The Contemporary Kosher Bakery and Its Halachic Issues, II
In a previous week, I sent out an article that dealt briefly with many of the issues germane to providing kosher supervision at a bakery. This article will discuss in more detail a very common problem: the necessity and difficulty of separating challah in a commercial enterprise.
The Torah describes the mitzvah of challah in the following passage:
Upon your entering the land to which I am bringing you, when you eat from the bread of the land, you shall separate a terumah offering for G-d. The first dough of your kneading troughs shall be separated as challah, like the terumah of your grain shall you separate it (Bamidbar 15:18-20).
According to Torah law, any dough kneaded in Israel made from the five grains (wheat, barley, spelt, rye, and oats) in an era when most Jews reside there must have the challah portion separated and given to a kohen. Today this portion is burned, as I will explain. If the dough mixed has less than an “omer” of flour, equal to the amount of manna each Jew received as his daily portion in the desert, there is no requirement to separate challah. Contemporary authorities estimate an omer to be equal to somewhere between three and five pounds of flour. Accepted practice is to separate challah without a bracha from a dough of between three and five pounds of flour, and with a bracha from a dough that is larger. We treat the former case as a situation of a safek – a doubt as to whether there exists any requirement to separate challah. Therefore, we separate challah, but omit the bracha, a principle called safek brachos lehakeil, because we are uncertain whether there is a requirement to fulfill the mitzvah.
The Torah does not establish a minimum size portion that one separates for challah. The Mishnah records a rabbinically introduced minimum: If the dough is prepared for commercial sale, one should separate 1/48 of it, and if it is meant for private consumption, one should separate 1/24 of the dough. This challah portion is given to the kohen, to be eaten by him and his family in purity. Many opinions state that the sages established a minimum portion only for an era when the challah would be eaten by the kohen and his family. Since today we cannot achieve the status of taharah, purity, that would allow the eating of challah, the challah portion is burned and not eaten, and therefore, according to these opinions, the law reverts back to the Torah requirements, and no minimum size portion is required. Rema states that the Ashkenazic practice is to follow these opinions, but adds that the custom, according to the Maharil, is to separate a kezayis, the size of an olive, as a minimal portion.
There is a requirement to separate challah from dough that is kneaded outside of Israel. Halachic authorities are explicit that this requirement is if the dough is owned by a Jew, but not if it is owned by a non-Jew. Therefore, if a Jewish-owned business has non-Jewish employees handling production, there is still a responsibility to separate challah. Conversely, if a non-Jewish-owned business has Jewish employees handling production, there is no requirement to separate challah.
The obligation to separate challah often creates difficulties for a kosher bakery. If the bakery employs Shomer Shabbos staff, the responsibility to separate challah can be delegated to those employees. However, a bakery that has no Shomer Shabbos individuals on the premises presents a predicament. Granted that any Jew can actually separate the challah portion, the halacha stipulates that a Shomer Shabbos must ascertain that challah was, in fact, separated. In many communities, hiring a Shomer Shabbos for this task would make the cost of kosher supervision prohibitive, and other solutions must be found.
Jewish communal leaders have sought a variety of solutions to this problem. Many rabbonim assume responsibility only for the ingredients, but advise the consumers to separate challah themselves, after purchase. Although this practice is very widespread, the stumbling block for people who do not realize that challah must be separated is a serious concern, since people often do not remember or realize that they must separate challah every time they purchase.
Another approach that I have seen is for the non-Shomer Shabbos staff to separate challah from each dough. These challah portions are set aside and periodically checked by the mashgiach. Personally, I find this approach less than satisfactory. There is much room for error, as it is impossible to ascertain that challah is, indeed, always being separated.
Still another approach sometimes used is to arrange a “sale,” whereby a non-Jew owns the flour, and the Jewish-owned company acts as a contractor to process the flour into baked goods. The method for such a contract would be similar to the selling of chometz for Pesach. However, many authorities do not approve this use of heter mechirah. Granted that usage of such a sale has become accepted among Jewry to avoid the prohibition of owning chometz on Pesach and for a few other halachic issues, it is difficult to extend this leniency into an area that poskim have never recommended or advised.
Another solution that might come to mind is to separate challah once from each shipment of flour. However, the Mishnah in Challah states, “If one attempts to separate his challah portion while it is still flour, the challah does not take effect, and it would be considered stolen property in the hands of the kohen.” Since there is no requirement to separate challah before the flour is mixed with water, it is meaningless to take challah before making the dough, and the portion given to the kohen is not his property and must be returned.
