4), who contend that in a place where non-kosher milk commands a higher price than kosher milk, it is still prohibited to use non-supervised milk. However, Rav Moshe understands that the takanah did not specifically require that a Jew attend the milking, but that one is completely certain that the milk has no non-kosher admixture. However, when one is certain that the kosher milk is unadulterated, halacha considers the milk to be “supervised” (Shu”t Igros Moshe, Yoreh Deah 1:47).

How can one be certain? The Mishnah recommended the most obvious way: have a Jew nearby who may enter at any moment. Of course, we realize that even this method is not foolproof, but it is as thorough as halacha requires.

Is there another way that one can be certain? Allow me to use my own example to explain Rav Moshe’s approach. Someone runs laboratory tests on some unsupervised milk and concludes with absolute certainty that in front of him is 100% sheep’s milk. However, no Jew supervised the milking. Is the milk kosher?

According to Rav Moshe’s analysis, this milk is certainly kosher, since we can ascertain its source.

In his earliest published teshuvah on the subject, Rav Moshe explained that when the government fines those caught adulterating cow’s milk, the fear of this consequence is sufficient proof that the milk is kosher. In later teshuvos, he is very clear that other reasons why we can assume that the milk is kosher are sufficient proof, including that normal commercial practice is that standard milk is bovine milk (Igros Moshe, Yoreh Deah 1:48, 49). One should note that the Chazon Ish also agrees with Rav Moshe’s approach.

Being Stringent

Although Rav Moshe concludes that where one can rely that the standardly available milk is kosher there is no prohibition of chalav akum, he still rules in a different teshuvah that a chinuch institution should use only chalav Yisrael products even if all the children come from homes that do not use chalav Yisrael exclusively. He contends that part of chinuch is to show children that one follows a stricter standard, even when halacha does not necessarily require one.

Contemporary Problem

There is another major reason why some poskim who in general accept the lenient approaches regarding the prohibition of chalav akum feel that one should be stringent today. This is because of the common occurrence of a veterinary problem that affects dairy cows called displaced abomasums, which is often treated in a way that may render this cow’s milk non-kosher. I will discuss this topic a different time.

At this point, we can answer Shirley’s question, which I mentioned above: “I do not understand why some people keep chalav Yisrael today. Do they really think that someone is adding pig’s milk?”

Indeed, even in the time of the Gemara, it was probably unheard of for anyone to add pig’s milk or, for that matter, for anyone to use pig’s milk, since sows are almost impossible to milk. Although most non-kosher species do not allow themselves to be milked (have you ever tried to milk a cat?), camels, donkeys, and mares can all be milked and produce a palatable product. As a matter of fact, at times there was a large (non-kosher) market for mare’s milk, because of its reputed health benefits. (See Encyclopedia Talmudis Volume 15 column 178-179.) Contemporarily, there is extensive research at Ben Gurion University about use of some antibodies found in camel’s milk for treatment of a host of autoimmune diseases. I have been asked many questions about use of this milk, which is clearly non-kosher, but is permitted in case of a life-threatening ailment. (The shaylos that result from this last case will need to be dealt with at a different time.)

To answer Shirley’s question succinctly: although we can assume that the milk on your supermarket shelf is unadulterated cow’s milk, the Chasam Sofer still rules that Chazal prohibited consuming this milk, and this prohibition is in full effect today, even when the reason for the takanah no longer applies. In addition, other rabbonim have voiced other concerns about the kashrus of unsupervised dairy cows.

Stricter than Ever?

At this point, let us examine the second question I mentioned above: “My friend quoted his rav that it is more important to keep chalav Yisrael today than it ever was before. How could this be?”

One obvious reason for this rav’s position is that he holds, as does the Chasam Sofer, that using non-chalav Yisrael incurs a Torah prohibition of violating vows. Furthermore, he may feel that since being lenient on this issue is so rampant, one must demonstrate the importance of this mitzvah. He may also be concerned about the displaced abomasums problem, and holds that this prohibits the milk min haTorah.

In Conclusion

Notwithstanding the fact that the Chazon Ish writes the reasons why unsupervised milk is permitted, he never allowed its use; and Rav Moshe similarly advocates being strict, and himself did not rely on the heter. Similarly, it is well known that Rav Eliezer Silver traveled across North America by train taking his own chalav Yisrael milk with him as he went. (I have no idea why it did not spoil en route.) In conclusion, we allow each reader to clarify with his own rav whether his or her circumstances permit relying on using non-chalav Yisrael milk.




May I Keep My Skeletons in the Closet?

This week’s parsha closes by mentioning that the daughters of Tzelafchad succeeded in
finding husbands. I am certain that they had no secrets to disturb their shidduchin from
happening, but what would happen if they did? Would they have been required to “spill
the beans,” or could they have kept these dark secrets to themselves? In this article we
will discuss the ramifications of this question, specifically:
1. What one must tell and what one is not required to tell.

2. When (at what stage in the developing relationship) is one required to inform about the
issue?

3. Whom one must tell.

I was asked this question recently:

Mrs. Weiss (not her real name) called me to discuss the following sensitive matter:
“I was once treated successfully for a serious disease. My grandmother had the same
illness, yet lived in good health to a ripe old age. The doctors feel that my daughter
should be checked regularly from a fairly young age for this same disease. She is now
entering the shidduchim parsha. Must I reveal this family information to shadchanim
(matchmakers) and/or to the families of potential chassanim, and, if so, at what
point must I disclose this information? I am truly concerned that this could seriously
complicate her shidduch possibilities.”

Although this situation may be atypical, we all have medical, personal, and/or
genealogical issues that we wish to keep private. What information must we reveal while
arranging shidduchim for our children (or for ourselves)? And at what point must we
disclose it?

The prohibitions of Geneivas daas, misleading someone, and Onaah, fraud, apply equally
to shidduchin. However, there are many complicating factors involved in shidduchin, and
therefore we need to explain:

ONAAH — FRAUD

Misrepresenting a product or service in order to make a sale is a form of cheating, such
as painting an item to hide a defect. A modern instance of onaah is insider trading,
which means that someone purchases or sells a stock or commodity because he/she has
information, either positive or negative, about the stock, that is unavailable to the public.
This is dishonest because the other transacting party is unaware of this information which
affects the value of the item they are buying or selling.

In shidduchim the same rule is true: Subject to some exceptions, which I will explain
shortly, one must notify the other party of information that might concern them. Hoping

that no one takes this personally, I will refer to this type of negative information as
an “imperfection.” For example, Mrs. Weiss is inquiring whether the family medical
history is an imperfection that must be revealed.

MEKACH TA’US – INVALIDATING THE MARRIAGE

The most serious ramification of withholding required information about shidduchim,
or worse, of being deceptive, is that this can even result (in certain extreme cases) in a
halachically invalid marriage. (This indeed applies to any contracted arrangement – an
unrevealed serious imperfection brings about a mekach ta’us, because the two parties
never agreed to the arrangement as it indeed exists.)

Here are a few interesting examples:

If someone specifies that his new wife should have no vows (nedarim) and finds that she
is bound by neder to abstain from meat, wine or nice clothes, the kiddushin is annulled
(Kesubos 72b)! A husband wants that he and his wife enjoy life together, and refraining
from these activities may disturb the happiness of their marriage.

OTHER SERIOUS IMPERFECTIONS

To quote the words of the Sefer Chassidim (#507), “When arranging matches for your
children or other family members, do not hide medical issues from the other party to
which they would object enough to decline the shidduch, lest they afterward choose to
annul the marriage. You should also tell them about deficiencies in halachic observances
that are significant enough that the other party would have rejected the marriage.”

CAN’T SMELL

Another example of unrevealed information that invalidates a marriage is a woman’s
failure to notify her future husband that she has no sense of smell, since this flaw
hampers her ability to prepare tasty meals. Similarly, a profession that causes a man’s
body to have a foul odor is sufficient reason to invalidate the marriage (Kesubos 76a).

Withholding information concerning an inability to have children is certainly a mekach
ta’us. In this last situation, a physician who is aware that his patient cannot have children
is required to reveal this information to the other side, even though this violates patient
confidentiality (Shu”t Tzitz Eliezer 16:4). In the situation above, the physician was aware
that the young woman had no uterus, and therefore it was physically impossible for her
to conceive a child. He was also aware that they were hiding this information from the
prospective groom. The same would be true should the male be unable to have children,
since the assumption is that people of childbearing age marry intending to bear offspring
from the marriage.

