Borer (Part 5) Tokh ke-dei Akhila

  • Rav Yosef Zvi Rimon

 

THE LAWS OF SHABBAT

By Rav Yosef Zvi Rimon

 

 

Shiur #05: BORER (Part 5)

 

X) Tokh ke-dei Akhila

 

 

Must one eat the fish with its bones? 

 

We have seen in our previous shiurim on the melakha of borer (selecting) that there are three necessary elements to allow selection on Shabbat: one must a) remove okhel (food) from pesolet (refuse) b) by hand c) le-altar (for immediate use).  In our previous shiur, we dealt with the definition of "le-altar" and the proximity of the berira (selection) to the meal or the eating (akhila) itself.  Now we must ask: is there anything more immediate than le-altar?  What may one do tokh ke-dei akhila (in the midst of eating)?

 

According to the Ramban (74a), the reason one is allowed to perform berira under the three abovementioned conditions is that these conditions transforms the act into derekh (the way of) akhila, as opposed to derekh berira.  While discussing this (ibid., s.v. Ve-khi muttar), the Ramban mentions an additional point:

 

This is not derekh berira; instead, it is comparable to the case of one who is eating, discovers pesolet while in the midst of the akhila and removes this pesolet from the okhel, which is permitted.

 

It is explicit in the words of the Ramban that while eating, one may remove pesolet from okhel, and this is what the Ran writes in his Chiddushim ibid.  What level of eating are we talking about?  The Bei'ur Halakha (319:4, s.v. Ha-borer pesolet) understands that the Ramban and the Ran refer to someone who finds pesolet in a piece which one is about to eat, but before one ingests it:

 

This question is worth discussing: does the title of borer pertain only when one initially selects and then makes ready to eat?  What about removing the pesolet and tossing it aside at the moment of akhila itself, as one holds [the food] in one's hand and wants to eat?  Perhaps borer does not apply, even though this is before the actual ingestion, because this is the way of food; or perhaps it makes no difference, and therefore one must only toss [the pesolet] after one eats, or toss part of the food along with [the pesolet].

Now, I have found that the Birkei Yosef writes in his book that the Mahari Abulafia and the Maharit Tzahalon argue about this, that the former rules leniently and the latter forbids it...

Moreover, I have delved into the books, and I have found that the Rishonim argue about this idea, for the Ramban in his Chiddushim clearly supports the abovementioned view of the Mahari Abulafia.  In his Likkutim on Shabbat, the Ramban writes, and I quote...  "This is not derekh berira; instead, it is comparable to the case of one who is eating, discovers pesolet while in the midst of the akhila and removes this pesolet from the okhel, which is permitted" — this means that the Ramban cites this as a self-evident case which cannot be regarded as derekh berira...  Furthermore, the Ritva has cited in his Chiddushim[1] these words of the Ramban. 

 

The Bei'ur Halakha has some doubts from a logical point of view, and he also cites a dispute of the Acharonim about this: according to the Mahari Abulafia (cited in the Responsa of the Maharitatz, Ch. 203), it is permitted to select even pesolet from okhel tokh ke-dei akhila, but according to the Maharitatz (ibid.), it is forbidden.  However, in the end, the Bei'ur Halakha writes that according to the Ramban and the Ran one may rule leniently and remove the pesolet from the piece one is about to eat.[2]

 

Thus, while generally it is forbidden to select pesolet from okhel even for immediate use, according to the Ramban and the Ran, there is a limit to this prohibition.  As we have discussed at length in our previous shiur, le-altar only applies at the stage of samukh la-se'uda (close to the meal), and at this point it is allowed to select okhel from pesolet only; however, while one is is in the actual process of eating there is no prohibition of borer at all, even if one is picking pesolet from okhel before putting the food in one's mouth. 

 

However, the Chazon Ish (54:1) understands the view of the Ramban and the Ran in a different way:

 

It appears that their meaning is that one removes from one's mouth the refuse in the piece...  It is inconceivable to explain that the piece is in one's hand prior to being placed in one's mouth, as we have already established that this will be permissible only le-altar...  It is logical that even berira of a piece that one is ingesting is forbidden, for we have found no distinction between a large piece and a small piece, or between le-altar of the moment and le-altar of the hour.  The Mishna Berura there explains that the view of the Ramban is that berira is permissible even when it comes to the pesolet in the piece in one's hand.  It does not appear so, as this would allow one to pick out even a large quantity of pesolet, and where would we get such an idea? 

