Permitting a Questionable Mixture - Kefeila and Shishim

  • Rav David Brofsky

In last week's shiur, we discussed the concept of taam.  We explained that when two dissimilar tasting substances (MIN BE-SHEINO MINO), kosher and non-kosher, combine under the proper conditions, the taste of the prohibited substance might render the entire mixture un-kosher.  We also noted that while an ordinary mixture of dissimilar dry kosher and non-kosher pieces (YAVESH BE-YAVESH) will usually be permitted if the MAJORITY (ROV) of the pieces are kosher, in a mixture in which the non-kosher substance has imparted taste to the kosher substance (LACH BE-LACH), we may NOT rely upon a majority. 

Regarding this scenario, the gemara (Chulin 97a) presents two ways in which one may permit this questionable mixture.  Firstly, the determination of a "kefeila," literally a non-Jewish cook, that there is no taste of issur in the mixture, may permit a mixture.  Secondly, one may rely upon shishim, i.e. sixty parts of heter for each part of issur.

In this week's shiur, I would like to discuss the many questions which arise from this gemara, and their conceptual and practical ramifications. 

A.  "KEFEILA" – THE NON-JEWISH COOK:

The above mentioned gemara leaves a number of questions unanswered.

1.  WHO is this "kefeila," and WHY is he believed?

2.  Generally, the testimony of a non-Jew is not accepted.  Why in this case are we willing to permit the mixture based upon his determination?

3.  Under which circumstances may we rely upon a kefeila, and when may we, or must we, rely upon shishim?

There are two opinions in the rishonim, regarding the identity of this kefeila

1.  Some rishonim suggest that this kefeila is actually a PROFESSIONAL cook.

Tosafot (Chullin 97a) explain that we require a professional because "uman lo mar'ah le-nafsha," a professional would not put his reputation in jeopardy.  While we may normally be hesitant to accept the testimony of an ordinary non-Jew regarding matters of kashrut, this kefeila would not risk ruining his reputation and subsequently his livelihood, by incorrectly describing the taste of the mixture.  Therefore, his determination is admissible. 

The source for this principle seems to be a gemara (Menachot 43a) which says that while one may not purchase a garment with tzitzit already attached from an ordinary non-Jew, as we fear that he may have been the one who tied the tzitzit onto the garment, rendering the tzitzit invalid, we may purchase such a garment from a non-Jewish merchant.  The ordinary non-Jew may have been looking for a "quick buck," and therefore there is reason to suspect that the tzitzit may not be kosher.  However, the non-Jewish merchant sells these garments for a living, and therefore we may presume that it is NOT in his best interest to be caught lying.

The Acharonim debate the scope of this principle.  Some, for example, say that the non-Jewish merchant is believed ONLY in this case, as it is rare for a non-Jew to even be able to tie tzitzit.  However, we may NOT be permitted to purchase the STRINGS used for tying tzitzit, being that the strings are extremely easy to weave, and therefore it is likely that he may have weaved them himself, rendering them invalid for tzitzit.  Others disagree.

As one can anticipate, this principle has a broad range of interesting and practical ramifications.  Rav Moshe Feinstein zt"l (Igrot Moshe Y"D 1:55), for example, was asked whether a letter from the manager of a factory stating that they use only vegetable oil, and no animal fats, is acceptable, thereby permitting the food.  Rav Moshe zt"l, based on additional reasons as well, agreed that one may rely upon a letter from a company which states its ingredients, as we assume that the company would not risk its reputation (or even a lawsuit) and misstate the ingredients of a product.

Interestingly, the Rashba (Torat Ha-bayit) suggests another explanation of the gemara.  The "kefeila," a professional cook, is best qualified to recognize the presence of a any non-kosher taste in the mixture.  The Rashba ultimately rejects this interpretation. 

2.  Most Rishonim believe that the kefeila mentioned by the gemara is an ordinary non-Jew.  On may ask a non-Jew to taste this mixture, as it is permitted for him to taste it. 

If so, however, one may question his credence (neemanut) regarding matters of kashrut.  Generally, one would not accept the testimony of a non-Jew regarding these matters.  Why are we willing to permit the questionable mixture based on his determination that the taste of the prohibited substance is not noticeable?

The gemara (Bava Kama 115b) does imply that the indirect testimony of a non-Jew, as well as of a child, is at times accepted.  This is true when the non-Jew or child is not responding to a direct inquiry whose consequences are known to him, but only providing information inadvertently, in an indirect or "matter of fact" manner (MESIACH LEFI TUMO), being unaware of the consequences of his statement.  For example, the gemara tells of a man who once related how in his childhood his father would put him on his shoulders and bring him to immerse in a mikve and then feed him teruma at nightfall.  Based on his story the rabbis allowed this man to partake of teruma. 

However, even there the gemara notes that the credence given to such testimony, whether from a child or from a non-Jew, can only affect one's status relating to laws of rabbinic origin.  Therefore, the "kohen" was only permitted to partake in teruma de-rabbanan, i.e. teruma taken as the result of a rabbinic, and not biblical, obligation.

