Intentional Nullification of Prohibited Substances

  • Rav David Brofsky

Ein Mevatlin Issur Le-khat'chila

 

In previous shiurim, we discussed the laws of "bitul," i.e., under which circumstances may we permit the consumption of a mixture into which a prohibited substance was unintentionally introduced. In a related vein, we must ask whether one may intentionally introduce an issur into a permitted mixture. While it may seem inappropriate, is it actually prohibited? This question has great ramifications for those who produce food as well as for the kosher consumer. In this shiur, we will explore the basic principles and applications regarding intentional nullification of issurim.

 

The gemara (Betza 4b) assumes that it is prohibited to intentionally introduce an issur into a mixture; in other words, "ein mevatlin issur le-khat'chila."  What is the source for this halakha? Is its origin biblical or rabbinic? Why is it prohibited? Does this halakha relate to all methods of nullification and/or to all prohibited substances alike?

 

While most rishonim explain that this halakha is only of rabbinic origin, the Ra'avad asserts that mi-de'oraita one may not intentionally nullify an issur.

 

He derives this from a rather complex halakha involving the ram offering of a nazir. The Torah (Bemidbar 6:13–20) relates that after a period of abstention from grape products and haircuts, a nazir must bring three korbanot: a sheep and an ewe as sin offerings (chatat), which he does not consume, and a ram as a peace offering (shelamim), from which he must partake. After the ram is cooked, the kohen takes the upper foreleg (zero'a) and waves it (hanafa). This zero'a is to be consumed by the kohen and is prohibited to non-kohanim (zarim). The rest of the ram is consumed by the nazir.

 

This upper foreleg, according to one opinion in the gemara, is cooked WITH the rest of the animal, and is therefore known as the "zero'a beshela" – the "cooked limb." Is it not true, the gemara asks, that this foreleg, which permitted to the kohen but prohibited to the nazir, lends taste to the rest of the ram, thereby prohibiting the entire ram to the nazir?

 

Since this is not the case, the gemara deduces that a prohibited substance can be batel in an overwhelming majority of heter, and goes on to debate whether the ratio of permitted meat to the prohibited "zeroa beshela" is one to sixty, or one to one hundred. In any case, the Torah seems to permit the nazir, when cooking the foreleg with the rest of the ram, to intentionally nullify the taste of issur. 

 

The gemara is aware of the uniqueness of this case, and describes this phenomenon as a "chiddush," i.e., something we would not have known or permitted had the Torah not stated it explicitly. However, it is unclear what exactly is the nature of this chiddush.

 

The Ra'avad claims that the chiddush is that while the Torah generally prohibits "bitul issur le-khat'chila," in this case the nazir is permitted to intentionally nullify the taste of the "zero'a beshela."  Elsewhere, it is prohibited.

 

The majority of rishonim disagree with the Ra'avad, and understand the chiddush differently. Ordinarily, they explain, while there is no explicit prohibition against intentionally nullifying issurim, the nazir would not do so, as such as act is viewed as inappropriate. Here, however, despite our general negative assessment of intentional nullification, the Torah commands the nazir to cook the foreleg with the rest of the ram. According to these rishonim, the Talmudic principle of "ein mevatlin issur le-khat'chila" is of rabbinic origin.  The halakha is in accordance with this opinion.

 

Beyond the source of the prohibition, we must ask ourselves, what is the nature of this statute? What is wrong with the intentional nullification of issurim?

 

One could suggest a number of possibilities.

 

1. The halakha of "ein mevatlin" is meant to protect one from a situation in which one miscalculates the quantity of heter necessary to nullify a prohibited substance.

 

2. The halakha of "ein mevatlin" may reflect the Torah's disapproval of intentionally nullifying that which the Torah prohibited, or may even reflect a broader disapproval of any form of consumption of issur, even when batel, if done deliberately.

 

3. The halakha of "ein mevatlin" may reflect an inherent problem of intentionally relying upon the mechanisms of "bitul be-rov" and "shishim," which were intended only for "be-di'avad" scenarios.

 

Seemingly, the majority of rishonim, who believe that "ein mevatlin" is of rabbinic origin, may adopt any of these understandings. Yet, according to the Ra'avad, who maintains that "bitul le-khat'chila" is prohibited mi-de'oraita, it would seem that the reason must be fundamental rather than technical. In other words, it seems unlikely that the Torah would prohibit the intentional nullification of issurim lest one miscalculate the quantity of permitted substance required.