 

According to him, the Ramban and the Ran allow one to remove the pesolet from a piece in one's mouth only; however, before the food enters one's mouth, it is forbidden to remove pesolet from okhel.[3]  It has been related that the Beit Ha-levi would eat the fish along with the bones (Shevitat Shabbat, Borer, Be'er Rechovot, end Ch. 20) to avoid removing pesolet under any circumstances.  The Ramban and the Ran, according to the Chazon Ish, believe that there is no need for this, and once the fish is in one's mouth, one may remove the bones.  However, according to the Chazon Ish, one may not remove the bones before that, even though it is done tokh ke-dei akhila.

 

One may explain the view of the Ramban and the Ran in an alternative way.  According to the Mishna Berura, we are talking about a person who removes bones from the fish (found, for example, on the plate) and eats the fish right away.  According to the Chazon Ish, we are talking about a piece which is already in one's mouth.  It may be that we are talking about an intermediate situation: the person has begun to eat the fish, and the fish in one's hand or on the fork (but not on the plate), and tokh ke-dei akhila one finds a bone, and once one stumbles across a bone, one removes it (by hand).  It may be that a situation such as this is considered "tokh ke-dei akhila" and we may allow even removing pesolet (see Shevitat Shabbat, Borer, Be'er Rechovot, Ch. 20). 

 

The Root of the Argument

 

It appears that this dispute depends on the way we understand the allowance to select okhel manually and le-altar.  We saw that we may understand this in one of two ways: a) this is not derekh berira; or b) berira in this way actually becomes derekh akhila, and derekh akhila was never forbidden.

 

If we understand that the allowance is because this is not derekh berira, it may be that selecting pesolet from okhel is always considered standard derekh berira (even according to this understanding, one may say that in the process of akhila itself, derekh berira would not apply at all).  However, if we understand that the allowance is because this is derekh akhila, it turns out that removing pesolet tokh ke-dei akhila is itself considered derekh akhila.  Perhaps this is even an a fortiori argument, because there is no more absolute derekh akhila than berira tokh ke-dei akhila itself.  Indeed, from the word of the Ramban it is clear that the allowance is based on derekh akhila, and he is also the one who permits (according to the understanding of the Bei'ur Halakha) to remove the pesolet tokh ke-dei akhila.[4]

 

Halakhic Ruling

 

The Bei'ur Halakha (319:4, s.v. Mi-tokh Okhel) justifies the common custom to remove bones from fish on Shabbat.  According to his words, those who find bones in fish tokh ke-dei akhila certainly have on whom to rely; according to the Ramban and the Ran, it is permissible to remove the bones, one may even justify removing the before the akhila:

 

People are not particularly cautious or precise when it comes to this.  There is no need to say that we cannot object to those who do so at the time of akhila itself, for they have on whom to rely, as we said above; but what about [those who do so] before the akhila, such as men and women who prepare food to bring to the table and are not cautious at all, removing the bones from the flesh beforehand?  Presumably, they are faltering in a prohibition which makes one liable [to bring] a sin-offering!  Nevertheless, I have sought some justification for them...[5]

 

 

As we mentioned, the Chazon Ish (54:1) disputes the words of the Bei'ur Halakha, and he holds that one may not remove pesolet from okhel tokh ke-dei akhila.[6]  Correspondingly, the Chazon Ish (ibid., 3-4) rejects the Mishna Berura's justifications for those who remove the bones before eating.  According to him, one may put the poultry or fish into one's mouth and then remove the bones, or one may grab the bone and pull off the flesh (a solution more practicable with poultry than with fish).

 

In his Responsa (Vol. I, Ch. 83), the Shevet Ha-levi supports the Mishna Berura's argument.  The Ben Ish Chai (Year 2, Beshallach 10) also permits removing the bones and eating the meat right away; since this is how everyone eats it all the time, this is not derekh berira but derekh akhila. 

 

Rav Neuwirth (Shemirat Shabbat Ke-hilkhata 3:11-13) brings the two opinions, and he writes that essentially, one should be stringent; however there is support for those who are lenient if they remove the bones tokh ke-dei akhila and not before that point.

 

This rule has practical ramifications for many foods: watermelon, fish, poultry, etc. — does one need to put the food in one's mouth, eat the okhel and remove the pesolet, or perhaps may one may eat it normally and remove the pesolet immediately before putting the piece in one's mouth?