If so, regarding the permissibility of a mixture of permitted and non-kosher food, if a non-Jew were to indirectly, or "matter of factly" relate how he tasted or didn't taste a particular substance, only then would his story be accepted, and only relating to a rabbinic prohibition!!

Now, according to those who believe that "taam's" inability to be batel in a majority of heter is only of rabbinic origin, one who is "mesiach lefi tumo" regarding the taste of a questionable mixture may indeed permit that mixture.  However, for those who maintain that TAAM KE-IKAR is a Biblical phenomenon, (see last week's shiur) even this type of testimony is unacceptable!!

The acharonim discussed this question at great length.  The Shakh (Y"D 98) suggests that since the true taste of the mixture will ultimately be revealed (MILTA DE-AVIDE LEGELUYE), the kefeila would not be so brazen as to lie in such a case. 

Based on this explanation, some explain why the Rambam (Hilkhot Ma'akhalot Asurot 15:30) seems to believe that a non-Jew may even be directly asked regarding the taste of the mixture.  His testimony is more credible being that the truth will ultimately be revealed. 

B.  "KEFEILA" VS "SHISHIM":

As mentioned above, the gemara (Chulin 97a) states that a mixture of dissimilar substances (MIN BE-SHEINO MINO) can be permitted based on the determination of a kefeila, or when there are sixty parts heter per part of issur (shishim).  We may ask ourselves, what is the difference between these two methods of permitting a questionable mixture?

Seemingly, the question of how to permit a questionable mixture should depend on the reason why taam prohibits a mixture.  Last week, we presented two understandings of the prohibition of "taam," or of the phenomenon of "taam ke-ikar," i.e. that taste is akin to the substance itself. 

On the one hand, some suggest that taam is important in that it prevents the "bittul" from taking effect.  While we generally allow ourselves to "ignore" the presence of a prohibited substance as long as the heter is the primary (majority) ingredient in the mixture, how can we "ignore" the issur if its taste is still discernable? In other words, taam merely serves as an indicator that there is still a noticeable PRESENCE of issur in the mixture. 

On the other hand, we suggested that the Torah might view any substance whose taste is that of a prohibited substance as the prohibited substance itself.  In other words, the Torah seems to have prohibited the very TASTE of issur, regardless of its percentage or concentration in the mixture. 

It would seem to follow, that if the PRESENCE of a prohibited substance, indicated by the taam still noticeable in the mixture, is problematic, then one must determine that the prohibited substance's presence is no longer statistically significant.  If, on the other hand, the TASTE alone is that which prohibits a mixture, one must merely determine that the taste is no longer noticeable.  As we shall see, it seems that the Rishonim debate this very question in their attempts to explain our gemara. 

The gemara leaves a number of questions unanswered.  When may we rely upon the determination of the kefeila (i.e. when the ratio is 1/60 or even less, 1/40)? May we always rely upon shishim? Even in the presence of a kefeila? Even if the taam is still discernable?

I would like to discuss four explanations of our gemara. 

1.  The R"I maintains that one may rely upon a kefeila EVEN when there are fewer than sixty parts of heter per part of issur.  However, when there are sixty parts of heter, one does NOT even require that a kefeila taste the mixture, and it is permitted.

The very fact that the kefeila's determination can permit the mixture EVEN in the absence of sixty parts of heter, seems to indicate that the R"I believes that it is the TAAM which prohibits a mixture, and once we determine that there is no longer a taste of issur, the mixture should be permitted.  Therefore, one can either rely upon the determination of a non-Jew, or, when there are shishim, one can safely ASSUME that there is no more taste of the issur. 

If so, it would seem to follow that if one DID taste the "taam" of the issur, even if there are sixty parts of heter, the mixture would be prohibited.  Shishim is an estimate of when there is no taam, but it is not perfect.  This indeed is the position of the Beit Yosef. 

The Arukh Ha-shulkhan, however, disagrees.  He claims that as long as there are sixty parts of heter, the taste of the issur, even if discernable, has been significantly weakened, and the Torah did not prohibit a taste which has been so severely diluted. 

2.  While the R"I seems to focus on the TAAM of the mixture, the Ramban seems to accept BOTH the notion of TAAM and PRESENCE, depending on what type of substance is mixed in with the heter. 

The Ramban distinguishes between the issur itself, such as prohibited fat (cheilev) falling into a permitted soup and then dissolving, as opposed to a piece of non-kosher meat which falls into this soup, and is then removed but leaves behind the taste of (non-kosher) meat.  In the first case, the mixture can only be permitted if there are shishim.  In the second case, one may rely upon a kefeila even without sixty parts of heter, and in the absence of a non-Jew, one may then rely upon shishim.

What is the difference between the two cases?

The Ramban distinguishes between the PRESENCE of issur and its TAAM, as well as between the function of SHISHIM as opposed to the function of a KEFEILA.  In the first case, not only must I determine that the taste of the issur is no longer present, I must also determine that the PRESENCE of the issur itself it statistically insignificant.  This can only be achieved by SHISHIM.  In the second case, I am only concerned with the TAAM of the issur, in which case I may rely upon a KEFEILA.  In his absence, I may rely upon shishim as an indicator of the presence of taam.