However, there is a solution, based on the writings of the Tur and the Smag, who quote the opinion of Rabbi Eliezer of Metz that although challah cannot take effect when separated from flour when one intends it to take effect immediately, challah can be separated from flour with the intention that it take effect when the flour becomes dough. The rationale for this opinion is as follows: There is a halachic principle that a contract of procedure can be set up to take effect later, if conditions exist whereby the procedure could already be implemented. For example, A can sell an item to B and delay the sale to a future date, provided that A already owns the item. Since A has the legal right to sell the item now, he is able to delay the day of sale. Similarly, one could separate the challah from flour, intending it to take effect when it becomes dough, since he is already able to mix the flour with water and create the responsibility of challah-separating. Of course, the challah would not take effect until the dough is mixed. For this procedure to work, certain circumstances need to be met.
The Gemara that serves as the basis for Rabbi Eliezer’s reasoning expounds on how terumah can be separated in this fashion.
The Mishnah says that since there is no requirement to separate terumah before harvesting, one cannot separate the terumah portion from grain that has been cut, with the intention of fulfilling the requirement of separating terumah for grain that is still connected to the ground. If he attempted to do so, the terumah-separating has no effect. Rav Asi (post-Mishnah era) asked Rav Yochanan, “Is the separating of terumah valid if one makes the following declaration: ‘The unharvested fruits of this furrow should be terumah when cut, for the cut fruits of the next furrow?’”
Rav Yochanan responded, “As long as a person can create the responsibility for terumah, he would be able to set that procedure in motion.”
Rav Asi’s uncertainty was based on the following question: Ordinarily, one cannot set up a procedure to take effect later unless he is able to perform that procedure now. In this instance, one cannot separate terumah on produce still connected to the ground.
However, one could cut the grain and then separate terumah. Is this considered having the ability to perform the procedure immediately? To this question, Rav Yochanan responded literally, “Anything that a person can perform himself is not considered as lacking that action.” Whenever a person can create the responsibility to perform a certain action, we can treat it as if the situation already existed.
Based on this discussion, Rabbi Eliezer of Metz reasons that the same principles apply to the separating of challah. If one separates challah from flour, intending for the challah to take effect when the flour is mixed into dough, the challah-separating would be valid.
This opinion of R Eliezer is codified in the Shulchan Aruch as follows:
If one attempts to separate his challah portion while it is still flour, the challah does not take effect, and it would be considered stolen property in the hands of the kohen… All this is true when he wants the challah to take effect immediately. However, if he separated flour and said that challah should take effect when the flour is mixed into dough, then the challah does take effect…
The principle of Rabbi Eliezer of Metz can now be applied to a moderately different set of circumstances. If one were to remove a kezayis from a dough that still bears the responsibility for challah-separating and specifies that this kezayis will become challah for a different, as yet unmixed, dough, the challah-separating will become valid when the second dough is kneaded. Since one could knead the second dough immediately and create the requirement to separate challah, he can set in motion a procedure that will cause the challah to take effect automatically.
Let us further extend the circumstances. If one were to remove a sampling from a dough that still required challah-taking and specify that an additional kezayis of this sampling become challah for every dough that will be mixed in the course of the day, the challah will automatically be considered as being separated as each dough is prepared, provided that following six criteria are met:
Challah must be taken min hachiyuv, from that which bears the responsibility of challah-taking, i.e., the sample of dough being designated as challah must have an as-yet-unfulfilled responsibility (chiyuv) at the time. Challah cannot be taken min hapatur, from dough that does not bear (or no longer bears) the responsibility of challah-taking.
This principle has the following specific applications.
- The dough from which the challah sample is separated must contain sufficient flour for it to be definitely chayov in challah; i.e., it must contain at least five pounds of flour.
- The requirement to separate challah from that dough must still be unfulfilled. If challah was already separated from this dough, then the dough now has the status of patur – that which is not currently obligated in challah-separating — and a challah sample separated from it would have the status of min hapatur.
- The challah sample must contain a kezayis of dough for each dough to be kneaded later. Each mixing of dough creates another automatic challah-taking, and each challah-taking requires another kezayis, according to the Rema mentioned above.
- All dough whose challah requirements are being met by this challah sample must be kneaded before the sample of challah is burned. Since the challah-taking takes effect when the dough is mixed, the sample must still be extant for the challah to take effect.
- This challah-taking will be valid only for flour already owned by the bakery at the time that the challah portion is separated. Since the owner cannot create the chiyuv of challah on that which he does not own, arranging an automatic challah-taking for flour he does not possess is the same, halachically, as creating a contract for something not in one’s possession.