 

In fact, those who are lenient and remove the bones tokh ke-dei akhila have on whom to rely.  Those who are stringent in this matter, according to the view of the Chazon Ish, are allowed to avoid the problem in a number of ways: to put the fish in one's mouth and then take out the bones, to hold the fish and eat its flesh, or to take out the bone and taste a bit of the flesh on it.  In order to avoid issues of borer, many Jews have the custom of eating gefilte fish, thereby fulfilling all views.

 

 

 

XI) Defining "By Hand"

 

 

Why is one allowed to eat with a spoon or a fork?  May one use them to remove vegetables from the soup?

 

As we have established that to allow berira, it must be accomplished manually, how are we allowed to eat with a fork or a spoon? 

 

The Gemara (74a) distinguishes between different utensils for purpose of borer:

 

Rav Yosef said: "'One may select and eat' by hand, 'select and set aside' by hand, but one may not select with a reed-basket or a tray; and if one does, one is not liable, but it is forbidden.  By sieve and sifter, 'one may not select, and if one selects, one is liable [to bring] a sin-offering.'"

 

According to the Gemara, berira with a sieve or a sifter is forbidden by the Torah, manual berira is absolutely permissible (when one picks out okhel from pesolet for immediate akhila, as we explained above).  Berira with a reed-basket or a tray has an intermediate status of "not liable, but forbidden," namely a rabbinical prohibition.[7]  Rashi (s.v. Patur Aval Asur) explains the reasoning of this law:

 

"One is not liable, but it is forbidden" — it is not absolutely permitted, because it is similar to berira; but one is not liable to bring a sin-offering because it is like using the back of one's hand, for the essential berira is with a sieve or a sifter.  However, [berira] by hand is not similar to borer at all.

 

In other words, the reed-basket and the tray are utensils not normally used for berira, and therefore berira with them is not forbidden by the Torah, however, there is in any case a rabbinical ban, since it is similar to standard berira.  This is opposed to manual berira, which is not similar to berira at all, and therefore it is permitted. 

 

In light of this, it appears logical that there is no problem with eating with a spoon or fork, because this bears no resemblance to using a reed-basket or a tray, which is "similar to berira."  On the contrary, this is not derekh berira, but derekh akhila. 

 

The same idea emerges from the words of the Bei'ur Halakha.  The Rema (321:12) rules, following a responsum of the Rashba, that it is permissible to cut food into small pieces in order to eat them immediately, and there is no prohibition of tochen (grinding), just as it is permitted to select in order to eat immediately.  The Bei'ur Halakha (ibid., s.v. Midei) asks: "Is it not true that they permitted borer only by hand, not with a utensil?"  The Bei'ur Halakha explains that cutting with a knife is derekh akhila, and therefore it is permissible:

 

The words of all of the halakhic authorities imply that in our issue, one is even permitted to cut with a knife.  The reason, writes the Peri Megadim, is that just as with borer, derekh akhila is when one selects by hand in order to eat immediately, so too here, it is derekh akhila even when one cuts with a knife to eat right away, because derekh akhila is with a knife — though not when one cuts with a utensil which is designed for tochen. 

 

In a similar way, we should permit selecting the okhel from the pesolet with a spoon or fork, since this is derekh akhila.  Moreover, the Chayei Adam (82:7) permits removing cream from the top of milk, and he explains in his Nishmat Adam (2) that it is permissible with a spoon, as this is not a utensil designed for berira.

 

We find in the words of the Mishna Berura an apparent contradiction in the definition of a utensil which is permissible for berira.  In one place (319:62), he indicates that it is forbidden to select with a spoon:

 

Skimming the cream floating on top of the milk is included in borer, so one must be careful when one is approaching the level of the milk to leave a bit [of the cream], and then it is permitted...  Alternatively, one may take a bit of the milk along with the cream [but to take only the cream and none of the milk is forbidden — even if one intends to eat it immediately — since one is removing it with the spoon].

 

The Mishna Berura forbids removing with a spoon the cream of the milk even if one wants to eat it immediately, as this is berira with a utensil.  (In the Sha'ar Ha-tziyun, 58, he explains that this is derekh berira, and he notes that in this he argues with the Chayei Adam.)  However, in other place the Mishna Berura writes (ibid., 66):

 

Know that in the Tosefta it states: "But one may churn a stew and eat it" — this means [that one may] separate a thick food from the sauce with a spoon, because this is derekh akhila.

