Shiur #6: Yesh Lo Matirin
Yeshivat Har Etzion
Shiur 06: Yesh Lo Matirin
by Rav Moshe Taragin
Typically, a prohibited substance which become mixed with a permissible one confers an issur upon the host substance the resulting mixture is known as a ta'arovet. If the prohibited item is significantly smaller than the permitted item, it becomes 'batel,' meaning it loses its identity and can be eaten along with the permitted item. In cases in which the prohibited item remains easily identifiable, it must be removed, but the remaining mixture can be eaten even though it contains traces of the prohibited item's taste. Generally the prohibited item becomes permissible if is outnumbered by a ratio of sixty-to-one (batel b'shishim).
There are, however, certain exceptions to these general rules. Certain items remain forbidden, and thus prohibit the entire mixture, even though they exist is quantities less than one-sixtieth of the mixture. One example is a davar she-yesh lo matirin an item which is currently forbidden, but whose prohibition will eventually fade. For example, an item born on Shabbat (nolad, which is forbidden as a form of mukzeh) will become permissible after the passage of Shabbat. If it becomes mixed with permissible food, the entire mixture remains forbidden, even if the permissible substance outnumbers the forbidden material by more than sixty-to-one. How should this principle be understood?
The simplest approach to the issue stems from a gemara in Beitza (3b) which suspends the general principle of safek de-rabanan le-kula in cases of davar she-yesh lo matirin. Generally speaking, any safek (doubt as to the correct halakha) surrounding a rabbinic prohibition is decided in a lenient manner. And indeed, since a nolad item is only a rabbinic safek issur, it should be permissible. The gemara in Beitza explains, however, that since nolad is an issur of davar she-yesh lo matirin, we do not act leniently in a situation of safek. Because simply waiting until after Shabbat will enable the item to be eaten without trace of issur, we do not utilize the typical leniency that we would otherwise employ. The identical logic can be applied to the issue of eating a ta'aroves, even one whose permissible content outweighs its forbidden content - if the forbidden item is yesh lo matirin, then simply waiting out the issur allows the item to be eaten with no worry.
The Ran, in his commentary to the first mishna in the 5th chapter of Nedarim, provides a different reason for why a ta'arovet of davar she-yesh lo matirin remains forbidden even when its ratio is more than sixty-to-one. Essentially, the concept of bitul results from an encounter between clashing forces assur and muttar items. As each item's identity is independent, each one seeks to impose its identity upon the other. If the permitted item outweighs the forbidden one by a sizable enough majority, it triumphs, whereas in less lopsided cases the forbidden item retains its identity. A forbidden item that will eventually transform into a permissible one is not inherently defined as forbidden, since its title is fleeting. Without the inherent status of 'issur,' there is no clash or collision, and bitul does not occur. It emerges that according to the gemara in Beitza, bitul of davar she-yesh lo matirin is artificially suspended, because of a general wariness to apply leniencies for temporary issurim. According to the Ran, however, the very dynamic of bitul is inherently inapplicable to yesh lo matirin substances.
Conceivably, the question of why a davar she-yesh lo matirim remains forbidden may impact upon the scope of the rule. In other words, it might effect which types of items halakha would recognize as yesh lo matirin, for which it would suspend the laws of ta'arovet. Perhaps the most famous (and practical) issue surrounds the status of chametz. It is clear that the bitul process is suspended for chametz chametz is considered assur be-mashehu, forbidden in mixtures even in negligible amounts. What is less clear is why chametz is treated with such stringency. Many authorities claim that the stringency is intrinsic, based upon the severity of the issur of chametz. However, the Rambam (Ma'achalot Assurot 15:9) and the Ramban (in his comments to Pesachim) both claim that the strictness with regards to chametz stems from its status as a davar she-yesh lo matirin, since it may be eaten (at least on a de-oraita level) after Pesach has passed. Those Rishonim who maintain that the issue is the intrinsic strictness of chametz counter that chametz should not be considered yesh lo matirin, since it will continually cycle between being permissible and being forbidden (Mordechai in Pesachim and the Ohr Zaruah). After all, at the conclusion of Pesach the prohibition will vanish, but it will return a year hence when Pesach returns. An issur which fades, only to reappear later on, should not be considered yesh lo matirin.