- If the bakery bakes any breads from pure rye, barley or oat flour, or from dough that is made mostly of rye, barley or oat flour, separate challah samples must be taken from wheat dough and from rye dough. Although a challah sample taken from a wheat dough can remove the requirements for challah from all varieties of wheat or spelt, it cannot accomplish the mitzvah of challah for rye, barley or oats. (Similarly, a challah sample taken from rye dough cannot accomplish the mitzvah of challah for wheat dough.)
- The challah being taken should be adjacent (mukaf) to the rest of the dough for which the challah is being taken. The definition and basis for mukaf is explained below.
In several places, the Mishnah mentions the requirement to take terumah and challah min hamukaf, from an adjacent area. Although lechatchilah one is required to take challah and terumah from adjacent areas (which Rashi, Sotah 30, says is based on a Torah verse), be’dieved one fulfills the mitzvah also when taking from non-adjacent areas, and there is no need to take challah or terumah a second time.
What are the criteria of mukaf? The Rambam states:
One can take terumah only from adjacent areas. For example: if there were 50 measures in one house, and 50 measures in a different house, one cannot take two measures of the production in one house as terumah on the entire 100 measures, because that is considered taking terumah from non-adjacent areas. If one did take from non-adjacent areas, the terumah is still valid… Fruits that are scattered throughout a house or two piles of produce in one house, can have terumah taken from one group on the entirety. Sacks of grain or of dried figs or barrels of dates that were piled in a circle can have terumah taken from one sack for all the produce. Terumah may be taken from one barrel of wine to include several unsealed barrels. If the lids are sealed, terumah must be taken from each barrel, independently.
The exact definition of adjacent areas remains ambiguous. The Vilna Gaon explains that there are three separate sets of conditions that can constitute adjacency:
- Produce that is not in any vessel is considered mukaf if all of it is located in the same building.
- Produce in a container that is open on top requires that the containers be near one another to be considered mukaf.
- If the containers holding the produce are completely closed, mukaf is limited to the produce held in each container. Produce in different containers are not mukaf, even if the containers are near one another.
It should be noted that many halachic authorities are of the opinion that the requirements of mukaf for challah are more stringent than those delineated by the Rambam for terumah. However, it is evident that the Shulchan Aruch and the later commentaries are of the opinion that challah and terumah have the same criteria for mukaf. Therefore, the above criteria used by the Rambam for terumah would also be valid for challah. We have quoted the Shulchan Aruch that concludes that a portion of dough can be made into challah for other flour, when that flour is mixed into dough. Rabbi Akiva Eiger poses an intriguing query. Is the criterion of mukaf met if, at the time that the dough is mixed, the challah is no longer adjacent to it? Rabbi Akiva Eiger explains the requirement for mukaf exists at the time that challah is separated and not that at the time that it takes effect. Since the flour and dough were adjacent at the time that the challah was separated, the qualifications for mukaf have been met.
The solution that Rabbi Akiva Eiger offers will not satisfy our application of the principle of Rabbi Eliezer of Metz. When challah is set aside for many doughs that will be mixed later, it will be mukaf only if all the flour is adjacent at the time the challah is separated. An alternate way to accomplish mukaf would be to have both the challah portion and the newly-made dough adjacent at the time of kneading. A more practical recommendation is to have the challah take effect when the dough is cut and shaped, rather than when it is mixed. The reason for this is that since the mixing takes place inside a vessel, the above-mentioned criteria for mukaf require that the vessels be adjacent to one another. Since the shaping takes place on flat surfaces, it would be similar to the third category of the Vilna Gaon mentioned above, and the mukaf would merely require that the challah be located in the same building as the dough.
Conclusions for Challah Taking
According to what we have explained above, challah can be taken by separating a piece of dough from a mix that contains at least five pounds of flour and declaring that a kezayis of this portion should become challah for every dough that will be mixed, to take effect at the time the dough is cut. The following conditions must exist:
- Both the flour used for the challah portion and the flour which is having its challah requirement fulfilled must already be in the possession of the owner of the bakery.
- A kezayis (size of an olive) of dough must be separated for each dough to be included later.
- The challah taken must not be burned until the last dough is mixed.
- Challah must be taken separately for wheat and rye flour.
A study of the halachic source material indicates that methods do exist whereby challah can be taken in a practical and effective manner. Hopefully, this research will be of practical usefulness to Rabbis faced with these circumstances.
This article and its predecessor were written to serve two purposes. Firstly, to present the multi-faceted issues of kashrus and halacha pertaining to a “commonplace” hashgacha, which heightens awareness of the complexity involved in responsible supervision. Hopefully this increases appreciation of the efforts made to ensure proper kashrus standards. Secondly, this article explores avenues that can improve the standards in smaller Jewish communities. I have hopefully shed some light and suggested some possible solutions. Perhaps this will enable others to upgrade standards in less than ideal situations.