Permitting Questionable Mixtures: "Taste Tests" and "Shishim" Continued

  • Rav David Brofsky

Last week, we discussed the two methods of permitting questionable mixtures, kefeila (the determination of a non-Jew that the taste of issur is no longer discernable) and shishim (sixty parts of heter per part of issur).

 

In our attempt to understand the relationship between these two methods, we reviewed the different ways to understand the phenomenon of "ta'am ke-ikar" (the taste is akin to the substance itself). On the one hand, one may believe that as long as one can discern the taste of the prohibited substance, one cannot ignore the issur's presence. The taste prevents one from relying upon bitul (nullification of the issur), as the issur's presence is clearly not insignificant. Alternatively, the Torah may have simply prohibited anything whose taste originated from a prohibited substance.

 

Accordingly, we suggested that the roles of kefeila and shishim might correspond to these understandings. We may view the role of kefeila or shishim as determining that there is no longer a significant presence of issur, either because the taste of issur can no longer be discerned, or because of the issur's statistical insignificance. Or, kefeila and shishim may merely inform us that the mixture no longer carries the taste of the prohibited substance.

 

This week, I would like to address three additional questions, which I hope will complete our understanding of the topic.

 

  1. Milta De-avida Le-Ta'ama - Prohibited Spices:

 

Last week we hinted at the following question: what if the taste of the issur is still discernable even after we have reached shishim! The question is complex, as it may depend upon the origin of the prohibition of ta'am (biblical or rabbinic), the nature of the prohibition of ta'am, and the quality of taste prohibited by the Torah.

 

The gemara (Avoda Zara 69a and Chullin 97b) notes that tavlin (spices) that is composed of teruma or other prohibited substances is NOT batel. The gemara, however, does not explain the rationale for this halakha, nor does it indicate the scope of this exception, i.e., just spices or other prohibited substances.

 

As we shall see, the Poskim seem to debate whether the notion that "milta de-avida le-ta'ama" - i.e., that those things that lend taste to a mixture even in a ratio above 1/60 are not batel - is a natural outgrowth of our understanding of "ta'am ke-ikar," or an exception to it. 

 

As we learned in our last shiur, some claim that ta'am is always prohibited, regardless of whether there is shishim. For example, last week we saw the Beit Yosef's explanation of the R"i.  The R"i asserted that the determination of a kefeila can permit a questionable mixture even without sixty parts of heter. This seems to indicate that the TASTE of issur, regardless of its statistical presence, prohibits a mixture. Shishim, according to the R"i, is merely a percentage at which one can safely assume that the ta'am of issur is no longer discernable. If, however, the Beit Yosef argues, one can still discern the taste of issur even after shishim, the mixture should remain prohibited!

 

If so, one could argue that the halakha that "milta de-avida le-ta'ama" is not batel seems to be a natural outgrowth of our understanding of "ta'am ke-ikar." Tavlin (spices) is unique only in that it engenders the assumption that its taste is discernable even after shishim.

 

However, we cited other opinions that seem to view shishim as a point at which we can no longer claim that the issur is a significant presence, and therefore we may employ the halakha of bitul. If so, the halakha that "milta de-avida le-ta'ama" is not batel seems to be out of place. Once the issur has been rendered STATISTICALLY insignificant, why should its taste make a difference?! It seems that this very question convinced some to claim that this halakha is actually only of rabbinic origin (see Shakh 98:29). In other words, the prohibition of "milta de-avida le-ta'ama" is an exception to our understanding of "ta'am ke-ikar," made possible only by rabbinic legislation!

 

I would like to mention a third approach, offered by the Arukh Ha-Shulchan. Rabbi Yechiel Mikhel Epstein argues with the above-mentioned Beit Yosef, and claims that R"i would actually permit a mixture in which the taste of issur was still discernable as long as there are sixty parts of heter (shishim)! He argues that at that ratio, the taste of issur has been weakened (nechlash), and is no longer prohibited. Tavlin, however, differs from regular ta'am. It is so strong that even as a minority in a mixture, after shishim, its ta'am is still considered potent and is still prohibited by the Torah.

