When do we Follow Minhag?

In continuation of last week’s article: there is a disagreement concerning bishul goyim – according to Sephardim, it is not enough for a Jew to light the fire before cooking * According to this minhag it is difficult to employ non-Jewish cooks * In disputes between ethnic minhagim, the ethnic minhag itself is not the sole consideration, but also minhag ha’makom * In Israeli society today, minhagim that are infrequently practiced lose their validity * The implication for bishulei goyim: l’chatchila, machmirim like the minhag of Sephardim; be’di’avad, one can be lenient like the minhag of Ashkenazim * In restaurants and public kitchens, Sephardim can be lenient, and therefore such places receive a standard kashrut certificate

Ethnic Disagreements Regarding Bishulei Goyim

Q: Rabbi, last week you dealt with the law of bishulei goyim (food cooked by a non-Jew), but you ignored the Sephardic minhag (custom) that even if a Jew lit the fire, the food is still considered bishulei goyim and forbidden to be eaten. The problem is that most of the Kashrut agencies are controlled by our Ashkenazi brethren and they are maykel (lenient) in this matter, and ignore the Sephardic minhag. How should someone who wants to follow his family’s Sephardic minhag act – can he eat foods with kashrut certificates of Rabbinates and Badatzim who rule according to the Ashkenazi minhag?

A: Indeed, there is a practical disagreement in this matter, and after clarifying this halakha from its source, I will try to further clarify the principle relationship to the halachic disputes between the minhagim of different ethnic groups.

The Rules of the Prohibition of Bishulei Goyim

One of the restrictions that our Sages set in order to prevent assimilation is the prohibition for a Jew to eat foods cooked by a non-Jew. However, not all foods are forbidden, but only a cooked dish that meets two rules: first, it is a food that is not eaten uncooked, and cooking makes it edible. For example, fruits are eaten uncooked, therefore if the non-Jew cooked fruit and made jam from them, it may be eaten. For most vegetables, too, there is no prohibition, since they are eaten uncooked. Therefore, there is no prohibition in matbukha salad, since its components – tomatoes, peppers and onions – are eaten uncooked. Similarly, for milk and dairy products, such as cheese and butter, there is no prohibition of bishulei goyim, since they are eaten uncooked. Even though today milk is commonly boiled for pasteurization (to eliminate bacteria), since the pasteurization is not intended to improve the milk’s taste, it is not considered bishulei goyim.

The second rule is that the food “is served on the table of kings to accompany bread.” And this does not specifically refer to kings, but also to ministers and dignitaries. Today, this restriction has no significance – because in the past, when society was more divided into classes, there were certain dishes poor people ate, such as sardines and porridge, and if one were to serve them to ministers, it would offend their honor (Avodah Zarah 38a). But today, thanks to diversity and abundance, all foods that people are accustomed to cook are considered presentable, and they are eaten by ministers at meals. What’s more, the majority of ministers were raised in conventional homes, and enjoy eating foods they ate in their parents’ homes and with their friends. However, the second component of this rule is practical, namely, that the prohibited foods are only ones that are served “to accompany bread” – i.e., foods eaten during the meal – as a portion of the main meal meant to satiate, or as a tasty dish that people regularly serve as a desert at the end of a meal. Therefore, there is no prohibition of bishul goyim in sweets, chocolate, nuts and seeds, and other snacks. And although sometimes such snacks are served at the end of a meal, they are mainly eaten separate from meals, and not as dessert at the end of a meal.

A Jew’s Participation is Helpful

When a Jew is involved in the cooking itself, and helps the cooking even minimally, for instance, improving the food by mixing its contents while cooking, the food is kosher. All the more so if one placed the food on the fire, lit the fire under the food, or increased the flame in a way that improves the cooking, the food is kosher (S. A., Y. D., 113: 6- 7).

The Disagreement over Lighting the Fire

The major question is whether lighting the fire before cooking is effective. In practice, when the cook is a non-Jew, if lighting the fire before cooking is enough, a non-Jewish cook may be employed without a problem. But if only lighting the fire is enough, if a Jew lights the fire, it is only sufficient for that one dish. And if the cooking involves frying meat on a skillet, the Jew’s lighting the fire will only be sufficient for the first piece of meat fried, therefore in practice, it is very difficult to employ a non-Jewish cook.

Regarding the prohibition of pat goyim (bread baked by a non-Jew), it is agreed that if a Jew took part in lighting the fire before baking, the bread is kosher, but with regard to cooking, the poskim disagreed.

There are some poskim who are machmir (stringent), believing that the leniency of a Jew lighting the fire beforehand only pertained to pat, because bread is such an important necessity for man. But with regard to cooking, only if a Jew participates in the cooking itself by placing the food on the fire, or by raising the flame in a way that it improves the food, is the food made kosher. This is the opinion of Rabbeinu Yonah, Rashba, Ra’ah, Ran, Rivash and Shulchan Aruch (113: 7), and this is the minhag of Sephardi Jews.

Other poskim are maykel (lenient), believing that the halakha concerning cooked food is the same as that for pat, and if a Jew participated in lighting the fire on which the food would be cooked later, or slightly reduced the gas and then raised it, since he participated in the burning of the fire – all the food that the non-Jew cooks later on that fire will be kosher. This is the opinion of Ravan, Rabbeinu Peretz, Or Zarua, Mordechai, Kolbo, the Mahari, Issur v’ Heter of the Aruch, and Rama, and this is the minhag Ashkenazi Jews.

