Kitniyot

YHE-HALAKHA: TOPICS IN HALAKHA

 

Kitniyot

Rav Yosef Tzvi Rimon

 

 

THE SOURCE OF THE LAW

 

            The Gemara in Pesachim 35a records the view of Rabbi Yochanan ben Nuri that rice is considered chametz:

 

As it was taught in a beraita: Rabbi Yochanan ben Nuri said: Rice is a type of grain, and one is liable for karet (excision) for eating it in a fermented state, and with it one fulfills one's obligation [to eat matza] on Pesach.

 

            The Sages, however, disagree and understand from the mishna that only the five species of grain ferment and become chametz; rice, on the other hand, does not ferment, rather, it decays:

 

These are the things with which a person fulfills his obligation on Pesach: wheat, barley, spelt, rye and oats….

These things – yes; rice and millet – not. From where is this derived? Rabbi Shimon ben Lakish said, and similarly a tanna of the school of Rabbi Yishmael taught, and so too a tanna of the school of Rabbi Eliezer ben Yaakov taught: The verse states: "You shall eat no leavened bread with it; seven days you shall eat unleavened bread with it" (Devarim 16:3) – a person fulfills his obligation regarding matza with things that can ferment, to the exclusion of things that do not ferment, but rather decay. Our mishna is not in accordance with Rabbi Yochanan ben Nuri, who said: Rice is a type of grain, and one is liable for karet for eating it in a fermented state.

 

            The Rambam (Hilkhot Chametz u-Matza 5:1) rules in accordance with the Sages that rice does not ferment, but rather it decays, and this is also the accepted ruling according to all the Rishonim:

 

The prohibition of chametz on Pesach only applies to the five types of grain: two types of wheat, namely, wheat and spelt, and three types of barley, namely, barley, oats and rye. But kitniyot, such as rice, millet, beans, lentils and the like are not subject to [the prohibition of] chametz. Even if a person kneads rice flour, or the like, with boiling water and covers it with a cloth until it rises like dough that ferments, it is permitted to be eaten, for this is not fermentation, but rather decay.

 

            The Sages' position and the Rambam's ruling are clear to anyone who understands the chemistry involved (see Techumin 1, p. 97).

 

THE CHEMICAL EXPLANATION

 

            There are three critical factors in flour:

 

1)         Starch.

2)         Proteins.

3)         Enzymes that stimulate fermentation.

 

THE FERMENTATION PROCESS

 

            One of the enzymes is called beta-amylase. This enzyme breaks down the starch into glucose (sugar), and then the glucose is then converted into alcohol. When the alcohol evaporates (this is what produces the pleasant smell), the dough rises.

 

Beta-amylase → starch → glucose → alcohol

 

            Rice is also comprised of the three components found in the five types of grain: starch, proteins and enzymes. It lacks, however, the enzyme beta-amylase. The other enzymes generate a slow process of fermentation, but before the process is completed, another enzyme causes the dough to decay (this enzyme is also found in wheat flour, but the dough rises before it has a chance to cause decay).

 

            It is for this reason that Chazal said that rice does not ferment, but rather decays.

 

THE DECREE OF KITNIYOT

 

            The Semak (Ri of Corbeil, commandment 223) brings the custom not to eat kitniyot on Pesach:

 

Regarding kitniyot, such as beans, lentils…, and the like, our Rabbis practiced a prohibition not to eat them on Pesach… They did not practice a prohibition because of the fermentation itself, for they would not have erred in a matter that even school children know…

And therefore it seems right to maintain the practice and forbid all kitniyot on Pesach - not because of the fermentation itself, for it would be a mistake to say that, but rather because of a decree. Since kitniyot are a cooked dish, and grain too is a cooked dish, were we to permit kitniyot, people might come to mix them up… And it is also something that is piled up ("midi demidgan") like the five species [of grain]. There are also places where it customary to make bread from them as from the five species, and, therefore, those who are not well-versed in the Torah are liable to mix them up…

 

            The Semak writes that kitniyot are similar to the five species of grain, and therefore there is room for confusion. The similarity stems from the following:

 

1)     Cooked dish: The Gemara in Berakhot 37a records a view that we recite the blessing of "borei minei mezonot" over rice because it is a cooked dish, namely, a staple food that is cooked. Thus, there is room to make a mistake and confuse rice with regular bread.

