«Rabbi Zev Farber astutely commented to me last week in a different context that one cannot effectively produce extensive halakhic analysis only on ...»
Rabbi Zev Farber astutely commented to me last week in a different context that
one cannot effectively produce extensive halakhic analysis only on “the big issues”, let
alone only on ideologically charged issues. Rather, one must demonstrate broad and
profound concern with getting devar Hashem and ratzon Hashem right, and enabling klal
Yisroel to perform all mitzvot correctly, in order to be given halakhic authority, whether
as an individual or as a community.
I suggest further that open diversity of psak is an important measure of the halakhic health of a community. On some issues, of course, the community is formed by its adherence to particular rulings; it is hard to imagine Modern Orthodoxy, for example, including a psak against women’s study of Oral Torah among its live options. But with regard to issues of kashrut, Shabbat, shatnez, etc., while core values affect theory and implementation, there is much room for disagreement, and our community’s halls, tweets, and emails should be filled with milchamtah shel Torah (intellectual Torah battles) regarding them. This can only enhance our own respect for the process of Talmud Torah, and other communities’ respect for the outcomes of our process.
To that end, I am glad and honored to use this week’s email to open a halakhic dialogue with Rabbi Dov Linzer, Rosh Yeshiva and Dean of Yeshivat Chovevei Torah, with regard to a fascinating psak halakhah in a particular case that he told over in his weekly public email last week. (For Vaera-centered articles from previous years, please click here and here.) Owing to length and detail, sources and translations are included in the body text below.
I note up front that Rabbi Linzer’s psak addresses a topic that I have not previously studied in any depth. It should therefore be presumed that the answers to any objections I raise to Rabbi Linzer’s result may repose in sources that he saw but did not cite, as I am essentially just looking up his citations. Furthermore, there may obviously be personal or factual issues that I am unaware of that would support his psak. My comments are therefore limited to the psak as it is presented, factually and legally, in his email. Finally, I will not relate here to arguments presented that were not material to the final psak.
Here is Rabbi Linzer’s presentation, in relevant part:
This week I discussed with my Yoreh Deah students a practical kashrut question I had been asked just last Shabbat in shul. Someone came over to me and asked me the following question - he had marinated a 4 pound roast in wine, roasted it, and then discovered that the wine was not kosher. This was to be his Shabbat meal. What was the status of the roast?
So, I told him that the roast was not permitted. However, as I went to sit down, it occurred to me - what was he doing with non-kosher wine in his house? So I went back and asked him - was this really nonkosher wine, or was it just eino mevushal that had been handled by a non-Jew. He said it was the latter that it was eino mevushal that was left over from last shabbat, and the bottle had been opened, and his nonJewish babysitter had since been in the house. Well, I told him, that changed everything. In a case of eino mevushal wine, the concern is only that the non-Jew poured it, as it is impossible to stick one's finger down the neck of the bottle and touch the wine. Now, pouring wine only constitutes kocho, the force of the person, but not actual touching. We generally consider kocho like touching, but it really is less severe.
The base rule is that when non-mevushal wine is poured by a non-Jew, because of kocho, the poured wine is forbidden. But that is only the wine that was poured. Here the concern was for the wine that remained in the bottle. That - which was not affected by kocho, would only be forbidden on the basis that it was connected to the poured stream, a principle known as nitzok chibbur. Now it is a debate whether we say this principle by stam yaynam. While the Shulkhan Arukh rules this way (YD 125:1), Rema (ad. loc.) states that there are those who are lenient. Rema advises being strict unless we are talking about a case of great loss. The case of a 4 lb. roast for one's Shabbat meal should definitely qualify, so there is already a reason to be lenient based on not being strict for nitzok chibbur.
There is another reason to be lenient as well. Rema states in YD 124:24 that given that non-Jews nowadays are not true ovdei avodah zarah, and do not use wine for religious libations under normal circumstances, that we can be more lenient when they only touch the wine unintentionally or indirectly, and in such cases, when it is b'dieved and when there is a loss (or serious loss) involved, the wine does not become forbidden.