 

The Rema (YD 98:8) cites this halakha and adds that only tavlin  that is itself a prohibited substance (teruma, orla, avoda zara, etc.) is not batel, as opposed to spices or salts which have absorbed prohibited substances.

 

  1. Chozer Ve-Ne'or:

 

In the previous discussion, we examined a situation in which the taste of a prohibited substance is still discernable even after shishim. In this section, I would like to address a similar (yet possibly opposite) scenario. Let us imagine that a small amount of issur, introduced into a permitted mixture, is batel in shishim. However, afterwards, more of the prohibited substance is added, which when combined with the previous amount, shifts the ratio between issur and heter, leaving the heter at under shishim, with the taste of the issur discernable in the mixture.

 

Do we assume that once the original issur has been rendered insignificant, it cannot rejoin that which was added and prohibit the mixture? Or might we suggest that we must reevaluate the status of the mixture and possibly conclude that since whenever a mixture carries the taste of a prohibited substance, it itself is prohibited, this mixture should therefore be rendered non-kosher?

 

The gemara (Avoda Zara 73a) cites the opinion of Rav Dimi who states that if one pours prohibited wine into a container of permitted wine, each drop of wine that falls in is batel (rishon rishon batel); therefore, even after dripping into the permitted wine for an entire day, the mixture is permitted. While the laws of yayin nesekh (wine prohibited because of pagan worship) in general, and this sugya in particular, are rather complex, I would like to examine two explanations offered by the Rishonim.

 

The Ra'avad explains that although the gemara ultimately rejects the halakha of Rav Dimi, that is only in regard to prohibited wine. However, regarding other prohibitions, the principle of "rishon rishon batel" IS accepted and therefore once an issur has been rendered batel, it may never again combine with an additional quantity of the issur and prohibit the mixture.

 

This opinion, of course, is extremely difficult. In fact, most Rishonim, including the Ramban, reject the Ra'avad's understanding of the gemara. The Ramban asserts that a prohibited substance rendered batel may be "chozer ve-ne'or" (literally, "reawaken") and join the newly added issur in prohibiting the mixture.

 

The Rema (99:6) adopts the position of the Ramban, and, indeed, this is the more understandable position. How can a mixture that tastes like the prohibited substance, and does not even currently contain sixty parts of heter for each part of issur be permitted?

 

Seemingly, the Ra'avad's position should be linked to a certain understanding of ta'am and bitul be-shishim. If shishim is not merely a "reasonable guess" at when the taste of issur is no longer discernable, but rather, a halakhically recognized percentage at which the prohibited substance is deemed insignificant, one MIGHT suggest that at that point not only is the issur to be ignored, but it forever loses its status of issur, and may even join the heter in rendering the new issur to be batel.  

 

  1. Chozer Ve-Ne'or and Yavesh Be-Yavesh:

 

While the suggested explanation for the Ra'avad may seem difficult when speaking of a lach be-lach (all-liquid) mixture, a yavesh be-yavesh (all-solid; lit., all-dry) mixture might be different.

 

The Rishonim debate whether the principle of "chozer ve-ne'or" also applies to a dry mixture of prohibited substances. Some claim that if a piece of non-kosher meat was already batel in a dry mixture, i.e., if its presence and percentage were already known, then we apply Rav Dimi's principle of "rishon rishon batel" and even if subsequently another piece of non-kosher meat falls in, raising the ACTUAL percentage of non-kosher meat to "rov" (a majority), the mixture is still permitted.

 

This application may depend upon how one views the bitul of an issur in a dry mixture (yavesh be-yavesh). Do I say that "chances are" that the piece I take will be kosher, and therefore I may rely upon the majority, or might I instead believe that bitul works in a very conceptual, halakhic fashion. A piece of meat that has been batel is no longer deemed prohibited. "Issur nehepakh le-heter" - the prohibited substance is transformed into a permitted substance.

 

Seemingly, according to the former, the halakha should be that the issur is "chozer ve-ne'or," as the chances of eating a kosher piece are now no longer in one's favor. However, according to the latter, one may really believe that "rishon rishon batel," especially in the world of "yavesh be-yavesh," which isn't bound by notions of ta'am.