(Note: the Ramban clearly sees a QUALITATIVE halakhic difference between fat which has melted into the mixture and the taam left behind a piece of non-kosher meat which was removed from the mixture.  Alternatively, one could claim that this difference is merely QUANTITATIVE, i.e. how concentrated is the taam.  This assumption is questionable, as we may see in future shiurim.)

3.  Rashi maintains that one may only rely upon a kefeila when there are sixty parts heter per part of issur, and in the absence of a kefeila, one may rely upon shishim.  However, as long as there aren't sixty parts heter per part of issur, the mixture cannot be permitted.  This position seems to be quite difficult to understand.  If the purpose of a kefeila is to discern if there is any taste of issur, why is he employed where there is shishim? And if there is shishim, which would seem to imply that there is very little likelihood of there being any taste of issur, why is the kefeila necessary?

The acharonim discuss this difficult opinion of Rashi.  One can suggest one of two possibilities.

The Minchat Kohen suggests that while I am truly concerned with the presence of taam, I am hesitant to rely upon the non-Jew when his determination is radically improbable.  In the absence of shishim, one can assume that there is still taam of issur in the mixture, and therefore the kefeila's determination counters our natural assumption.  In this case, he is not to be believed.  However, when his determination SUPPORTS our intuition, his conclusion is credible.  However, in the absence of a kefeila, I am willing to rely upon shishim as indicating that there probably is no taam in the mixture.  In other words, Rashi fundamentally agrees with the R"I, but is more hesitant to rely upon the kefeila's testimony. 

Alternatively, one could suggest that Rashi is always concerned with both the PRESENCE and the TAAM of the prohibited substance.  Therefore, he requires not only that shishim render the issur insignificant, but also that preferably a kefeila should determine that there is no prohibited taste remaining in the mixture.  In the case that one cannot ask a kefeila, shishim may ALSO indicate that there is probably no taste left in the mixture. 

I would like to mention one last opinion, which may complete our understanding of the relationship between kefeila and shishim.

4.  The Rambam (Hilkhot Ma'akhalot Asurot 15:30) implies that in all cases one may and should ask a kefeila.  In his absence, one may rely upon shishim.  Seemingly, his opinion is very similar to Rashi, except that a kefeila may be used EVEN WITHOUT sixty parts of heter.  If so, it would seem to follow that the Rambam views shishim as a valid, while not preferable, means of determining whether there is any taste of issur, like the R"I. 

However, in a previous halakha (15:4) the Rambam explains that while generally an issur should be batel in a majority of heter, miderabbanan (rabbinically) it is prohibited "until the prohibited substance is lost by fact of its awesome insignificance" (me-otzem miutu).  Here, the Rambam implies that shishim is not merely a means of determining whether there is any taste of issur.  Rather, it functions as a measurement of statistical insignificance.  If so, what function does the kefeila play, and how can the determination of a kefeila be accepted even in the absence of shishim?

We may suggest that unlike the R"I for whom TAAM is that which prohibited the mixture, and unlike the Rambam and possibly Rashi for whom both TAAM and PRESENCE of issur were problematic, the Rambam may believe that fundamentally, it is the PRESENCE alone which prohibits the mixture. 

In order to permit a mixture, one must determine that the PRESENCE of the issur is no longer significant.  One can achieve that through a kefeila, who will check if its presence is still noticeable.  In the absence of a kefeila, one must choose a ratio at which one can assume that the presence of issur is insignificant.  That is the role of shishim.  It is "lost by fact of its awesome insignificance" (me-otzem miuto).

THE HALAKHA:

Rav Yosef Karo, in the Shulkhan Arukh (Y"D 98:1), posits that one should preferably ask a non-Jew, and in the absence of a non-Jew, one may rely upon shishim.  He also notes that the non-Jew should not be aware of the consequences of his answer but rather, the question should be asked in a general way.

Rabbi Moshe Isserlis, in the Rema, notes that the common custom is not to rely upon the determination of the non-Jew, but rather, only on shishim. 

The acharonim discuss why we no longer rely upon the determination of a kefeila.  The Bach suggests that since today it is well known why a non-Jew would be asked regarding the taste of a mixture, his testimony cannot be considered "mesiach lefi tumo."  Others suggest that we have generally become more skeptical about the credibility of non-Jews.  Still others suggest that we have become skeptical of all "taste tests."  A practical difference might involve a kohen checking for the taam of teruma which accidentally fell into a mixture in order to permit it to a non-kohen, or even whether one could taste a cake baked in a meat pan to determine whether there is any taste of meat, in order to permit its consumption with milk. 

Next week, we will continue our discussion of bittul be-shishim, addressing cases in which taam may NOT be batel be-shishim, and cases in which shishim may permit a mixture EVEN if its taam is still noticeable.