 

2)     Something that is piled ("midi demidgan") – Rice and grains are gathered in a similar manner (and therefore it is called "dagan"; Tosafot, Nedarim 55a), and therefore there is concern about confusion between them.

 

3)     The Tur (453) brings another reason for the prohibition of kitniyot:

 

Some authorities forbid the eating of rice and all other types of kitniyot in a cooked dish, because wheat might have become intermingled with them. This is an excessive stringency, and it is not the customary practice.

 

            That it to say, there is room for concern that wheat kernels had gotten into the sacks of kitniyot. The Tur himself writes that this is an excessive stringency and not the common practice.

 

OPPOSITION TO THE CUSTOM

 

            Thus, the custom of not eating kitniyot on Pesach was first recorded about seven hundred years ago. The Semak (commandment 223, in the glosses) writes:

 

And my master Rabbi Yechiel was accustomed to eat white beans… on Pesach, and he would also say this in the name of great authorities… Nevertheless, it is very difficult to permit something regarding which the world practices a prohibition from the time of the ancient Sages…

 

            Rabbi Yechiel of Paris would permit kitniyot in certain cases, but the Semak writes that it is difficult to accept this leniency, against an ancient custom (implying that the custom had started even earlier; see Arukh ha-Shulchan, 453). The Or Zaru'a as well writes that his master, Rabbi Yehuda of Paris, would eat kitniyot on Pesach, and he accepts his practice. He, therefore, concludes that the custom not to eat kitniyot on Pesach is an erroneous custom:

 

The custom practiced by our forefathers is based on a mistake.

 

            Rabbi Yaakov Emden (Mor u-Ketzi'a, no. 453) tried to abolish the custom, writing that his father, the Chakham Tzvi, was very distressed by it:

 

I can testify about my father, the Gaon, ztz"l, how distressed this righteous man was about this… I, therefore, say, that whoever abolishes this custom not to eat kitniyot – may my lot be with him. I wish that the great authorities of the generation would agree with me….

 

            This position, however, was not accepted, and the Poskim adopted the approach of the Maharil (Sefer Maharil [Minhagim], Hilkhot Ma'akhalot Assurot be-Pesach, s.v. [16] kitnit):

 

[16] As for all kinds of kitniyot – the Maharash said that it was decreed not to cook them on Pesach. Even though it is only the five grains – wheat, barley, spelt, oats and rye – that ferment, nevertheless because of them, they decreed about all kinds of kitniyot. One must not say: Since no Torah prohibition is involved, there is nothing to be concerned about, for anyone who transgresses a rabbinic decree is liable for the death penalty, and violates the prohibition, "You shall not deviate from what they tell you."

 

            Regarding this, the Beit Yosef (453) writes as follows:

 

Nobody is concerned about this except for the Ashkenazim.

 

            Similarly, the Rema writes (in the Darkhei Moshe):

 

And we Ashkenazim are accustomed to practice stringency.

 

DO THE VARIOUS RATIONALES APPLY TODAY?

 

            At first glance, one might have thought that all of the reasons mentioned above for forbidding kitniyot on Pesach are no longer relevant today. The truth, however, is that even today these reasons are pertinent. Even today, all types of kitniyot and grains are packaged in the same factories. Thus, we sometimes find wheat kernels in packages of rice, or the like, and therefore the decree should apply today as well. What is more, in recent years food companies have begun to manufacture similar products out of rice and the five grains, such as rice cakes that frequently include the five grains in their ingredients.