Now, kocho is even less severe than indirect touch, and the Shach in 125:2 states explicitly that b'dieved, in cases of loss, even not serious loss, we can be lenient in a case of kocho. This was clearly such a case, so I was able to tell him that the roast was permissible...
One more paragraph of qualifications before we get to the substance. In “real life”, I might think about a host of pastoral and factual questions not explicitly mentioned above: How wealthy is the person? What would they otherwise eat for Shabbat? Is any wine left in the bottle? What pot was this cooked in, and what was it eaten on/with the night before? How often does this kind of accident happen in this household? How will the household relationship to halakhah be affected by this psak? How will household relationships be affected by this psak? Is the babysitter aware of the issue? etc. But here I will address only the halakhic issues Rabbi Linzer presents..
As I understand him, Rabbi Linzer saw room for leniency based on the following
a) The concern here is not that the nonJew actually touched the wine, but only that s/he poured it. This is because the neck of the wine bottle is too narrow to allow a finger to reach down and touch the wine.
b) The roast was marinated in the wine that remained in the bottle after it was restored to Jewish supervision. Therefore it was not actually poured by the nonJew. As such, it is forbidden only via the principle of nitzok chibbur (prohibition travels upstream). RAMO records that some dispute the application of this principle to stam yaynam (wine ‘touched’1 by nonJews without obvious idolatrous intent), and concludes that one can rely on this lenient position in a case of hefsed merubah (great loss). Our case is one of hefsed merubah.
c) A nonJew pouring wine forbids the wine via the principle of kocho (applied force). Shakh YD 125:2 permits such wine in the event of hefsed (loss); he does not even require hefsed merubah (serious loss).
Addressing the first point requires me to first give some basic background on the issue of stam yaynam.
We assume nowadays, on the precedent of the Tosafists, that gentiles nowadays do not in fact pour libations to their gods. Thus the biblical category of yayin nesekh (wine dedicated to idolatry for libation) is presumptively inapplicable nowadays.
However, while stam yaynam is formally an extension of that category – we forbid it lest the Gentile may have dedicated it to idolatry while touching it – in practice it is applied even when there is no possible issue of yayin nesekh, and various rationales have been offered for the prohibition of stam yaynam that have no direct relationship to the concern about libation-dedication. The interplay between the formal nature of the law and its underlying purposes is intricate and a compelling object of study.
For our purposes, however, the key point is that the status of stam yaynam applies to any wine to which a nonJew has had unsupervised access for an extended period. The formal rationale for this is a concern that he may have done something to render it prohibited; here again, however, the formal rationale cannot be the real reason, as we treat the wine as definitely rather than possibly forbidden. Nonetheless, we do need to ask formally: What are we concerned has been done? If that concern is physically impossible, does the Halakhah change to reflect that impossibility?
Shulkhan Arukh Yoreh Deah 128:4 states the following:
– בית שאין בו אלא יינו של ישראל, ונמצא עובד כוכבים בתוכ.אם אין הדלת נעול, מותר בשתיה
- ואם הוא נעול במפתח מבפנים,אם אינו נתפס כגנב, אסור בהנאה.ואם הוא נתפס כגנב על הכניסה, מותר בשתייה :הגה,וי"א דבזמן הזה שאין העו"ג מנסכין, אפילו אינו נתפס כגנב שרי.('אלא א"כ יש לחוש שנגעו לשתות ממנו או להנאה אחרת )כך הוא בהגהות אשירי פ' השוכר ועיין ס"ק ד מיהו אם פי החבית רחב, או שהוא בקנקן, שיש לחוש שמא נגע בו דרך מתעסק - חיישינן )מרדכי.(פ' השוכר ובב"י בשם התוספות ובסמ"ג If an idolater is found in a house which contains only Jewish-owned wine – if the door is locked – the wine may be drunk.
But if the door is locked from the inside – if the idolater is not afraid of arrest for theft – all benefit from the wine is forbidden;
but if he is afraid of arrest for theft – the wine may be drunk.