Now, if the stringency associated with yesh lo matirin items was based on the practical logic suggested by the gemara in Beitza i.e. that waiting will allow the item to be eaten under less questionable circumstances - we would certainly side with the Rambam and the Ramban. Chametz can certainly be eaten after Pesach, so it would be better to wait than to allow a ta'arovet. If, however, we apply the Ran's logic that yesh lo matirin is considered a not-yet permissible item, which doesn't clash with totally permitted items, we would not define chametz as a davar she-yesh lo matirin - because its issur is cyclical, we would consider it to be totally forbidden. As a fully prohibited item, then, it could participate in the process of bitul, and as such, the prohibition of a chametz ta'arovet must result from chametz's intrinsic strictness, not from the fact that it will be permitted in the future. In fact, the Tzelach (written by the Noda be-Yehuda) in his comments to Beiza 4b, establishes this association between the reason underlying yesh lo matirin and the application to chametz.
Conceivably, this question might impact upon standard mukzeh as well as items she-yesh lo matirin. Nolad items become permanently permissible after Shabbat or Yom Tov, and are therefore yesh lo matirin. Mukzeh items, however, could be seen as re-establishing their prohibition with the arrival of the next Shabbat. In fact, it appears from Tosafot in Beiza (10b) that mukzeh is considered davar sheyesh lo matirin. Many have suggested that the Rambam too would consider mukzeh to be a davar she-yesh lo matirin, in keeping with his definition of chametz. (See Sefer Sha'ar Hamelech to Hilchot Yom Tov 2:6).
The scope of yesh lo matirin might be at issue in a second question as well, regarding an item whose prohibition is based upon uncertainty. For such an item, the passage of time will not eliminate the prohibition, but rather elucidate it. One example would be an egg which is born from an animal which may or may not be a tereifa (terminally ill, and therefore forbidden to eat). We cannot unquestionably determine the mother's status until either a year passes (at which time it will be evident that the animal is indeed healthy), or the animal gives birth (in which case the same judgement will be rendered). Would this egg be considered a davar she-yesh lo matirin? Most authorities state that it would not be considered yesh lo matirin; however, the Kessef Mishna (in his commentary to the Rambam Hilchot Avoda Zara 7:10) claims that it would be. Presumably, the Kessef Mishna viewed the halakha in the practical manner suggested by the gemara in Beitza; since waiting will clarify the matter, and possibly remove any trace of the issur, there is no reason to apply any leniency. If we endorse the Ran's logic, however, the egg should participate in some form of ta'arovet bitul, despite its uncertain status. The issur being discussed is an absolute one - if the mother is indeed determined to be a tereifah, then the egg will never become permitted. If the egg ever is to become permitted, it will be because we become convinced that its mother is healthy, not because the issur itself fades away. As such, it should participate in bitul, and not be considered a davar she-yesh lo matirin. Perhaps the Rishonim who disagree with the Kesef Mishnah do so for this reason.
A structurally similar question concerns an item whose issur will fade, but whose quality will deteriorate. Most Rishonim (Mordechai in Pesachim 2:573, and the Rashba and Ran on Beiza 4b) all claim that such an item should not be considered a davar she-yesh lo matirin. In fact, whichever logic we adopt would yield this conclusion. If the suspension of bitul were based upon the practical logic of waiting out the prohibition, the pending deterioration would not allow for such a policy. Alternatively, the item would be considered fully assur, and a candidate for bitul, even though it will eventually be permitted, because the item in its current, non-deteriorated state will never witness the removal of the issur. Indeed, the same Ran, who claimed that a yesh lo matirin item is inherently not a candidate for bitul, denies yesh lo matirin status to items which may deteriorate. Rabbi Akiva Eiger (in his comments to Yoreh De'a 102), quotes the dissenting opinion of the Yam shel Shlomo, who does accord yesh lo matirin status to items whose fading issur will be accompanied by significant deterioration. The best way to defend this dissenting opinion would be to adopt a modified version of the Ran's logic. Since the issur will vanish, the item cannot be defined as inherently forbidden, and thus cannot participate in bitul, despite the deterioration.