 

            [For this reason I am not fond of the idea of Pesach wafers, which look exactly like chametz wafers. While it is not in our power to impose new prohibitions, the decree regarding kitniyot is based on the idea of taking steps to prevent mistakes and deceptions. Even if Torah scholars are unlikely to come to error, the matter must be considered from a broader perspective. When a religious child is seen eating bisli (an popular Israeli snack food) on the street, his non-religious neighbor is liable to think that bisli is not chametz. Furthermore, one should find it emotionally difficult to eat food items on Pesach that look exactly like chametz].

 

            And furthermore, we should add the words of the Meshekh Chokhma (Shemot 12) and the Arukh ha-Shulchan (Yoreh De'ah 115) that the Sages had additional, concealed reasons for the decrees that they imposed, and we must be very careful not to abolish a customary practice just because it seems to us that the reasons for which it had been instituted no longer apply.

 

DEFINING THE CUSTOM 

 

            The Shulchan Arukh and the Rema write in Orach Chayyim 453:1:

 

With these things a person fulfills his obligation on Pesach: wheat, barley, spelt, oats, and rye (the customary practice, lekhatchila, is to use wheat [Maharil], but not with rice and other kitniyot. The latter also do not ferment, and it is permissible to prepare a cooked dish with them.

 

Rema: And there are those who forbid this (Tur; Hagahot Maimoniyot, chap. 5; and Mordekhai, chap. kol sha'a). And the customary practice in Ashkenaz is to be stringent, and one must not deviate. It is obvious, however, that we don't forbid, bedi'eved, if they [kitniyot] fell into the pot. So too it is permissible to light with oils made from them, and we do not forbid if they fell into the pot. And similarly it is permissible to keep kitniyot in the house (Terumat ha-Deshen, no. 113).

 

            We see from the Rema (in the name of the Terumat ha-Deshen) that it is permissible to keep kitniyot in the house over Pesach. That is to say: our concern is exclusively about the prohibition of eating, and not about the prohibition of keeping chametz in one's possession (as opposed to the prohibition of eating, which is punishable by karet, the prohibition of having chametz in one's possession is a regular negative command, the violation of which makes a person liable for flogging. Moreover, if a kernel of chametz becomes intermingled with the kitniyot, there is no violation of the prohibition of "bal yera'eh," because the chametz had been nullified, and nullification is effective regarding chametz less than the size of an olive. Regarding eating, on the other hand, one would violate a Torah prohibition if he ate enough such chametz [there is a view in the Rishonim that nullified chametz is not chametz even with regard to eating, but this was not accepted as law; Terumat ha-Deshen]).

 

            Similarly, the Rema writes (in the name of the Terumat ha-Deshen) that, regarding kitniyot, there is no prohibition of enjoyment. It is therefore permissible to light oil made from kitniyot.

 

            Another leniency: If kitniyot fell into a pot, they do not cause the food to be forbidden. The Mishna Berura (453:9) writes that even if there is only nullification by way of a majority, that suffices bedi'eved, and there is no need for nullification by way of shishim (sixty times as much permitted food as forbidden food).

 

            Rav Yitzchak Elchanan Spektor (Responsa Be'er Yitzchak, no. 11) writes that one may be lenient regarding kitniyot if one prepares the dish before Pesach, even if one adds the kitniyot intentionally. For before Pesach the kitniyot do not have the status of a forbidden food, and there is no issue of nullifying a forbidden food lekhatchila (regarding actual chametz we rule that "issura bala".) The Poskim, however, did not generally accept this leniency, and certainly today the companies that manufacture kosher for Pesach products do not rely on it (though there is room to combine this factor with other factors, as below regarding rapeseed).

 

UTENSILS WHICH HAD BEEN USED FOR KITNIYOT

 

            Regarding utensils in which kitniyot had been cooked, the Kaf ha-Chayim (453:27) writes in the name of the Zera Avraham that after twenty-fours leniency may be practiced, but afterwards he writes that the Zera Emet permits such utensils even on the same day.

