YESHIVAT HAR ETZION
ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)
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Hilkhot Kashrut

Shiur #26: The Prohibition of Basar Be-Chalav
An Overview
By Rabbi David Brofsky

Introduction

The Torah commands in three places, "Do not cook a kid in its mother's milk" (Shemot 23:19 and 34:24; Devarim 14:21).

The Gemara (Kiddushin 56b and Chullin 113b) asserts that there are actually three distinct prohibitions.  Firstly, as the verse states, one may not cook meat and milk together.  Secondly, one may not eat a mixture of meat and milk which were cooked together.  (Consumption of milk after meat, and even of meat with milk if they were not cooked together, is only rabbinically prohibited.)  Thirdly, one may not even derive benefit from a mixture of basar be-chalav.  

The body of law relating to basar be-chalav is vast.  This week, we will raise only a few of the many issues related to basar be-chalav.  

Ta'amei Ha-Mitzvot – the Reason for the Prohibition of Basar Ba-Chalav

While there is room to inquire about the reason for any prohibited food, it seems that the prohibition of basar be-chalav is particularly unique and curious.  Here, the Torah doesn't restrict the consumption of a specific species, but rather prohibits the MIXTURE of two otherwise permitted foods.  Furthermore, the Torah seems to focus on the creation of this mixture, specifically of a kid in its mother's milk.  Why?

The commentators debate the reason for this prohibition.  As this shiur deals primarily with halakhic issues, we shall merely note the major approaches towards answering this question.

We can identify at least three approaches among those who attempted to locate the "reason" behind this prohibition.

The Ramban (Devarim 14:21), for example, claims that the juxtaposition of "You shall be a holy nation unto your Lord your God" and "You shall not cook a kid in its mother's milk" comes to teach us that the mixture is not inherently despicable, but rather represents human cruelty, from which we must distance ourselves.

In contrast, the Rambam, in his Moreh Nevukhim (3:48), adopts a historical approach.  He speculates that the "haughty" (gass) nature of both meat and milk, as he perceived them, as well as the broader context of the verses (i.e., a discussion of the three major festivals), would seem to imply that basar be-chalav is somehow linked to a pagan ritual.  This approach is confirmed by the Abarbenel (Shemot 23), who writes that even in his time it was common among pagan tribes to eat meat and milk mixtures at their ritual gatherings.  Consequently, the Torah enjoins us from eating a mixture that is associated with idolatrous practices.  

Others suggest that the mixing itself of these two different species is problematic.  The Sefer Ha-chinukh (92), for example, alludes to a mystical problem in the union of meat and meat.  Rav Shimshon Rafael Hirsch (Chorev 4:57 and Shemot 23:19) develops a more symbolic approach.

How Many Prohibitions?

How many prohibitions of basar ba-chalav are there? In practice, as we mentioned, one may not cook, eat, or derive benefit from a mixture of basar be-chalav.  What is the relationship between these three prohibitions? 

One might simply say that there are THREE SEPARATE and unrelated prohibitions. The Gemara (Kiddushin 56b), searching for the source of this "triple" issur, quotes the opinion of the school of Rabbi Yishmael, which asserts that the verse is stated three times in order to teach that there are three prohibitions of basar ba-chalav.  One might deduce from this that there are actually three distinct prohibitions, each one learned from a separate verse.

Alternatively, one may claim that the BISHUL, or creation, of the mixture, is the primary issur, and as a result, one may not consume that which was created through issur. 

The simple reading of the verse itself may support this. The wording of the verse, "Do not COOK a kid in its mother's milk," would seem to indicate that the primary prohibition is that of cooking.  This is supported by those commentators who explain that the prohibition is linked specifically to the cooking of meat and milk, or more specifically of a "kid in its mother's milk."  If so, one may view the prohibitions of eating and benefit as mere extensions, or outgrowths, of the original issur.  If cooking meat and milk together is undesirable, then certainly one should not derive any type of benefit from such a mixture. 

Furthermore, the Gemara, in another attempt to find a source for this three-part issur, may also support this theory. The Gemara (Chullin 113) says,  

How do we know that one may not eat basar be-chalav? It says, "One should not eat anything which is abominable" [to'eiva; Devarim 14:3] – anything which I despise is included and may not be eaten.  And how do we know that it is prohibited to derive benefit from this mixture? As Rav Abahu says, any place where the Torah says "Do not eat," an issur hana'a is implied, unless the Torah explicitly says otherwise, as it does regarding neveila.