WHAT MAY ONE HIDE?

What type of information may one withhold?
There are two categories of negative information, imperfections, that one does not need
to reveal. They are information that the other party could find out on one’s own, and
information that is not significant.

KNOWN INFORMATION

A seller is not required to disclose an imperfection in his product that the buyer could
discover on his own. Furthermore, as long as the buyer could have noticed something that
may arouse attention, there is no geneivas daas and no onaah in making the sale (Shu”t
Igros Moshe, Yoreh Deah 1:31).

For example, if someone is selling a house with a drop ceiling, he is not required to notify
the buyer that there was damage above the ceiling, since a drop ceiling in a residence
should arouse attention. Similarly, if the entire neighborhood is susceptible to flooding
basements, the seller does not need to mention that his basement has a severe water
problem. If the buyer asks directly, the seller must answer honestly.

Again, in regard to stock trading: The seller is not required to mention that in the last
recorded quarter the company reported a sharp decline in profits since this information is
readily available to the buyer.

A similar concept is true concerning shidduchim. For example, if the scandalous activities
of a family member are well known in one’s hometown, one need not tell the other party
since this information could be discovered by asking around (Shu”t Panim Meiros 1:35).
Halachically, when the other party asks neighbors for information about this potential
shidduch, the neighbors should share the requested details. This is a topic I intend to
discuss more fully in a future article.

INSIGNIFICANT INFORMATION

A second category of information that need not be revealed includes factors that are
insignificant to the buyer. One is not required to provide an in-depth list of every
shortcoming the merchandise has. Similarly, shidduchim do not require revealing
every possible medical or yichus issue. The Chofetz Chaim (Be’er Mayim Chaim #8 at
end of Hilchos Rechilus) distinguishes between a medical issue one must reveal and
a “weakness,” which one does not. Thus, someone need not reveal minor ailments that
would not disturb the average person.

Of course, it is sometimes difficult to define what constitutes a “minor ailment” and what
constitutes a serious one, and specific rabbinic guidance is usually warranted when one is
in doubt. However, I will present one or two examples of each.

Although I know rabbonim who disagree with this position, I feel that juvenile diabetes
is a malady that must be mentioned, whereas non-life threatening hay fever and similar
allergies may be ignored. On the other hand, an allergy that is so serious that it affects

one’s lifestyle and activities in a major way must be mentioned. My usual litmus test is: If
the issue is significant enough that one might want to hide it, it is usually something that
one should tell.

WHEN TO TELL?

At what point must one reveal a significant “imperfection”?

In most instances, there is no requirement to notify the other party or a shadchan of any
of these imperfections at the time a shidduch is suggested. The Sefer Chassidim, quoted
above, does not mention at what point one must notify the other party of the shortcoming.
Contemporary poskim usually contend that one should reveal this information after the
couple has met a few times; about the time the relationship is beginning to get serious,
but after the two parties have become acquainted and see their overall qualities as an
individual. This is the approach I personally advise in all such situations. There is no
requirement for the parties to tell a shadchan, and in some situations it is prohibited to do
so.

My daughter has a close friend who unfortunately has celiac. She had been told by her
rav that she should reveal this information on the third date. (Let me note that this exact
detail will vary tremendously on the dating approach used in the couple’s circles.) She
was so nervous and concerned how the guy would react, that she was unable to bring
herself to mention it then. Finally, on the fourth date, she was able to get the words out,
to which he reacted nonchalantly, “Oh, so does my brother.” This story has a very happy
ending, since her mother-in-law anyway prepares food that is appropriate.

REJECTION
However, if one knows that the other party will reject the shidduch because of this
imperfection, I would recommend forgoing this shidduch from the outset. For example,
if one knows that a particular family prides itself on a pure pedigree, don’t pursue a
shidduch with them if you know they will ultimately reject it when they discover that
your great-uncle was not observant.

At this point, we can discuss Mrs. Weiss’ shaylah asked above:

“I was once treated successfully for a serious disease. My grandmother had the same
illness, yet lived in good health to a ripe old age. The doctors feel that my daughter
should be checked regularly from a fairly young age for this same disease. She is now
entering the shidduchim parsha. Must I reveal this family information to shadchanim
and/or to the families of potential chassanim, and, if so, at what point must I disclose
this information? I am truly concerned that this could seriously complicate her shidduch
possibilities.”

Most poskim with whom I discussed this shaylah contended that one should reveal
this information to the other side after the couple has gotten to know one another
and is interested in pursuing the relationship. One rov disagreed, contending that

since the problem can be caught early and treated successfully, one need not divulge
this information at all. All opinions agree that one has absolutely no obligation to
mention this information to a shadchan or to anyone who has no personal need for this
information.

Obviously, I cannot possibly discuss the various permutations of these shaylos in an
article, but simply can present the issues. Wishing all much happiness in their marriages
and their children’s marriages!




Important Eating – The Halachos of Ikar and Tafeil

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Question #1: You made a bracha on a cup of tea and sipped it, and then decided it needed more sugar. Do you need to make a bracha on the extra sugar?

Question #2: You cooked a delicious vegetable-barley soup. What bracha do you recite before eating it? Does it make any difference whether you want to eat the barley?

Question #3: I eat my potato latkes with apple sauce. How many brachos and which ones do I recite before eating them? Does it make a difference if I finish the latkes but am still eating the apple sauce?

The main theme of this week’s parsha, Balak, is mankind’s ability to recite berachos, and the opposite, and creating proper priorities in how we use this ability. This is certainly an opportune time to examine the complicated rules governing how we prioritize the brachos on what we eat.

We apply the rules governing ikar and tafeil, literally the “primary” item and the “secondary” one, numerous times throughout the day. Whether we are eating cereal, fruit and milk for breakfast, macaroni and cheese for lunch, chicken with rice for supper, or snacking on an ice cream cone, these halachos apply. It definitely behooves us to be sure we are applying the halachos correctly.

First an introduction:

The Mishnah (Berachos 44a) which discuss brachos recited before eating states, “This is the rule: Whatever is primary and is accompanied by something secondary, one recites the bracha on the primary and absolves the secondary item.” Thus, the secondary item does not receive its own bracha, but is included in the bracha of the primary item.

WHAT CONSTITUTES AN IKAR-TAFEIL SITUATION?

There are two general categories of situations included in the halachos of ikar and tafeil; (1) when the ikar is an enhancer and (2) when the two items are combined in a mixture.

(1) Enhancers: This category includes food items where the tafeil food makes the ikar food tastier. Some common examples include: Cereal with fruit and milk; eating latkes with apple sauce; stirring herbal tea with a cinnamon stick; breading fish or meat (schnitzel).

In all of these cases, one recites the bracha for the ikar; that is, the cereal, latkes, tea, or meat; and the tafeil is included – that is, the tafeil item loses its bracha.

The category of enhancers also includes cases where the ikar is too spicy or sharp to eat alone. Thus, eating a cracker or piece of bread with a very sharp food to make it edible is a case of ikar and tafeil and one recites the bracha only on the sharp food (Mishnah Berachos 44a).

We should note, however, that the tafeil item loses its bracha only when one eats it together with the ikar or afterwards. But if one eats the tafeil before one eats the ikar, one does recite a bracha on the tafeil. Thus, food eaten before schnapps to soften its “bite” requires a bracha since one is eating it before the schnapps. When this situation occurs, the poskim debate what bracha one recites on the tafeil.

(2) Mixtures: This category includes cases where one food is not specifically enhancing the other, but both foods are important. For example, someone eating macaroni and cheese, blintzes (they always contain a filling), cholent, kugel, or stew is interested in eating all the different foods that comprise the dish. The same halacha applies when eating soups, which may contain vegetables, meat, noodles, barley, or flour. In these cases, all the food items eaten are important and none of these ingredients serve only to enhance the rest. However, the food in these cases are mixtures they are considered one complete food item and therefore only recites one bracha for the entire food, although it contains items that eaten separately would require separate brachos. Thus, the concept of ikar and tafeil is very different here – it is the rule used to determine which bracha we recite on this food. In this case, the bracha of the ikar is the bracha on the entire item.

WHAT DETERMINES THE BRACHA ON A MIXTURE?