 

Rav Moshe Feinstein (Iggerot Moshe, OC, Vol. I, Ch. 124) writes that sometimes it is permissible to select with a spoon or a fork, and sometimes it is prohibited:

 

Let us consider selecting on Shabbat okhel from pesolet with a fork and a spoon to eat le-altar: is it considered to be borer with a utensil, which is forbidden?  It is obvious, in my humble opinion, that berira with a fork or a spoon may provide an advantage over using one's hand.  If it turns out that they assist in the act of berira itself, this should be considered borer with a utensil, and one must forbid it just like using a reed-basket and a tray.  However, if they add nothing to the berira compared to using one's hand, but they simply help one avoid dirty hands; or if the food is far away and one cannot reach it by hand; or if the food is liquid and cannot be taken by hand, etc. — [using silverware] is only akin to borer by hand, which is allowed le-altar when one takes okhel from pesolet. 

 

According to him, if the item assists in the berira itself, it is considered a utensil and it is forbidden to select using it; however, if a utensil does not assist in the berira itself, but one uses it only in order so that one's hands will not be dirtied or because the food is hot, etc. — there is no prohibition of berira.[8]

 

In light of this distinction, we may resolve the contradiction in the Mishna Berura's words.  On the one hand, it is permissible to remove a thick food with a spoon, because in this case one could separate the thick food by hand.  On the other hand, one may not remove the cream with a spoon, because the cream is virtually impossible to remove manually.  The Minchat Yitzchak (Vol. I, Ch. 76) explains this in a similar vein.[9]  In addition, the Chazon Ish (54:5) writes that it is permissible to remove the meat from the bone with a fork, and there is no hint of borer in this.

 

According to this, it is permissible to take vegetables out of soup with a spoon or a fork, but one may not remove with them tiny pieces which one could not remove by hand, so that one needs a spoon or a fork in order to "fish" for them.

 

We should note that the prohibitions that come to bear here are rabbinical in nature, since a spoon and fork are not more specialized for berira than a reed-basket or tray, because they are not designed for this function (the same appears in the Iggerot Moshe).  Naturally, it is easier to be lenient with questions in a rabbinical context.[10]       

 

 

 

       

[1] This is a reference to the Chiddushim of the Ran, erroneously attributed to the Ritva for many years. 

[2] The Bei'ur Halakha adds that the Rosh implies that berira tokh ke-dei akhila is forbidden.  In his Responsa (22:9), the Rosh writes that it is permitted to filter worm-infested water by putting a cloth over one's mouth, since one is only preventing the pesolet from entering his mouth, and this is not akin to the melakha.  This implies that, on an essential level, berira also applies tokh ke-dei akhila, but preventing pesolet from entering one's mouth is not an act of berira.  Nevertheless, the abovementioned Mahari Abulafia explains simply that the Rosh is talking about a cloth — i.e., a utensil — which would still be forbidden to use even tokh ke-dei akhila; however, berira by hand tokh ke-dei akhila is certainly permissible, even if one is selecting pesolet from okhel.  (The Bei'ur Halakha himself quotes the conclusion of the Mahari Abulafia, but he does not cite his view concerning the Rosh, and it appears that the Bei'ur Halakha did not see the Mahari's words in the original, but only as cited by the Birkei Yosef).  However, from the words of the Ritva (74a, s.v. Amruha Kameih) it appears that one is not allowed to select tokh ke-dei akhila: "Now, the common practice of crushing walnuts or almonds and the like and picking the okhel from them before the meal in order to eat during the meal is forbidden, and one should not do so except during the actual eating, selecting okhel from pesolet."  That is to say, even when one selects "during the actual eating," one must select okhel from the pesolet.

[3] The Ramban (142b, s.v. Man Tana) writes that that one who finds a stone in a pile of fruit may take it out like pesolet amidst okhel.  This implies that he agrees with the view of the Bei'ur Halakha.  However, Rav Isser Zalman Meltzer writes in his glosses there that the Ramban is speaking of Yom Tov, for on Shabbat one is not allowed to remove pesolet from okhel.  However, it appears that the Ramban is talking about Shabbat, and if so, this supports the interpretation of the Bei'ur Halakha.    