 

            By strict law, even if food is cooked in a pot that had been used the same day (ben yomo) for kitniyot, the food is permitted, for (presumably) the kitniyot are nullified by the majority of non-kitniyot food. Lekhatchila, however, when cooking for a child or the like, one should set aside utensils for that purpose. This is the opinion recorded in Responsa Maharam Shik (Orach Chayim, Rema, end). According to Responsa Yechaveh Da'at (V:32), an Ashkenazi is permitted to eat in a Sefardi's home, even if he knows that on that same day he had cooked kitniyot in his pots.

 

WHAT ARE KITNIYOT?

 

            The Semak (in the continuation of the passage cited above) writes that the decree of kitniyot only applies to things that are similar to grain and are liable to become mixed up with them. He notes, however, that the common practice is to refrain from eating all kitniyot.

 

            In light of this, the Acharonim disagree about the definition of kitniyot:

 

1)      Species the edible portion of which is the seeds (and those seeds can be planted and give rise to new seeds).

2)      Species that can be ground into flour or the like, and there is concern about confusion with grain flour.

 

The leading halakhic authorities disagree about the matter. Rav Tzvi Pesach Frank (Mikra'ei Kodesh, II:60, p. 204) discusses peanuts. Since they are not cooked and since they are not "midi demidgan," it is exceedingly unlikely that they should become mixed in with wheat kernels. Nevertheless, he write, the common practice is not to eat peanuts on Pesach. On the other hand, Responsa Igrot Moshe (Orach Chayim III:63) permits eating peanuts on Pesach, but he writes that in places where it is customary to forbid them, they are forbidden.

 

            On the other hand, the common practice is to permit coffee and cocoa (Sha'arei Teshuva).

 

            The Chayei Adam (Nishmat Adam, Pesach, question 20) writes that it is customary not to eat potatoes on Pesach, because they are used to make flour. But the Poskim write that the common practice is to eat them (Responsa Divrei Malkiel, I:28).

 

In light of the aforesaid, there is room to raise a question about the common practice to forbid soybeans, especially in light of the fact that they were not available when the decree was first instituted. It should be stressed, however, that it is customary to practice stringency regarding soybeans.

 

KITNIYOT OIL

 

            It is clear from the words of the Terumat ha-Deshen cited by the Rema (above) that he was stringent about kitniyot oil, and permitted it only for lighting. Some authorities, however, permitted kitniyot oil, arguing that it is merely "zei'a" (sweat, moisture) (Marcheshet; and, based on another argument, Be'er Yitzchak, no. 11). Furthermore, oil is usually not the majority ingredient of the food product, and therefore the kitniyot oil should be nullified by the non-kitniyot ingredients.

 

USING THE KITNIYOT WHEN THERE IS NO CONCERN ABOUT FERMENTATION 

 

            The Gemara in Pesachim 39b states that wheat that was baked can no longer ferment and become chametz. The Shulchan Arukh accepts this ruling as law (463). And by strict law, grain that was scalded in boiling water can also not become chametz. The reason is that the boiling water destroys the enzymes needed for the fermentation process. Though the Shulchan Arukh writes that we are not familiar with the permitted manner of washing grains, and therefore we are stringent, there should he room to be lenient in the case of kitniyot. Although Semak forbids kitniyot even if they were first scalded in boiling water, the Or Zaru'a, however, is lenient on the matter (II:256).

 

            In 1895, there were those who wanted to use sesame oil on Pesach, and even agreed that the sesame seeds would not be washed before the oil is extracted. But the Torat Chesed, R. Yehoshua Leib Diskin, and Rav Shmuel Salant were all opposed. In 1909, Rav Zion Bretzlav approached Rav Kook in Yaffo (Orach Mishpat, no. 111), seeking a hekhsher for sesame oil. Rav Kook's court issued such a hekhsher, provided that the oil be produced without the sesame seeds coming into contact with water. In addition, Rav Kook insisted that all the oil be heated (the equivalent of scalding, so that the oil could no longer ferment), so that the allowance is supported by the lenient position of the Or Zaru'a.