There are three rules that determine which bracha to recite on a mixture.

1. If one of the items in the mixture is clearly the most important, then that item determines the bracha (Pri Megadim, Pesicha Koleles, Hilchos Brachos s.v. HaTenai; Mishnah Berurah 212:1). For example, the bracha on chicken soup with vegetables is shehakol since the chicken is the most important flavor component in the soup. However, if it is a vegetable soup with some meat added for flavor, the bracha would be ha’adamah (Shulchan Aruch, Orach Chayim 205:2 and commentaries).

2. When there is no most important ingredient, the bracha is usually determined by the majority item in the product. Thus, the bracha on a peanut bar containing peanuts, honey, and sugar is ha’adamah since peanuts are the major ingredient, and the bracha on a tzimmes consisting of prunes and sweet potatoes depends on which item is the major ingredient.

3. However, when the mixture contains one of the five grains (wheat, barley, spelt, oats, and rye) then the bracha is usually mezonos, unless the flour or grain product is included only to hold the food together (Shulchan Aruch 204:12; 208:2,3). Because these grains are important, they are the ikar of the mixture even if they are a minority component.

However, when the flour’s purpose is only to hold the item together or to provide texture, then it is not the ikar of the food because its purpose is clearly to function is a subsidiary. (In this instance, the flour is being used to enhance the other food item, and thus it categorically becomes a tafeil.)

Therefore, the bracha on a trifle containing cakes and ice cream is mezonos even if there is more ice cream than cake, since the cake is a grain product; whereas the bracha on potato kugel that contains flour, bread crumbs, and/or matzoh meal to provide texture is ha’adamah. Since the grain product here functions only to hold the kugel together, it is tafeil and does not affect the bracha. Similarly, flour added to thicken soup is tafeil (Mishnah Berurah 212:1). When the flour provides taste or makes the product satisfying, then the flour is the ikar and the bracha is mezonos (Shulchan Aruch 204:12; 208:3).

Similarly, the bracha on vegetable-barley soup is mezonos. However, if the barley is completely dissolved, the bracha on the soup is usually ha’adamah. Similarly, if you do not want to eat the barley but a few pieces ended up in your portion anyway, the bracha is ha’adamah.

The same rules apply in the case of licorice candy whose bracha is shehakol even though it contains a significant amount of flour, since the flour is there only to give it a stiff texture. On the other hand, the bracha on kishka is mezonos, since the main ingredient is the flour.

BEFORE AND AFTER

Until now we have been discussing situations when you are eating the ikar and tafeil together. What do you do if you are eating the tafeil item either before or after you eat the ikar?

A TAFEIL EATEN BEFORE

A tafeil loses a bracha only when it is eaten together with the ikar or afterwards, but not when it is eaten before. Again, the reason for this becomes fairly clear once we think about it. A tafeil’s bracha is subsumed by the bracha on the ikar. This helps us as long as one has already recited the bracha on the ikar. However, if one has not yet recited the bracha on the ikar, how can one eat the tafeil without reciting any bracha at all since we are forbidden to benefit from the world without first reciting a bracha? Thus, it must be that we recite a bracha on the tafeil when eating it before the ikar.

However, this does not tell us whether the bracha on the tafeil is the same bracha one would usually recite on it, or whether it is automatically reduced to a shehakol. Let us say that someone is going to drink a powerful beverage or a very spicy pepper, and in order to tolerate it, he is first going to eat some bread or crackers. What bracha does he recite on the bread or cracker?

The Rama (212:1) rules that one recites a shehakol on the bread or cracker!

WHY DOES THE CRACKER LOSE ITS BRACHA?

The Rama’s ruling is based on an earlier psak of the Terumas HaDeshen, who discusses a case of someone who wants to drink wine, but can not drink the wine on an empty stomach. Therefore he eats some seeds whose bracha is usually ha’eitz before imbibing the wine. The Terumas HaDeshen rules that he recites a shehakol on the seeds since he is not getting his primary benefit from the fruit (Darchei Moshe 212:2). However, the Beis Yosef disagrees and rules that he should make ha’eitz on the seeds.

On what concept is this dispute dependent? One could explain that this dispute reflects two different ways of explaining why one does not recite a bracha on a tafeil. The Terumas HaDeshen contends that a tafeil is unimportant and therefore does not warrant a bracha, however, one cannot benefit from this world without a bracha — therefore one recites shehakol. On the other hand, the Beis Yosef holds that the bracha on the ikar counts as the bracha on the tafeil and therefore one does not need to make a bracha on it- but if the tafeil were to require a bracha, it does not lose its status or its bracha.

EATING A TAFEIL AFTER THE IKAR

What do you do if you finished eating the ikar, but you have not yet completed the tafeil. Do you recite a bracha on the tafeil since you are no longer eating the ikar, or do we say that the bracha on the ikar still suffices? For example, you finished your cereal, but there is still some milk left, or you finished the barley of the soup, but there is still more soup to eat. Do you recite a new bracha on the rest of the soup?

The halacha is that if you finished the ikar first, and a small amount of tafeil remains, one does not recite a bracha on the remaining tafeil. However, if a large amount remains, one does recite a bracha (Mishnah Berurah 168:46).

At the beginning of the article I asked the following shaylah, “You made a bracha on a cup of tea and sipped it and then decided it needed more sugar. Do you need to make a bracha on the extra sugar?”

The question here is that the sugar is tafeil to the tea, but can it be a tafeil when it was not in front of you when you made the bracha?

The halacha is that if you begin eating something and afterwards decide to eat a tafeil food alongside, the tafeil requires a bracha- but only shehakol (Mishnah Berurah 212:4). This is true only if the tafeil is an enhancer (see our category above). However, if it is a tafeil because it is a mixture, it receives its regular bracha. Thus, if after making a bracha on cereal, someone decided to add milk and fruit, he recites ha’eitz on the fruit and shehakol on the milk. On the other hand, if he knew he would add fruit and milk when he recited the bracha on the cereal, then they are tafeil to the cereal and he does not recite a bracha on them even though they were not present when he recited the bracha.

What should you do if someone brought you a cup of tea and you then decided to add sugar? Do you need to recite a bracha on the sugar?

If you usually add sugar to your tea, you do not need to recite a new bracha. However, if you do not, then you will need to recite a bracha on the sugar.

Not everything we do in life qualifies as our ikar purpose in life- often we must do things that are tafeil to the more important things in life. However, paying attention to the halachos of ikar and tafeil should encourage us to focus on our priorities in life- and not allow the tafeil things we must do become more important than they are.




Some Basics about Redeeming Donkeys

clip_image002Question #1: Donkey Rides

Have you ever ridden a donkey? Did you stop to wonder whether the donkey might be firstborn and that it might be prohibited to ride it?

Question #2: Pony Rides

May I ride a horse without checking first whether it is firstborn?

Question #3: Ask its mother!

How do I know whether my donkey is firstborn? I can’t go ask its mother!

Answer:

As a kohen, I often participate in the mitzvah of Pidyon Haben, redeeming a firstborn male child, a bechor, but I have never been asked to participate in redeeming a firstborn donkey, in Hebrew called peter chamor.

After Korach’s maligning Aaron, the Torah lists the awards Aaron and his descendants, the kohanim, receive for their service to the Jewish Nation (listed in Bamidbar 18: 8 -19). There are a total of twenty-four gifts that the Torah grants the kohanim (see Bava Kamma 110b; Rambam, Hil. Bikkurim ch. 1). One of these twenty-four grants is the mitzvah of peter chamor, redeeming the firstborn donkey, the firstborn of a non-kosher animal you shall redeem (Bamidbar 18:15). This is a grant because the kohen benefits by receiving a lamb or goat or the value of the donkey, as I will explain.

This is not the only place in the Torah that this mitzvah is mentioned. The Torah mentions the mitzvah of peter chamor in two other places also:

(1) In Parshas Bo, the pasuk says: Every firstborn donkey you shall redeem with a “seh,” and if you do not redeem it, you should break its neck. Furthermore, the firstborn of your children you shall also redeem (Shemos 13:13). I intentionally did not translate the world “seh” since it includes both sheep and goats, and I am unaware of an English word that includes both species.