[4] In our previous shiur, we saw how the Bei'ur Halakha explains in similar way how one is allowed to peel fruit on Shabbat: since it is impossible to eat the fruit in another way, this becomes derekh akhila.   

[5] When it comes to removing the bones before eating, the Bei'ur Halakha assembles a number of reasons to justify the practice of those who remove the bones beforehand:

1.     Sometimes the bones are themselves edible (ipso facto, the bones and flesh would be one type, so that no prohibition of borer applies at all). 

2.     According to the Yam shel Shelomo (Beitza 1:42), when the pesolet adheres to the okhel naturally, it is considered one type with the okhel, and its separation is not considered berira, but only simple food preparation (tikkun okhel).  Pesolet is considered pesolet only if it is independent and distinct, but as long as it is naturally attached to the okhel and does not stand on its own, it is not considered pesolet, and its removal is not considered removing pesolet, but exposing the okhel.  However, the Magen Avraham (510:4) challenges this view, as it is forbidden to peel fruits in order to eat them a later point, even though the peel naturally adheres to the fruit; nevertheless, he permits peeling fruit for immediate akhila, and it would also be permissible to remove the bones for immediate akhila.

3.     One may enlist the Rishonim who hold that in every case it is permitted to pick pesolet from okhel for immediate akhila.

The Shevitat Shabbat (Borer, Be'er Rechovot, Ch. 20) adds that one may also enlist the view of Rabbeinu Chananel that the prohibition of borer applies only when the okhel and pesolet are commingled, not when they are merely attached.

[6] According to his words, removing the bones is not comparable to peeling fruits, which he allows (see previous note), because there is no other way to get to the okhel; here, one may find other ways to eat the fish or meat.

[7] Concerning berira with a reed-basket or a tray, one must ask: a) is one exempt even when the berira is not for immediate use?  This is a discussion beyond the scope of this shiur.  b) Is one exempt even when selects pesolet from okhel?  The Mishna Berura rules that one is liable (Bei'ur Halakha 510:2, s.v. Im Rotzeh; Mishna Berura 319:9-10).  However, one may argue that one who uses a reed-basket or tray would be exempt in this case as well (Or Le-Tziyon, Vol. I, 27:4). 

[8] It seems that one could challenge this based on the view of the Magen Avraham and the Mishna Berura, who allow peeling apples le-altar: one cannot peel apples without a knife, and if so, it should be forbidden to peel with a knife because it is berira with a utensil.  Rav Feinstein addresses this, and he argues that the knife does not help the actual berira; it is simply that by hand it is impossible to cut, and therefore one uses a knife.  However, this still seems a bit difficult, because the essential character of berira when it comes to apples is the cutting; this issue requires further study. 

[9] Rav Neuwirth (Shemirat Shabbat Ke-hilkhata, Ch. 3, n. 126) answers similarly, but below (ibid., n. 130) he cites another answer in the name of Rav S.Z. Auerbach (see there). 

[10] As we have said, the Chayei Adam allows removing cream with a spoon because this is not derekh berira, but the Mishna Berura disputes this.  It may be that the argument depends on the extent of the reed-basket ban.  We have seen in the words of Rashi that using a reed-basket or a tray "is similar to berira" but selection by hand "is not similar to borer at all."  According to the Chayei Adam, only the use of a reed-basket or a tray is forbidden, because this is "similar to berira," so that we worry that one may come to use even a sieve or sifter; but every other utensil which is not "similar" is not forbidden.  By their very nature, a sieve and a sifter are utensils which do not assist in eating, but the essential aim of silverware is to assist in eating, so that using it is considered derekh akhila, even though it may assist berira as well.  (It may be that because of this the Gemara forbids using a reed-basket or a tray, and it is does not forbid using other utensils).  According to the Mishna Berura, any utensil which assists in berira is included in the reed-basket ban.  The halakhic consensus is that even though this is a question of a rabbinical ban, we follow the stringent view of the Mishna Berura; this conclusion arises from the words of Rav Feinstein and other Acharonim.  However, there definitely is an argument for those who are lenient to allow one to use silverware to select okhel from pesolet tokh ke-dei akhila, even if the silverware assists in the berira itself (unless we answer the problem with Rav Feinstein's solution), because this is a rabbinical doubt, and one may maintain that this is also derekh akhila and that forks and spoons are considered an extension of one's arm, not utensils.