 

Are there any practical differences between these approaches? I would like to note two interesting opinions that may shed light on our question.

 

1. The Rashba, who incidentally explains that the chiddush of "zero'a beshela" is that it is "inappropriate behavior" (genai) to intentionally nullify an issur, notes an exception to this halakha. He claims that if an extremely LARGE pot that is ALWAYS used for large quantities absorbs a very SMALL amount of issur, one may continue to cook in this pot. Although every time it is used the small amount of issur enters the mixture, is rendered batel in the large quantity of heter cooked in it. This, the Rashba claims, is not prohibited by the principle "ein mevatlin issur le-khat'chila". Rav Yosef Karo (YD 99:7) writes that the halakha is in accordance with this opinion. A number of acharonim disagree with this ruling.

 

How can we understand the opinion of the Rashba? While one may attempt to employ his interpretation of chiddush, cited above, and suggest that nullifying such a small quantity of issur is not considered inappropriate, alternatively, we may suggest that since there is no fear of miscalculation in this scenario, the halakha of "ein mevatlin" should not apply. Those who reject the Rashba's opinion may either believe that nullifying even the smallest amount is still deemed inappropriate, or, that bitul by its very nature is only to be invoked is a situation of "be-di'avad," not "le-khat'chila."

 

2. Rabbi Yehezkel Landau, author of the Noda Be-yehuda, offers another intriguing distinction. He suggests (Mahadura Tinyana YD 45) that while intentional nullification of a prohibited substance that is absorbed into another substance (lach be-lach) is certainly prohibited only rabbinically, intentional nullification of a piece of issur in a mixture of dry substances (yavesh be-yavesh) is biblically prohibited.

 

He argues that the Torah permits one to consume a mixture of kosher and non-kosher pieces, as long as the majority of pieces are kosher, based on the biblical principle of  "acharei rabim le-hatot" - one should follow the majority. However, "If Elijah the prophet would arrive" and identify the issur, it would surely still be prohibited! If so, it is inconceivable that the Torah would permit one to intentionally rely upon this principle! The reliance upon a majority is clearly intended for situations in which there is no other choice; "bitul be-rov" is not to be invoked intentionally.

 

In other words, the Noda Be-yehuda suggests that intentional nullification of prohibited substances is not permitted because it contradicts the very nature of "bitul be-rov." However, regarding a mixture in which the substances merge completely and the prohibited substance disappears into an abundance of heter, it is difficult to find a fundamental reason why it is not permitted, and therefore is only prohibited rabbinically.    

 

Intentional Nullification of Rabbinically Prohibited Substances

 

May one intentionally nullify a rabbinically prohibited substance?

 

The gemara (Beitza 4b) posits that if branches, which are deemed muktzeh on Shabbat and Yom Tov since they serve no purpose if they are not prepared for use before Shabbat or Yom Tov, fall into one's "oven" (or "campfire") on Yom Tov, one may add pre-prepared twigs (which are not muktzeh) to the oven, thereby nullifying the presence of the prohibited branches and permitting one to move the entire pile of branches. Isn't this a form of intentional nullification? The gemara answers that one may nullify rabbinically prohibited substances.

 

The gemara, however, does not explain whether this exception applies to all rabbinically prohibited substances, or just to muktzeh and the like. Additionally, the gemara does not indicate whether one may intentionally add the issur to a mixture, or only add heter to a mixture into which prohibited matter accidentally fell.

 

The Rishonim debate this issue.

 

The Rambam (Hilkhot Ma'akhalot Assurot 15:25), for example, permits adding heter to a mixture containing any rabbinically prohibited substance. Therefore, he permits adding milk to mixture in which chicken and milk were combined, since a mixture of chicken and milk is prohibited only mi-derabanan. Tosafot (Beitza 4b) limit the gemara's ruling to cases in which the issur's entire origin is rabbinic ("ikro mi-derabbanan"), (as opposed to a rabbinic issur that is an extension of a Torah issur) such as muktzeh. This excludes Rambam's case of rabbinically prohibited milk and chicken, which is clearly an extension of the biblical prohibition of milk and meat. Others, such as the Rosh, claim that one is never permitted to nullify a prohibited substance, and that the gemara was lenient only in a case in which the issur would be destroyed (i.e., burned).

 

The Mechaber (Shulkhan Arukh YD 99:6) accepts the ruling of the Rambam, permitting one to add heter to a mixture into which issur accidentally fell. The Rema adopts a more stringent ruling, unequivocally prohibiting the intentional nullification of issurim.