(2) The Torah mentions this mitzvah again in Parshas Ki Sissa: The first issue of a donkey you shall redeem with a “seh” (Shemos 34:20). Here the Torah refers to the first issue, from which we derive that the mitzvah applies only if the donkey was born in the normal fashion. This means that a firstborn donkey delivered through caesarean section does not have the sanctity of being firstborn and that there is therefore no mitzvah to redeem it. Sorry, kohen, better luck next time, or more accurately, on the next mother donkey. — If a donkey was delivered through caesarean section, the next naturally-born fetus also does not become sanctified.

No Sanctity to a Puppy

Although the verse in Parshas Korach the firstborn of a non-kosher animal you shall redeem, implies that it includes any species of non-kosher animals, including puppies, kittens and baby elephants, since the two verses in the book of Shemos both specifically mention donkeys, the halacha is that the mitzvah applies only to one species of non-kosher animals: donkeys. Thus, although a dog might be man’s best friend, a firstborn puppy does not have the sanctity of a firstborn donkey foal. There is no mitzvah to redeem a firstborn colt, camel, or wolf (Tosefta, Bechoros 1:2). Thus we can now answer one of our above questions:

May I ride a horse without checking first whether it is firstborn? The answer is that firstborn horse foals have no sanctity. We will soon learn why the donkey is an exception.

Is a Peter Chamor Holy?

Does a firstborn donkey have kedusha?

Prior to its being redeemed, a firstborn donkey has kedusha similar to that of a korban. It is prohibited min haTorah to ride it, use it as a beast of burden, or even use its hair. The hair that falls off it must be burnt and may not be used. Someone who uses this donkey violates a prohibition approximately equivalent to eating non-kosher (Rashi, Pesachim 47a s.v. ve’hein; Rivan, Makkos 21b s.v. ve’hein; cf., however, Tosafos, Makkos 21b s.v. HaChoresh).

Until the donkey is redeemed, one may not sell it, although some poskim permit selling it for the difference between the value of the donkey and a sheep (Rosh, Bechoros 1:11; Tur and Rama, Yoreh Deah 321:8). Many poskim contend that if the donkey is sold, the money may not be used (Rambam, Hilchos Bikkurim 12:4; Shulchan Aruch Yoreh Deah 321:8)).

What if the Peter Chamor is Never Redeemed?

If the firstborn donkey is unredeemed, it maintains its kedusha its entire life! If it dies in its unredeemed state, the carcass must be buried to make sure that no one ever uses it. We may not even burn the carcass because of concern that someone might use its ashes, which remain prohibited (Mishnah Temurah 33b-34a). The owner who failed to redeem the donkey missed the opportunity to fulfill a mitzvah. Thus we see the value of redemption.

May I Ride a Donkey — Maybe it is a Firstborn?

Have you ever ridden a donkey? Although it is not common to ride donkeys them in North America, in Eretz Yisroel this is a fairly common form of entertainment. Did you stop to wonder whether the donkey might be firstborn and one is prohibited to ride it?

One need not be concerned. Since most of the donkeys of the world are not firstborn, one need not assume that this donkey is. Truthfully, the likelihood of a donkey being holy is very slim for another reason- most donkeys are owned by non-Jews, and a non-Jew’s firstborn donkey has no sanctity.

How do we Effect Redemption?

As mentioned above, the Torah commands the owner of a firstborn male donkey to redeem him by giving a kohen a seh, a word we usually translate as lamb. However, we should be aware that the word seh in the Torah does not mean only a lamb, but also includes a kid goat, as we see from the mitzvah of korban Pesach, where the Torah mentions this explicitly (Shemos 12:5; see Mishnah Bechoros 9a). Other species of animal, such as cows and deer, are not referred to as “seh” by the Torah (Mishnah, Bechoros 12a; Rambam, Hil. Bikkurim 12:8; Shulchan Aruch, Yoreh Deah 321:1).

By the way, one does not need a lamb or kid to redeem a firstborn donkey –a mature adult is perfectly fine. Furthermore, the lamb, kid, sheep or goat that may be either male or female (Mishnah Bechoros 9a).  Lamb chops enthusiasts take note — since they also may be either young or adult, and either male or female.

Saving the Owner Money

In actuality, using a sheep or goat to redeem the donkey is merely a less expensive way of fulfilling the mitzvah Hilchos Bikkurim 12:11). There is an alternative way to fulfill the mitzvah — by redeeming the donkey with anything that is worth at least as much as the donkey (Gemara Bechoros 11a). Thus, someone who gives a cow or deer to the kohen would fulfill the mitzvah of peter chamor if they are worth at least as much as the donkey (Rashi, Bechoros 12a Tur, Yoreh Deah 321; Shach ad loc. #1. and Taz ad loc. #3).

However, if the owner redeems the donkey with a sheep or goat, he fulfills the mitzvah even if the sheep or goat is worth far less than the donkey (Bechoros 11a, Rambam, Hil. Bikkurim 12:11). Thus by giving a lamb or kid to the kohen, the owner saves money.

Some authorities contend that it is preferable to use a seh for the redemption, and that one should redeem the peter chamor with other items only if he has no sheep or goat with which to redeem it (Rambam as understood by Beis Yosef, Yoreh Deah 321 and Perishah ad loc. #6). Others, however, maintain that redeeming a peter chamor with other items is as acceptable as redeeming it with a sheep or goat (see Tur, Yoreh Deah 321; see also Divrei Chamudos, Bechoros 1:26).

By the way, the sheep or goat cannot be a tereifah, meaning an animal bearing a terminal defect, it must be alive at the time of redemption (Mishnah, Bechoros 12a) and it may not be a  non-viable premature fetus even if it is still alive (Minchas Chinuch 22:5).

A Blemished Record

On the other hand, the redeeming seh may be of either gender, it may be blemished; and it may be of any age (Mishnah, Bechoros 9a).

Giving the Kohen the Foal

What if the owner decides to give the firstborn donkey to the kohen instead?

What is the halacha if the owner decided to give the firstborn donkey to the kohen, instead of redeeming it with a sheep, goat, or other item? Some authorities rule that if the owner gives the firstborn donkey to a Kohen he has fulfilled the mitzvah (Teshuvos HaRadvaz, I:496; Birkei Yosef, Yoreh Deah 321:4; Maharit Algazi, Hil. Bechoros 8; Minchas Chinuch 22:16). According to this view, the Torah merely gives the owner the option (emphasize by italicizing the word option) of keeping the donkey by redeeming it and giving the instrument of redemption to a Kohen.

Others disagree, arguing that redemption is not merely an option but the only means of fulfilling  the mitzvah, and that one who gives the peter chamor to a kohen does not fulfill the mitzvah (Levush, Yoreh Deah 321:8; Chazon Ish, Bechoros 17:6; see also Terumas HaDeshen vol.II #235).

Conclusion:

Why was the donkey an exception? It is the only non-kosher species of animal whose firstborn carries kedusha!

The Gemara teaches that this is a reward for the donkey. When the Bnei Yisroel exited Egypt, the Egyptians gave us many gifts (see Shemos 11:2-3; 12:35-36). The Bnei Yisroel needed to somehow transport all these gifts out of Egypt and through the Desert unto Eretz Yisroel. The Jews could not simply call Allied Van Lines to ship their belongings through the Desert. Instead Donkey Lines performed this service for forty years without complaint or fanfare! In reward for the donkey providing the Bnei Yisroel with a very necessary shipping service, the Torah endowed the firstborn of this species with sanctity (Gemara Bechoros 5b). In essence, Hashem rewarded the donkey with its very own special mitzvah. Thus, this mitzvah teaches us the importance of acknowledging when someone else helps us, hakaras hatov, for we appreciate the species of donkeys because their ancestors performed kindness for us. If we are required to appreciate the help given to our ancestors thousands of years ago, how much more do we need to exhibit hakaras hatov to our parents, teachers, and spouses for all that they have helped us!




Why Parshas Naso Sometimes Introduces Shavuos

Question #1: In most years, the parsha of Bamidbar falls on the Shabbos before Shavuos, and Parshas Naso falls the Shabbos after Shavuos. However, this year Bamidbar falls out a week earlier, and Naso is also before Shavuos. Why is this year different from the other years?

Question #2: Why are most of the “Double Parshiyos” clustered together in and around Sefer Vayikra?