 

The Rosh, however, seems to adopt a difficult position. The rishonim debate whether in a case of "chad be-trei" - two pieces of kosher meat mixed with one non-kosher piece - one may actually consume ALL of the pieces. The Rosh claims that one SHOULD NOT view the bitul of yaveh be-yavesh as a form of "relying upon the majority of chances."  If that were so, eating all three pieces, especially at once, certainly entails consuming the non-kosher piece. Rather, "issur nehepakh le-heter," the prohibited piece is transformed into a permitted piece, and ALL the pieces may be eaten.

 

If so, it would seem to follow that if after a prohibited piece is batel, another prohibited piece is added, taking away the ACTUAL majority of kosher pieces, the HALAKHIC majority still holds and the pieces should still be permitted! The Rosh, however, believes that the original prohibited piece is "chozer ve-ne'or" and the entire mixture is now prohibited. Doesn't this contradict the earlier decision of the Rosh?!

 

Seemingly, one must suggest that the Rosh does not really believe that the issur is forever "nehepakh le-heter," but rather that the identity of the ENTIRE mixture is determined by the rov. Therefore, if the majority of pieces are permitted, one should relate to the ENTIRE mixture as a mixture of permitted substances. However, if the rov changes, so might the identity of the mixture, from heter to issur, and therefore all pieces of the mixture are now, once again, prohibited. Therefore, the Rosh writes, we should re-evaluate the mixture and employ the halakha of "chozer ve-ne'or."   

 

The Rema (99:6) writes that the principle of "chozer ve-ne'or" applies to ALL mixtures, whether of dissimilar or similar, dry or wet, substances.

 

  1. Te'imat Yisrael:

 

Until now we have assumed that either a non-Jew must taste this questionable combination, or there must be at least sixty parts of heter per part of issur, in order to permit the mixture. Our question has been, are we interested in determining that there is no taste, or in concluding that the presence of issur is so insignificant that it may be ignored? However, one may now ask, can a Jew taste the mixture to determine if the ta'am of issur is discernable?

 

The Shulchan Arukh (YD 42:2-3) notes that an animal missing a gall bladder (mara) is deemed a "treifa" and must not be consumed. Occasionally, the gall bladder cannot be found in the inner cavity, but we suspect that it may have "dissolved" into the surrounding area. The only way to determine if it was present, and thereby to permit the animal for consumption, is by tasting the area. If a bitter taste can be detected, clearly the gall bladder was there and the animal is permitted. However, if no bitter taste is discerned, it should be considered a treifa. The Shulchan Arukh permits one to employ this taste test.

 

Regarding our topic, the acharonim ask, why can't one simply taste the mixture to determine if the taste of non-kosher taste is present, just as one may taste the area of the gall bladder in order to determine if the animal is a treifa.

 

The Taz (98:2) actually agrees, in theory, that one could taste the mixture to check for the presence of ta'am issur. Tasting alone is apparently not problematic, he asserts, just as one may check for the gall bladder in the above scenario. Furthermore, one may taste (with one's tongue) on a fast day (see OC 5367 - and Mishna Berura - regarding washing out one's mouth), and one may even taste a piece of meat to check if it was salted, despite the risk of consuming blood from an unsalted piece.

 

In our case, however, merely tasting the mixture would be insufficient. In order to discern the taste, or lack of taste, of a non-kosher product, one would have to swallow the issur, which is certainly prohibited.

 

The Shakh disagrees. Tasting prohibited substances is always prohibited. The Shulchan Arukh permitted checking for the gall bladder only because it is extremely rare that an animal is missing its gall bladder, and therefore the rabbis permitted one to taste the questionable area. Similarly, one may NOT taste a piece of meat to determine if it was salted lest there be blood in the meat. Therefore, the gemara insists that one consult with a kefeila, or rely upon shishim, if one wishes to permit a questionable mixture.

 

 

Next week we will address the uniqueness of a mixture of similar substances (min be-mino), and discuss the debate regarding the possibility of bitul in such a mixture. Furthermore, we may ask whether the halakhot of bitul only relate to accidental mixtures of permitted and prohibited substances, or whether one may intentionally bring about a situation of bitul, i.e., "bitul issur le-khat'chila."