 

The Consequences: If One Intentionally Nullified A Prohibited Substance

 

Based on a mishna (Orla 3:8) cited by the gemara (Gitin 54:), most rishonim rule that if one intentionally nullifies an issur, the mixture remains prohibited. This is in order to discourage such behavior. While many rishonim (Rambam, Rosh, etc.) assume that the mixture is prohibited only to the person who nullified the issur, the Rashba insists that the mixture is also prohibited to the party for whom the issur was intentionally nullified (nitbatel bishvilo)! The Shulkhan Arukh accepts the position of the Rashba.

 

The acharonim debated a fascinating, and very practical, question. Who constitutes "nitbatel bishvilo"? Must the person know that the issur was nullified for his sake? What about a baker who intentionally adds a minute quantity of a non-kosher ingredient to his baked goods? The Taz (Y"D 99:10) rules that while his family may not partake of the food, others may. Rabbi Akiva Eiger (YD 99), though, insists that the food is prohibited.

 

Some Acharonim are more lenient if the baker is not Jewish (see Darkhei Teshuva 108:2).

 

The application for today's manufactured foods market is obvious.

 

Incidentally, a parallel debate exists regarding food cooked on Shabbat. Generally, the halakha states while one who cooks on Shabbat may never partake of that food (Shulkhan Arukh OH 118), those who did not do the cooking may benefit from the food after Shabbat. The acharonim debate whether the Rashba's opinion, which is accepted regarding intentional nullification of issurim, should be applied in a similar fashion to our case. Should food cooked on Shabbat be prohibited to those for whom the food was cooked? Is there a distinction between a factory or an inn that cooks for its customers, and an ordinary person who cooks for his neighbor?

 

Innocent Intentions

 

The Shulkhan Arukh (YD 84:13) rules that one may heat up honey into which ants, a prohibited substance, have fallen in order to make it easier to remove the undesirable substance. Clearly, the acharonim point out, heating will cause a transfer of taste from the ants to the honey. The Shakh (99:7) explains that since one's intention was to improve the mixture, and not to nullify the issur's presence, one is permitted to heat the honey. Similarly, the Ran (Avoda Zara 33b) notes that while the process of "hag'ala," i.e., "kashering" utensils by immersing them in boiling water, usually entails "bitul," (as the prohibited substance is expelled into the water), since one's intention is not to benefit from the issur, but rather to eject it and permit the utensil, it is permitted.

 

The acharonim debate the scope of this heter. Is one permitted to introduce the prohibited substance to the mixture only when there is no alternative? Some even permit producing juice from fruits that are generally infested with bugs, as it would be very cumbersome to check each and every fruit (see Pit'chei Teshuva YD 99). Others disagree.

 

Nullification of Permitted Substances

 

The Rema (YD 99:6) rules that if milk fell into water and was nullified in it, and afterwards that water fell into a pot of meat, even if there are not 60 parts of meat per part of milk, since the milk has been nullified in the water, the mixture is permitted.

 

The Shakh adds that one may even intentionally use the water with meat, since the milk has already been nullified by the water. However, some acharonim claim, one may not add milk to water with the intention of adding that water to meat.

 

If so, it would seem that one may intentionally fry meat with margarine that contains 1% milk! Similarly, it would seem that one may use non-stick sprays marked "dairy," if their dairy content is less than one sixtieth of the content of the spray, for frying meat! If so, one may question why the product is marked "dairy" at all?

 

The OU, for example, in an email response to an inquiry (6/17/00), explained their policy.

 

This the OU's Policy. When a manufacturer wishes to add an ingredient where the dairy component had become batel, he can get a Pareve Status for his product. But a company producing a product where the recipe calls for a tiny drop of dairy among vastly more of Pareve ingredients, he wants to be "mevatel le-khatchila" the drop of dairy - that is halakhically not permitted. Which is why such products get the OU-D designation.

 

One may wonder whether the consumer should ALSO be considered a "mevatel," i.e., one who is intentionally nullifying, since he is using a product to which milk was intentionally added, along the lines of adding milk to water in order to add it to a mixture of meat, which most poskim prohibit.

 

In any case, certainly "be-di'avad" the food (and utensils) may be used. One should consult a rabbinic authority regarding the intentional use of such margarine or non-stick sprays, although such a practice would seem to be inappropriate due to the confusion it may cause.

 

Our next shiurim will explore the effect of non-kosher taste on food and utensils.