Question #3: Why are the Torah’s parshiyos of such disparate length? Some parshiyos are very long — the longest being this week’s Parsha, Naso, which contains 176 pesukim. Yet at the end of the Torah we have four parshiyos that are extremely short – all of them between 30 and 52 pesukim. Why aren’t the parshiyos of similar length?

Answer:

The Gemara teaches:

Ezra decreed that the Jews should read the curses of the Tochacha in Vayikra before Shavuos and those of Devarim before Rosh Hashanah. Why? In order to end the year together with its curses! [The Gemara then comments:] We well understand why we read the Tochacha of Devarim before Rosh Hashanah because the year is ending, but why is that of Vayikra read before Shavuos. Is Shavuos the beginning of a year? Yes, Shavuos is the beginning of a new year, as the Mishnah explains that the world is judged on Shavuos for its fruit” (Megillah 31b).

However, this Gemara does not seem to explain our practice. There are two Tochachos in the Torah, one in Parshas Bechukosai, the last parsha of sefer Vayikra, and the second in Parshas Ki Savo, but neither of these parshiyos is ever read immediately before Shavuos or Rosh Hashanah. There is always at least one other Shabbos wedged between. In the case of the Tochacha of Parshas Bechukosai, Shavuos occurs usually after the next parsha, Bamidbar, but occasionally after the following parsha, Naso, as it does this year. The reading of the second Tochacha, Ki Savo is never the parsha before Rosh Hashanah. The parsha after it, Netzavim, always has the distinction of being read on the Shabbos immediately before Rosh Hashanah.

Tosafos (ad loc.) explains that the Tochacha should be read two weeks before each “New Year” to allow a buffer week between the Tochacha and the beginning of the year. Thus, Ezra’s decree was that the two Tochachos should be read early enough so that there is another reading following them before the “year” is over. The Levush (Orach Chayim 428:4) explains that without the intervening Shabbos reading as a shield, the Satan could use the Tochacha as a means of prosecuting against us on the judgment day. The intervenient Shabbos when we read a different parsha prevents the Satan from prosecuting, and as a result we can declare: End the year together with its curses!

Divide and Conquer!

We can now explain why the very end of the Torah is divided into such small parshiyos. The Tochacha of Parshas Ki Savo is located towards the end of Sefer Devarim. In order to complete our annual reading of the Torah on Simchas Torah, we want to read this Tochacha at least two weeks before Rosh Hashanah, which means that we must divide the remainder of Sefer Devarim into enough parshiyos for:

(1) A buffer parsha between the Tochacha and Rosh Hashanah.

(2) One or two Shabbosos between Rosh Hashanah and Sukkos.

(3) The Torah reading for Simchas Torah, when we complete the year’s reading, as established by Chazal (Megillah 31a).

To accommodate all this, the end of Devarim is divided into four tiny parshiyos: Netzavim, Vayeileich, Haazinu, and Vezos Haberacha:

Netzavim always becomes the “buffer parsha” read on the Shabbos before Rosh Hashanah. When we need two Shabbos readings between Rosh Hashanah and Sukkos, then Vayeileich is read as a separate parsha on Shabbos Shuva, and Haazinu is read on the Shabbos between Yom Kippur and Sukkos. When there is only one Shabbos between Rosh Hashanah and Sukkos, then Haazinu is read on that Shabbos, which is Shabbos Shuva. And Parshas Haazinu must be short enough to create a parsha after it, Vezos Haberacha, which serves as the reading for Simchas Torah.

Bamidbar is always before Shavuos

Returning back to the Gemara in Megillah, we now understand why the end of Sefer Vayikra always falls at least two Shabbosos before Shavuos. Since the Tochacha is located at the end of Vayikra, Bamidbar must always be read before Shavuos to be a buffer between the Tochacha and the “new year” of the produce of the trees, as explained by the Gemara.

We can now refer back to one of our original questions: Why are most of the “Double Parshiyos” clustered together in and around Sefer Vayikra?

The “Double Parshiyos”

There are seven potential occurrences when we read “double parshiyos“, that is, two consecutive parshiyos are read on one Shabbos as if they are one long parsha. These seven are:

Vayakheil/Pekudei, the last two parshiyos of Sefer Shemos.

Tazria/Metzora, in Sefer Vayikra.

Acharei Mos/Kedoshim, in Sefer Vayikra.

Behar/Bechukosai, in Sefer Vayikra.

Chukas/Balak, in Sefer Bamidbar.

Matos/Masei, the last two parshiyos of Sefer Bamidbar.

Netzavim/Vayeileich, towards the end of Sefer Devarim.

This leads us to a series of interesting questions:

(1) Why are there no doubled parshiyos in Bereishis, nor any for almost the entire length of Sefer Shemos?

(2) Why do we cluster together four doubled parshiyos between the last week of Shemos and Sefer Vayikra?

(3) And lastly, why do we not double any parshiyos at the beginning of Sefer Bamidbar?

With a little more background, we will be able to answer all of these questions.

In this article, I will discuss the reason for the first four of these doubling of the parshiyos.

Leap and Common Years

When Hashem commanded us to create a calendar, He insisted that we use the moon to define the months, and yet keep our year consistent with the seasons, which are dependent on the sun. (The word “month” originally meant “a period of time corresponding to the moon’s cycle,” which is approximately 29 1/2 days, but the use of “month” today in the western calendar is simply a convenient way to divide the year and has nothing to do with the moon’s cycle.)

This mitzvah does not allow us to create either a purely solar calendar, the basis of the common western calendar, which ignores the moon’s changing phases. Nor does it allow us to create a perfectly lunar calendar of twelve lunar months, since this lunar “year” is approximately eleven days shorter than a solar year. If we were to follow a calendar of twelve lunar months every year, our months would not fall out in the same season. Pesach would occur sometimes in the dead of winter and Sukkos in the spring. This is exactly what transpires in the Moslem calendar, which always has exactly twelve lunar months in every year. Moslem months do not fall out in the same season. For example, Ramadan this year falls in the summer, but in a few years will occur in the winter.

The Torah requires that Pesach fall in the spring, yet requires that the months correlate to the cycle of the moon. We fulfill this mitzvah by occasionally adding an extra month to the year – thereby creating 13 month years, which we call “leap years,” to offset the almost 11 day difference between twelve lunar months and a solar year. These extra months keep the Yomim Tovim in their appropriate seasons.

When we add an extra month to the year, we add four and sometimes five Shabbosos to the year, yet we want each calendar year to complete the entire Torah reading on the next Simchas Torah! In order to have a reading for every possible Shabbos, we need to divide the Torah into enough parshiyos so that even the longest year has a parsha for each Shabbos. Since a Jewish leap year may contain 55 Shabbosos, Chumash is divided into a total of 54 parshiyos so that there is always a parsha to read every week. (There are 54 parshiyos, and not 55, because we do not read a consecutive Torah parsha on the Shabbos that occurs during Pesach. Although this is also true on Sukkos, remember that on Simchas Torah we read Parshas Vezos Haberacha, which is one of the 54 parshiyos, so Sukkos does not eliminate the need for a parsha that week.)

To sum up, the reason for dividing the Torah into 54 parshiyos is so that there are enough parshiyos for every Shabbos of the yearly cycle that begins and ends on Simchas Torah. In reality, the need for reading each of the 54 parshiyos on a different Shabbos occurs very rarely – only on leap years when Erev Pesach falls on Shabbos. Only that particular year has 54 Shabbosos that do not coincide with any Yom Tov dates (or more accurately, 53 Shabbosos plus Simchas Torah).

Why do we “double” Parshiyos?

Since most years require less than 54 parshiyos, how do we make sure that we complete the Torah reading for the year on Simchas Torah? The answer is that we combine parshiyos.

In almost every occurrence of a common year, we double the following parshiyos: Tazria/Metzora; Acharei Mos/Kedoshim and Behar/Bechukosai. Why these three sets of parshiyos, all of which are in Sefer Vayikra?

Just as a leap year is created by adding an extra month to Adar shortly before Pesach, the parshiyos are not doubled until the month of Nisan. Thus, we do not add these extra parshiyos until the year is clearly a common year.

At this point we can answer the second question raised above: Why do we “double up” so many parshiyos in Sefer Vayikra?