RAMO (=Rabbi Moshe Isserles’ glosses):
Some say that in this time, when idolaters do not make wine libations - the wine is permitted even if he is not afraid of arrest for theft, unless there is room for concern that they touched it to drink from it or for some other benefit.
However, if the opening of the barrel is wide, or of the wine is in a pitcher, such that there is room for concern lest he touched it without thinking, we adopt that concern legally.
We will define “touch” somewhat more clearly later on.
The implication here is that we assume the worst – anything a Gentile could have done, assuming they have the run of the house licitly, we assume they have done. In the instant case, therefore, we should presume that the nonJew actually drank a drop of the wine, and so it is certainly prohibited. If that is so, the fact that the wine cannot be touched by a finger accidentally, which seems to be Rabbi Linzer’s point a), is irrelevant.
If this argument is true, I think it renders Rabbi Linzer’s other points irrelevant as well.
One might assume that since winedrinking is generally a violation of babysitting norms, we need not be concerned that the babysitter drank the wine – this is the equivalent of fear of arrest. But it seems to me that if we need to be formally concerned for pouring, we need to be formally concerned for drinking.
It is possible that Rabbi Linzer is referring instead to Shulkhan Arukh.124:14,
which reads as follows:
שולחן ערוך יורה דעה סימן קכד:יד.חבית שנטלה ממנו הברזא, והכניס בה עובד כוכבים אצבעו עד שנגע ביין - כולו אסור,וכן אם הוציא הברזא התחובה בנקב והיתה נוגעת עד היין.שא"א שלא שכשך :הגה,ודוקא כשידע שהברזא עוברת כל השולים אבל אם לא ידע - הוה ליה מגע עובד כוכבים שלא בכוונה על ידי דבר אחר, דמותר אפילו.(בשתייה )מרדכי פרק רבי ישמעאל והגה"מ פי"ב, ופשוט הוא, כדלקמן סעיף כ"ד, כמו שיתבאר לקמן,אבל אם אינה עוברת כל עובי השוליים, בעניין שאי אפשר לו לשכשך כשמוציא, הוי כמו כחו.ומה שנשאר בחבית מותר אפילו בשתייה, ומה שיצא אסור בשתיה :הגה,ואם הוציא שלא בכוונה, אף מה שיצא לחוץ שרי, דכח עובד כוכבים שלא בכוונה, שרי.ועיין לקמן סי' קכ"ה A barrel from the spigot has been removed, and an idolater inserted his finger (through the resultant hole) until it touched the wine – all the wine in the barrel is forbidden.
Similarly, if an idolater removed a spigot that was jammed into a hole and touched the wine – all the wine in the barrel is forbidden, as it is impossible that he did not stir.
This is the case only when the idolater knew that the spigot passed through the wall of the barrel, But if he did not know - this becomes a case of “unintentional indirect idolatrous touch”, which is permitted even to drink (as per 124:24 below).
But if the spigot does not traverse the whole thickness of the barrel-wall, so that it is impossible for the idolater to stir the wine as he removes it – this becomes a case of kocho (applied force), so what is left in the barrel is permitted even to drink, but what has left the barrel (as a result of the installation of the spigot) is forbidden to drink.
But if the idolater caused wine to leave the barrel unintentionally, even what has left the barrel is permitted, because unintentional kocho is permitted;
see below 125.
RAMO here apparently states that one can be lenient in a case of nitzok that is hefsed merubah. Wine poured from a bottle, but not directly touched, by an idolater is forbidden via kocho, but what is left in the bottle would only be forbidden via nitzok. Rabbi Linzer sees this as the proper rubric for our case.
Here some further basic background is necessary:
Jews are forbidden to derive any benefit from wine that has actually been dedicated to idolatry, and this prohibition is rabbinically extended to cover wine that might have been so dedicated. However, as noted above, the prohibition of stam yaynam applies even in cases where there is no concern for such a dedication. However, stam yaynam is only forbidden for Jews to drink; they may derive benefit from it in other ways, for example selling it to nonJews.