How to Determine Halakha in Different Ethnic Minhagim

Ostensibly, there are two possibilities in determining this halakha. First, according to minhag avot (the custom of one’s forefathers), and second, according to the rules of halakha. In other words, according to the first possibility, each person should follow the minhag of his ethnic community: if a person is of Ashkenazi origin, he should be lenient, and if he is of Sephardic origin, or more specifically those from North Africa and the East, or alternatively, from Islamic countries, he should be machmir (stringent). And if one’s parents are from different ethnic communities, he should follow his father’s minhag. And if one’s father’s parents were from different ethnic communities, he should follow his father’s father minhag, and so on until the end of all generations.

However, one could argue that a binding minhag does not depend only on the father, but also on the place in which a person lives, and additionally, his entire family including his mother’s side. This is because the validity of a minhag is based on the fact that it is practiced, and usually a minhag cannot come about as a result of a single individual, rather, it occurs by means of the environment in which a person lives. Therefore, regarding minhagei tefilah (prayer practices of the various ethnic communities), as long as a person lives in a community that continues following their minhagim it obligates him, since they are practiced on a regular basis. However, if one lived in a place where the minhagei tefilah are different, after years and generations, the minhag ha’makom (local customs) will become more obligatory than the minhag of his forefathers.

Consequently, minhagim that are not practiced frequently, as long as they do not encompass all the local people and all members of one’s family, their validity is diminished. Thus, in Israel, when members of all the ethnic communities live together, study together, and marry one another (except for sections of the Haredi community), the duty of a person to act in accordance with his father’s minhagim, in minhagim that are not frequently practiced is lessened, including the rules of determining the lighting of the fire in the prohibition of bishulei goyim. If so, it seems preferable to decide according to the rules of halachic decision making, namely, when there is safek (doubt) in Divrei Chachamim (the words of our Sages), we are lenient. Since the prohibition of bishulei goyim stems from Divrei Chachamim, in the disagreement between the poskim as well, we should instruct according to the lenient method.

However, this possibility can also be challenged, since this is not a private minhag avot alone, but rather of important Jewish customs, and how could it be possible to cancel an accepted minhag practiced by all those from North Africa and the East?

Since there is room for both sides, it seems appropriate to instruct in a way that gives weight to both of them.

The Practical Halakha

Since today the members of all ethnic communities live together, and all the Jews from the East and the North Africa were accustomed to be machmir, even though the law is of rabbinic status, l’chatchilla (ideally), members of all ethnic communities should be instructed, even in their homes, according to the strict opinion. Be’di’avad (ex post facto), since the law is of rabbinic status, members of all ethnic communities, even in their homes, should be instructed according to the lenient opinion.

Kashrut in Restaurants and Public Kitchens

In businesses and restaurants, where there is no personal closeness between the cook and the diners, such as in a public kitchen or in a restaurant where the cook does not go out to the diners, l’chatchila, regular kashrut can be granted in accordance with the lenient opinion. This is because some poskim believe that even according to the strict minhag, just as our Sages were lenient in times of need to buy bread from a paltar goy (a gentile baker) that was baked in order to sell to the general public, seeing as relations that might lead to assimilation are rare in such a case. Likewise, we should rule leniently in the case of a non-Jew who cooks for the public, such as a cook in a restaurant that has no connection with the diners, that in times of need, the food he cooked is allowed to be eaten. Thus ruled one of the greatest Sephardic halakhic authorities, MaHaRitz, and the author of Chakrei Lev.

However, many of the Sephardic poskim did not accept this kula (leniency), and therefore did not mention it, thus explicitly wrote Tashbatz (1: 89), Chida (Shiurei Beracha, 112: 9), Erech HaShulchan (3), and Sdei Chemed. However, when it comes to kosher certification for the general public, all opinions must be taken into consideration. And since all of the Ashkenazic poskim are lenient in this matter, and in addition to that, some Sephardic poskim also rule leniently, kashrut may be granted. This is how Yibiyeh Omer ruled (Vol. 9, Y.D. 6). And although there are machmirim, this is the halakha (Or L’Tziyon, Vol.2, pg. 12).

However, kashrut mehedrin can only be given to those who follow the opinion of the machmirim, since anyone who grants kashrut mehedrin is thus obligated to be machmir according to all the important methods, and if he does not do so, he deceives public confidence and is negligent in his work.

The Attitude towards the Minhag of Kitniyot for Ashkenazim

Q: Is it permissible for Ashkenazic Jews to be lenient in the minhag of kitniyot (legumes) in light of the fact that today members of all ethnic communities live together?

A: According to what I wrote, the validity of a minhag depends on the fact that it is practiced, and since the minhag of kitniyot is a minhag practiced by all Ashkenazi Jews every year, it continues to obligate all Ashkenazi Jews, similar to the minhagim of prayers, because they are practiced regularly, they continue to obligate each person according to the minhag of his ethnic community.

Nevertheless, since members of all ethnic communities live together, the minhag of prohibiting kitniyot has also lessened a bit. Therefore, for example, in any doubt or disagreement on the matter, one may act leniently. And although, according to ikar ha’din (strict adherence to the law), since this is a minhag, in all doubts – the halakha goes according to the lenient opinion, nevertheless in cases where Jews apparently were accustomed to be machmir, it is customary to act stringently. And today, when we all live together, since we are acquainted with many Jews who are entirely lenient, in every safek of a minhag, one may be lenient. Likewise, it is also possible to be more lenient for an ill person and those suffering from severe ailments to eat kitniyot, even if they are not sick enough to be forced to lie down due to the prohibition of kitniyot (see Peninei Halakha: Pesach 9: 7).

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