The answer is that we do not double parshiyos until it is already obvious whether it is a leap or common year, yet we need to read the parshiyos in a way that we complete this process early enough to read Bamidbar before Shavuos. The above-mentioned parshiyos are not read until the beginning of the month of Nisan. Thus, we have a small window between the beginning of Nissan and the end of Sefer Vayikra in which we try to complete all the double parshiyos necessary.

Why did I write above “in almost every occurrence of a common year, we double these parshiyos“? Because there is one instance in which the parshiyos of Behar and Bechukosai are combined in Chutz La’aretz, but they are read on separate weeks in Eretz Yisrael. This occurs in a common year when the eighth day of Pesach, observed only outside Eretz Yisrael, falls on a Shabbos. The communities of the exile read a Yom Tov reading, whereas in Eretz Yisrael communities read Parshas Shemini, the next reading in order. In this instance, the communities of Eretz Yisrael must separate Behar from Bechukosai to avoid the Tochacha from being read the week before Shavuos.

Vayakheil/Pekudei

Almost, but not all common years, also combine together the last two parshiyos in Sefer Shemos, Vayakheil/Pekudei. There is one instance of a common year when this does not happen. When Rosh Hashanah and Shemini Atzeres fall on Thursday in a common year that has 355 days, a fairly rare occurence [and one of the instances of a common year when Erev Pesach falls on Shabbos], there is an extra Shabbos between Sukkos and the next Rosh Hashanah, and in this year Vayakheil and Pekudei are read on separate weeks even though it is a common year.

I still have not explained the answer to our first question: Why this year does Bamidbar fall out two weeks before Shavuos, rather than the week immediately before Shavuos.

The Longest Year

The answer is that whenever a leap year falls out with Rosh Hashanah on a Thursday, as it does this year, that year has an extra Shabbos. In this instance, the leap year added five shabbosos to the year. The result of having no double parshiyos in these years between Simchas Torah and Rosh Hashanah is that both Bamidbar and Naso fall before Shavuos.}

Conclusion

We now understand what the printers and calendar makers have known all along: Why and when certain parshiyos are doubled and when not. All this is to guarantee that we have a chance to revisit every part of the Torah in the course of the year, and to celebrate our annual siyum haTorah on Simchas Torah!




More on Shatnez Laws

clip_image002In parshas Emor, we study about the unique role that the kohanim represented in Klal Yisrael. One of the unusual aspects of this role is that they wore the bigdei kehunah, which contained shatnez. Thus, that which otherwise would be prohibited, in this instance became a mitzvah. This provides an opportunity to continue our discussion of last week about the laws of shatnez, and yet still discuss a halachic theme related to the parsha.

Question #1:

Does wool felt sewn to linen present a shatnez concern?

Question #2:

What are reprocessed fibers, and do they present a shatnez problem?

Question #3:

Does a “sheepskin” blanket present a potential shatnez concern?

In the previous article, we discovered that the prohibition of shatnez exists only if the garment is made from a blend of sheep’s wool and linen, but that wool of other species, such as camel, llama, rabbit, or goat is not shatnez .Thus, a garment made of a blend of linen and either mohair or cashmere is not shatnez, since neither mohair nor cashmere are made from sheep’s wool, but from the hair of goats!

At this point, I want to mention an e-mail I received in response:

“You mentioned in the shatnez article that linen and non sheep wool such as cashmere or mohair are not an issue.
“I would strongly qualify that such a statement is true halachically but is not accurate in today’s textile world!! Sheep wool is much cheaper than cashmere and mohair and companies almost always blend them together. For advertising purposes, they often write ALL CASHMERE or ALL MOHAIR in big letters, but write “with wool” (in small letters) to fool consumers — but it is usually mostly sheep wool and is shatnez!
“Even if it would be a 100% cashmere coat, (which, by the way, costs over $2000) it still needs checking because labels never include the ingredients of internal components which could be both wool and/or linen that are not botul!!
“The consensus among the rabbonim in the vaad shatnez both here and in chutz L’aaretz is to tell  people that cashmere, mohair, alpaca (camel) and angora (rabbit or goat) wool does require checking as this advice prevents mistakes.

“Kol Tuv!”

Rav Yaakov Gurwitz
“Mishmeret Nosson” Shatnez Laboratories
Yerushalayim
rygur38@hotmail.com

Tel: 0526-334417

I now return to our article:

Another fact that we learned is that when a thread is spun from a mix of fibers, the halachic status is determined by what composes most of the fiber content, and ignores the existence of other fibers inside the thread. The minority is halachically bateil, or nullified, to the majority fiber content in the thread. Thus, threads spun from a mix of mostly cotton fiber with some linen fiber are considered cotton, and can be used lichatchilah in a woolen garment. Similarly, a garment consisting of threads made of a blend of mohair that is spun with some sheep’s wool fiber, which is woven or sewn with linen threads, is not shatnez. However, a thread of linen that is woven or otherwise attached into a woolen garment renders the garment shatnez, and there is no bitul and vice versa, a single sheep’s wool thread in a linen garment renders the entire garment shatnez.

And now for some new “material”:

A thread is made of fiber that is combed and then spun. However, not all material is made this way. For example, wool felt, a material often used in shoulderpads, underarm material, the neck backing of suits, and other places that require sturdiness or strengthening, is made of combed wool that is pressed, but not spun into thread. Is there any difference in regard to the laws of shatnez between spun wool thread and pressed wool felt?

Many authorities contend that the Torah-level prohibition of shatnez applies only to spun threads, but not to fiber or material that was never spun (Tosafos, Niddah 61b s.v. Shu’a). Following this approach, wool felt sewn with linen thread is shatnez only miderabbanan (on a Rabbinic level).

The Shach (300:1) concludes that this approach is accepted by most authorities, and that, furthermore, this is prohibited only in the instance of soft material. Thus, he concludes that stiff material made of wool felt combined with linen is not shatnez, even miderabbanan.

According to the Shach, then, a non-wool suit with shoulderpads made of wool felt sewn with linen thread is shatnez, but only miderabbanan. One would still need to replace the linen thread, the shoulderpad, or both to remove the shatnez from the garment.

Another application of this halachah: An ornament on a garment that should be shatnez-free was attached to a linen fabric that was in turn attached to a wool felt backing. The ornament itself is shatnez, albeit according to the Shach only miderabbanan. The ornament can be removed or replaced and thereby make the garment shatnez-free.

Another interesting case in which a garment may contain tufts of wool and linen threads and not be shatnez is if one takes a sheepskin (occasionally used as a very warm blanket) containing sheep’s hair, which is raw wool, and sews it with linen thread. It does not present a Torah-level prohibition of shatnez, because the wool has not been processed to the necessary stage to pose a problem.

Reprocessed Fibers

Many garments, particularly quilts and other bedding, contain “reprocessed fibers,” which is a nice way of saying that used clothes (also known as shmattes) were chopped up and used as stuffing. One can never know for certain what material is included in the reprocessed fibers. Are they automatically prohibited because of shatnez?

This actually depends on two factors:

Are the “reprocessed fibers” actual threads?

Are they sewn or glued into the garment or simply pressed together and inserted.

If the reprocessed fibers are threads and are sewn or glued into the material, the entire garment may be shatnez, at least according to the Rambam, because the “reprocessed” material includes threads of wool and threads of linen that have both been sewn into the same garment. If there are linen and woolen threads sewn together at any point, it is shatnez according to all opinions. If the wool and linen does not touch, but are in different parts of the garment, then the garment is shatnez according to the Rambam, but not according to the Rash. Rav Chayim Kaniyevski quotes in the name of the Chazon Ish that one could permit this clothing on the basis of a sefek sefeika: It is possibile that this garment does not contain both wool and linen, and even if it does contain both, the stitching may not have attached the wool to linen, in which case it is permitted according to most authorities (Derech Emunah, Hilchos Kilayim, 10:2 Biurei Halacha s.v. Levadim). Although he concludes that a G-d-fearing person should avoid use of this heter, he concludes that one may use a mattress stuffed with reprocessed fiber, since lying on shatnez is permitted min haTorah, and is prohibited miderabbanan only on soft items. The same rationale permits using baseball gloves, which are also usually stuffed with reprocessed fibers, since the rawhide surface of a baseball glove does not provide any warmth to the hand. Therefore, even yarei shamayim baseball players may continue to use their gloves.

We will continue our discussion on Shatnez in a future article.