 

            When news of Rav Kook's ruling reached Jerusalem, it created an uproar. In the end, his hekhsher was never utilized in practice.

 

            The kitniyot oils that are available today do not comply with Rav Kook's requirements. No special care is taken that the kitniyot not come into contact with water, and the oils are also not heated.

 

COTTONSEED OIL

 

            The Rambam writes (Hilkhot Kil'ayim 1:8):

 

Seeds are divided into three categories. The first is called grain (tevu'a), namely the five species: wheat, spelt, barley, oats and rye. The second is called kitnit, and this includes all edible seeds aside from grain, e.g., beans, peas, lentils, millet, rice, sesame, poppy and the like. The third is called garden seeds (zir'onei gina), namely, all other seeds that are not fit for human consumption, but the fruit of those seeds are fit for human consumption…

 

            It seems from here that cottonseeds, which are not fit for consumption, are not considered kitniyot. In light of this, Rav Frank (Mikra'ei Kodesh, Pesach, II:60), permitted cottonseed oil, and he writes that Rav Chayim also permitted this. A similar ruling is brought in the name of Rav Moshe Feinstein.

 

            Responsa Minchat Yitzchak, however, is in doubt about the matter (IV:114). The allowance regarding the use of cottonseed oil on Pesach used to be widespread in Israel, and this is the situation even today in the United States. In recent years, however, certain authorities in Israel have begun to forbid cottonseed oil, and today, among the mehadrin hekhshers, only Rav Landau permits it.

 

            The primary reason for the allowance is that the decree of kitniyot does not apply to non-edible seeds (as we saw in the Rambam that such seeds are not considered kitniyot), and cottonseeds are not edible.

 

RAPESEED LECITHIN

 

            Today there are products, primarily Elite chocolates, which bear the stamp: "For those who eat rapeseed" ("le-okhlei liftit"). What does this mean?

 

            There is a substance called lecithin, a fatty compound that binds oil to water. Mayonnaise, for example, is made by mixing oil and eggs. The eggs contain lecithin that binds the water, the main component of eggs, to the oil.

 

            Lecithin is also produced from soya and rapeseed. Rapeseed is an annual plant with yellow flowers, and is used in the production of lecithin and canola oil.

 

            Until a few decades ago, rapeseed oil was used only for industrial purposes, because it contains a certain acid that is bad for the human body (Tehudat Kashrut, p. 29). In recent years, however, it became possible to remove most of this acid, and this led to the expanded use of canola oil and lecithin made from rapeseed.

 

            Responsa Avnei Nezer (Pesach, 373) forbids the use of rapeseed, and according to him it falls into the category of kitniyot. In the addenda to his Hilkhot Pesach (no. 532), however, he writes that if the oil is first cooked without water, it can no longer ferment and there is room for allowance. Today, this is the way that canola oil is produced, with the initial extraction at 80 degrees Celsius with no contact with water.

 

            There are additional grounds for leniency: Like cottonseed, rapeseed is also inedible. And furthermore, we are dealing with an oil, and we saw that there are those who permit all kitniyot derivatives. Moreover, lecithin is not the major ingredient of chocolate (and it does not fall into the category of "davar ha-ma'amid," for it is possible to make chocolate without lecithin), and as we saw, kitniyot is nullified in a mixture in a majority of non-kitniyot ingredients, and according to some authorities, mixing kitniyot in non-kitniyot is permitted lekhatchila (Responsa Be'er Yitzchak).

 

            In practice, mehadrin hekhshers do not accept rapeseed, and therefore, it is preferable to avoid buying such products, for the overall kashrut supervision is likely to be less reliable.

 

(Translated by David Strauss)