Some Shatnez Basics

clip_image002Question #1:

I keep reading about shatnez showing up in strange places: ladies sweaters, children’s clothes, and even baseball gloves. Am I required to take my family’s entire wardrobe to a shatnez laboratory to have everything checked?

Question #2:

“What does a shatnez tester look for?”

Question #3:

“The importer told me that the garment was made from a blend of hemp and wool, which should involve no shatnez concern. As there was no authorized shatnez tester in town, I did what I thought was the next-best thing – I brought the garment to a local observant tailor, to have him check it. He carefully checked the threads and guaranteed me that the garment contained no linen. Only after I wore the garment many times did I meet a great Torah scholar and mention this incident in passing. The talmid chacham told me that I should not be so certain, and he offered to compare the material in my garment to linen threads he had available. And indeed, it was clear that he was correct. The threads in my garment were made from wool and linen, not hemp, and I had been violating a Torah prohibition the entire time!”

Does this story sound contemporary and familiar? As a matter of fact, this story happened in 1650 in the city of Vilna — twenty years before the Dutchman van Leeuwenhoek invented the microscope. In those days, the only “scientific” means of checking whether a material was linen or hemp was to take a sample and see if a candle would get it to burn, since hemp is more flammable than linen (Rama, Yoreh Deah 302:2). Others opposed the reliability of this test (Piskei Teshuvah 302:1, quoting Shu”t Penei Yehoshua).

Thus, we see that shatnez problems are not exclusively a result of modern manufacture. However, in modern clothing one may find shatnez in everything from sweaters and skirts to scarves; and from bedding and button loops to baseball gloves.

Before delving into contemporary questions, we must first understand some of the laws taught in this week’s parsha. The prohibition of shatnez exists only if the garment is made from a blend of sheep’s wool and linen, but that wool of other species does not make shatnez. Thus, wool made of camel’s, rabbit’s or goat’s hair mixed with linen is not shatnez (Mishnah, Kilayim 9:1; see Rambam, Hilchos Kilayim 10:2). (“Wool” is simply hair that is soft and can be used as cloth.) The Mishnah (Kilayim 9:2) records that certain combinations, such as silk and wool, were prohibited because of maris ayin, since this raises suspicion or may be misinterpreted that someone is wearing shatnez. However, the Rishonim already conclude that this concern exists only when the material that may be confused with wool or linen is not commonly obtainable, but that no prohibition of maris ayin exists once people become familiar with its availability (Rosh, Hilchos Kilayim).

Most people are surprised to discover that a garment made of a blend of linen and either mohair or cashmere is not shatnez! Why is this? Because neither mohair nor cashmere are made from sheep’s wool, but from the hair of goats! Mohair is processed from the hair of an angora goat. Although goats of this variety are now raised around the world, originally they were developed in Turkey. (The current capital of Turkey, Ankara, used to be called Angora.)

Cashmere is the wool of the Kashmir goat, which was originally native to central Asia, as its name indicates. Thus, if no sheep’s wool thread was mixed into the mohair or the cashmere, the existence of linen in the garment will not make it shatnez.

The Majority Rules

By the way, a garment could contain both linen and sheep’s wool and still not be shatnez! How could this be?

When a thread is spun from a mix of fibers, the halachic status of the thread is determined by what composes most of the thread’s fiber content and ignores the existence of other fibers inside the thread (Mishnah Kilayim 9:1). The minority of fiber is halachically bateil, or nullified, to the majority fiber content in the thread. Thus, threads spun from a mix of mostly cotton fiber with some linen fiber are considered cotton and can be used lichatchilah in a woolen garment. Similarly, a garment consisting of threads made of a blend of mostly mohair but including some sheep’s wool fiber that are woven or sewn with linen threads is not shatnez and may be worn.

Here is a very practical example of this case – in a dress that was tested recently in a shatnez laboratory.

A knit dress whose content label listed 70% wool and 30% silk, which should not be a shatnez problem, was brought to a shatnez checking service. However, the tester noticed that the front panel of the dress was made of thread that was a blend of linen and cotton fibers. If the cotton is the majority, there is no halachic problem with this garment, since this would be considered a cotton thread. However, if the majority component of the threads is linen, the garment is shatnez.

Here is another recent case where the halacha is more complicated:

The label of a sweater brought to a shatnez checking service accurately described its content as: 28% viscose, 20% nylon, 15% lamb’s wool, 15% cotton, 10% polyester, 6% metallic fiber, 3% cashmere and 3% angora. A decorative cloth ornament, whose content was not included on the label, was sewn onto the sweater. The shatnez checker tested the ornament and discovered that it was made of a blend of linen and cotton, where linen was the majority. Thus, the decorative fabric was halachically considered linen, and the material of the main sweater included wool. However, it is possible that there is no shatnez problem here because the wool in the sweater fabric was a minority component. Thus, although there was both linen thread and wool fiber in the garment, it would not be shatnez.

Why did I say only that “it is possible that there is no shatnez problem?”

The authorities dispute whether shatnez exists when there is noticeable wool fiber in a thread which is mostly made from a different fiber. The Rosh (Shu”t 2:5), Mishnah Rishonah and Tiferes Yisrael (both to Kilayim 9:1) consider this shatnez, since the wool is noticeable; whereas the Chazon Ish (Yoreh Deah 181:9) rules that this is not shatnez, contending that the definition of a thread is its majority component, and that the minority wool component of the thread is bateil. In the case at hand, the wool may be noticeable in the thread, since there is a sizable amount of lamb’s wool in a blend that contains many very non-wool type fibers. It may indeed be that according to the Rosh the wool is not bateil in this case, and that this sweater is therefore shatnez. On the other hand, according to the Chazon Ish, since most of the fiber in the thread is not wool, the wool component of the thread is bateil.

Hanging by a Thread

Linen or wool fiber is bateil only as fiber. However, a thread of linen that is woven or otherwise attached into a woolen garment renders the garment shatnez, and there is no bitul (Rosh, Hilchos Kilaei Begadim #5 quoting Tosefta; Shulchan Aruch, Yoreh Deah 299:1). Even a single linen thread in a large woolen garment renders the entire garment shatnez. In addition, if a spun thread is mixed into a larger thread, then there is a shatnez problem min haTorah even if there is only one linen thread in a large garment.

This distinction is extremely important, as we see from the following case:

A 100% pure wool sweater contained a long green thread knotted into its seam. The green thread consisted of a cotton braid, which was not mentioned on the label, but should not present any problem either. However, the core of the cotton braid contained a linen thread. Thus, the 100% pure wool sweater contained a linen thread. (We will soon see that according to many authorities this particular sweater was not shatnez for a different reason.)

What if they do not touch?

If a garment contains wool thread on one side and linen in a different place — so that the wool and linen do not touch, is the garment shatnez?

This issue is disputed by the Rishonim. The Rash (Kilayim 9:1, 9) one of the early Baalei Tosafos, (this is Rabbeinu Shimshon, author of the Tosafos commentary to Zera’im, Taharos, Pesachim and Kesubos, and should not be confused with the more frequently quoted Rosh, Rabbeinu Asher, who also authored commentaries on the Mishnah, Gemara and Halacha, and lived somewhat later than the Rash), rules that shatnez requires that the linen and the wool actually touch, but that one is permitted to wear a garment containing wool and linen threads that are on different parts of the garment. According to the Rash, the prohibition of shatnez is that there is a “combination” of wool and linen, but this is avoided when the wool and linen are separated by other materials.

Based on this Rash, a common custom was to attach a linen atarah to a wool talis by having cotton cloth act as the “mechitzah” between the wool and the linen.

However, the Rambam rules that wool and linen threads on different parts of a garment constitutes shatnez min haTorah. In his opinion, the Torah prohibited a garment containing both wool and linen, even if the linen and wool themselves do not touch. Thus, according to the Rambam, the separating cotton does not change the garment from being shatnez, and wearing the above-mentioned talis is a mitzvah habaah be’aveirah.

Similarly, whether the wool sweater with the cotton green thread containing a core that is a linen thread is shatnez or not is dependent on this dispute between the Rash and the Rambam, since the linen thread does not touch the wool but is surrounded by cotton. According to the Rambam, wearing this sweater involves a Torah prohibition of shatnez, whereas according to the Rash, it is permitted!

How do we rule?

The Shulchan Aruch (Yoreh Deah 299:2) rules like the Rambam that a garment is shatnez even if the wool and the linen threads are separated by other materials. Thus, Sefardim, who follow the Shulchan Aruch’s rulings, are certainly prohibited from wearing this sweater. Among Ashkenazi authorities, the Rosh, the Rama  (Yoreh Deah 299:2), the Magen Avraham (9:8) and the Eliyah Rabbah (Orach Chayim 9:6) rule like the Rash, whereas the Mishkenos Yaakov (Yoreh Deah Shu”t #70) Shenos Eliyahu (9:1)[1], Artzos Hachayim rule like the Rambam. I note that Rav Chayim Kanievski notes that the prevalent practice is to rule like the lenient opinion (Derech Emunah, Hilchos Kilayim, Hilchos Kilayim 10:41).

What have we learned so far?

1. We have learned that shatnez exists only when there is sheep’s wool, but not when the wool is from other species, and that therefore pure cashmere or mohair blended with linen is not a shatnez concern.

2. We have also learned that some testing for shatnez existed even before the microscope, but there was halachic controversy concerning whether one could rely that this testing is reliable.

3. In addition, we have learned that threads spun from a mix of cotton and linen fibers are considered cotton and when blended in a woolen garment are not shatnez. However, threads of linen woven into a garment that is a cotton/wool blend is shatnez, even when the blend is mostly cotton thread.

What have we not yet learned?

1. Are baseball gloves a shatnez problem?

2. Which garments must be checked for shatnez.

3. How a shatnez tester works.

To answer these and other shatnez questions, we will need to read a future article.


[1] We should note that in his notes to Shulchan Aruch (299:8), the Gra, who also authored Shenos Eliyahu, appears to accept the Rash‘s approach.




Observing a Colorful Lifestyle

clip_image002This week’s parsha describes how master artisans used three dyes, techeiles, argaman, and tola’as shani, in the manufacture of the Kohen Gadol’s vestments. These colors were also used to produce the curtains and coverings of the Mishkan, and the halachic conclusion is that these dyes are also used for dyeing the kohen hedyot’s belt (see Rambam, Hil. Klei HaMikdash 8:1, 11, 13, based on Yoma 6a, 12a). In addition, processing the ashes of the parah adumah (Bamidbar 19:6), purifying a metzora and decontaminating a house that became tamei all use tola’as shani (Vayikra 14:4, 49). As we will discover, correctly identifying the tola’as shani not only affects these halachos and those of the Beis HaMikdash, but also concerns a wide assortment of foods and beverages that we eat and drink.

At one point in my life, when I worked as a "rabbinic field representative" (aka  a mashgiach), I once made a surprise inspection of a company that produced juice drinks – let’s call it Generic Juices Inc. I was surprised to discover that the plant was bottling beverages containing carmine red coloring, and other drinks colored with enocianina, a coloring derived from grape skins. Neither of these products was on the lists of approved ingredients, and for good reason. Of course, this created a serious problem for the hechsher, the company, and most of all, the unsuspecting consumer.

Whether we like it or not, many of our foods are colored with a host of coloring agents; some derived from food items, such as beets, berries, sugar (caramel coloring), turmeric and annatto; whereas others are derived from inedible materials such as coal or petroleum, whose sources most consumers would prefer to ignore. Although processing colorants can compromise the kashrus of the finished product, few food colors are themselves obtained from non-kosher materials. However, two common food pigments originate from non-kosher substances: One is carmine red, also called cochineal, which is a very common color used to color fruits, yogurts, juice drinks, maraschino cherries etc., and the other is enocianina, colloquially often called simply eno, a red or purple color similarly commonly used in beverages, fruit fillings and confections. The origin of carmine is from a scale insect — I discussed the kashrus ramifications in an article that I sent out on Parshas Va’eira Suffice it to say that almost all kashrus organizations treat carmine color as non-kosher.

ENO – A GRAPE SKIN EXTRACT

After the juice has been squeezed out of the grapes, the remaining skin pulp is processed into a commercial coloring agent called enocianina. Although one could produce kosher eno from kosher-processed grape skins, grape skin color available today is almost always produced after the grapes have become non-kosher and thus we usually assume that eno is not kosher. However, the prohibition here is only the rabbinic prohibition of stam yeinam, grape juice and wine product handled by a gentile.

GENERIC JUICE DRINKS

Unfortunately, Generic Juices had already produced and shipped tons of product using either carmine or eno – and all of it bearing the kosher certification symbol on the label! Is the kashrus agency halachically required to insist on a recall of the product from the supermarket shelves?

RECALL

Companies hate having their products recalled, both for technical reasons, the major expense involved, and because it is a public relations nightmare. The policy of this particular hechsher was not to require the company to recall the product unless the product could not be used even after the fact, bedei’evid. However, if the product would be kosher be’dei’evid because of bitul, the hechsher would not require that the product be recalled. It was now the responsibility of the hechsher’s poskim to decide whether the product is prohibited or permitted after the fact.

Why should the finished product be kosher if the colorant added was not?

The basis for this question follows:

Coloring agents are used in very minute amounts. Indeed, when the Spaniards discovered carmine red, they sold the concentrated powdered pigment at a higher price per ounce than gold! Thus, the amount of coloring used to color a juice drink or maraschino cherry is significantly less than the amount that we usually say is bateil (nullified) in a finished product. Although one may never add treif product to a food and rely that it will become bateil, if non-kosher product was inadvertently added in minute quantities the finished product is usually permitted.

The primary criterion to determine whether the treif food is bateil is:

Can the non-kosher product be tasted, either because of its quantity or because it is a flavoring agent?

This test is passed with flying colors! None of these colors can be tasted in the finished product.

However, there is another criterion:

Is the treif product noticeable?

If one can see a treif ingredient floating inside a food, one may not consume the food without first removing the non-kosher item.

COLORS ARE NOTICEABLE

The boldness of a color announces its existence. Can we say that a color is bateil when we clearly see evidence of its existence?

Several great halachic authorities discuss this question, reaching widely different conclusions. Some prohibit consumption of the resultant product precisely because one can notice its existence (Pri Megadim, Mishbetzos Zahav 100:1; Minchas Kohen, Sefer HaTaaroves 3:3, quoted by Darkei Teshuvah 102:30). They contend that bitul can only happen when the offending item leaves no trace. A colorant is by definition very noticeable and therefore not bateil. According to this approach, all of the juice drinks mentioned must be recalled since the non-kosher ingredient is very noticeable.

On the other hand, the Vilna Gaon argues that determining whether the food is kosher depends on whether one can taste the treif ingredient (Yoreh Deah 102:6). In our instance, although the color is noticeable, no one tastes the colorant, and therefore the finished product is permitted, assuming that the admixture was made in error. An earlier authority, the Minchas Yaakov (74:5), also espouses this position.

A COMPROMISE POSITION – IN WHOLE CLOTH

Some authorities concluded a position between these two positions, comparing our question to a Gemara that discusses whether someone who stole dye and cloth and now returns the dyed fabric fulfills his mitzvah of returning what he stole. The Gemara rules that this depends on whether the dye is considered to still exist after it has been used because its color is still noticeable (Bava Kamma 101a). Is the color on the cloth treated as if the dye itself still exists, or did the dye become bateil and no longer exists?

The particular issue in that Gemara remains unresolved, and therefore halachically is considered an unresolved doubt, a safek (Shu”t HaRan #70). Based on this discussion, several prominent authorities contend that a colorant that may involve a Torah prohibition is prohibited, because of the principle of safek de’oraysa lechumra, we rule stringently in a question involving an unresolved Torah issue; whereas one that involves only a rabbinic prohibition is permitted because of safek derabbanan lekula, we are lenient regarding an unresolved question involving only a rabbinic prohibition (Pri Chodosh, Yoreh Deah 102:5; Chasam Sofer, quoted by Darkei Teshuvah 102:30).

CONCLUSION

By this time, I presume most readers want to know what the hechsher did. The deciding posek ruled like the last position mentioned, and contended that the carmine coloring might be prohibited min haTorah and therefore the company must recall the beverages containing carmine. Since the grape skin extract only involves a rabbinic prohibition, he did not require the company to recall this product, contending that according to most authorities this product may be drunk since the eno is nullified in the final mix.

We should always pray that the food we eat fulfills all the halachos that the Torah commands without resorting to any controversial shaylos.