According to this source, it would seem that the prohibition to eat basar be-chalav is merely an outgrowth of the prohibition of cooking it.  Furthermore, the prohibition of benefiting (hana’a) appears to be part of the issur akhila, and not a separate prohibition.  We will return to this point later.

On the other hand, the EATING of milk and meat may be the primary issur, and bishul may be viewed as a "seyag," or precautionary prohibition, intended to distance one from this prohibition.

The Rambam, for example, writes (Hilkhot Ma'akhalot Asurot 9:2): 

The Torah did not mention the prohibition of eating because it had already mentioned the prohibition of cooking, and therefore one need not mention eating.

The Rambam implies that one may draw a "kal va-chomer": if bishul is prohibited, certainly akhila is as well! What is the nature of this "kal va-chomer"? Apparently, the Torah prohibited not only EATING basar be-chalav, but also the PREPARATION for eating it.  Therefore, since bishul - the preparation of basar be-chalav – is prohibited, it is clear that eating the mixture is also prohibited.

Interestingly, Rav Moshe Soloveitchik, based on this Rambam, ruled that one may cook meat and milk together for a scientific experiment in which there is clearly no intention to eat the mixture (see Rabbi Hershel Schachter's "Peninei Ha-Rav," p. 152).

Finally, we should inquire whether "eating" and "benefiting" are viewed as separate prohibitions, or should they instead be viewed as two aspects of a larger issur of "consumption"? We will briefly allude to this question in the next part of this shiur.

It is worth noting that both the Behag and the Resag seem to count only the prohibition of COOKING basar be-chalav in their list of 613 mitzvot.  However, most "monei ha-mitzvot," (Rambam, Smag, Smak, Yerei'im and the Chinukh) count two prohibitions.  They include the issur hana'a in the prohibition of akhila, as the Gemara implies.  Some (see Tashbetz) even list three separate mitzvot.

Which Animals? McDonald's Cheeseburgers and Dog Food

The Mishna (Chullin 103b) teaches, "It is prohibited to cook all meat with milk except for the meat of fish and locusts."

What about non-kosher species (beheima temei'a)? What about meat from a kosher species(beheima tehora) that was improperly slaughtered (neveila)? What about chicken?

Regarding the meat of a non-kosher species, the Mishna (Chullin 113a) states that one may cook this meat with milk and even derive benefit from the mixture. The authorities debate whether there is a prohibition of "mar'it ayin," i.e., of doing an act which appears prohibited.  The Rashba (Teshuvot 3:257), and later the Rema (YD 87:4) rule that le-khat'chila one should not cook a beheima temei'a in milk because of mar'it ayin.  The Shakh and Taz both challenge this ruling.

As for cooking milk with the meat of a "neveila," the Amoraim, as well as the Rishonim, debate whether one may cook, or derive benefit from, a mixture of milk and meat from a kosher species which wasn't slaughtered correctly.  In other words, has one who eats a McDonald's cheeseburger violated one, or two, issurim? 

Shmuel (Chullin 113b) maintains that the prohibition of basar be-chalav does apply to a neveila.  The Gemara is unsure whether Shmuel believes that "issur chal al issur" – i.e., despite the fact that the meat is already prohibited since it is a neveila, one can still violate, and receive another set of malkot, for the issur of basar be-chalav.  

Alternatively, the Gemara suggests that he accepts the principle of "ein issur chal al issur," – that there is, generally speaking, no piling up of prohibitions - but the Torah, in our instance, repeats the word "gedi" (kid) three times in order to include neveila meat, enabling one to violate both prohibitions. 

The Rishonim discuss this issue as well.  While they seem to agree that one may not cook neveila and milk, they debate whether one may BENEFIT from a mixture of neveila and milk.

Their discussion revolves around the following question.  The principle of "ein issur chal al issur" has a number of exceptions.  For example, if one issur is broader than the first, then it is considered a qualitatively different issur and may continue to be in force even in the presence of the first issur.  This principle is referred to as an "issur mosif."

It would seem that the prohibition of basar be-chalav is broader than the prohibition of neveila, as it includes an issur hana'a as well.  If so, it would seem that despite the principle of "ein issur chal al issur," one may still be culpable for eating, and benefiting, from a mixture of neveila and milk.  This is indeed the position of the Rashba.

The Rambam, in a famous piece, disagrees.  He explains (Perush Ha-Mishnayot Keritut 3:4) that although QUANTITATIVELY the issur of basar be-chalav is a broader prohibition than neveila, QUALITATIVELY speaking, they are no different.  The Rambam presents a "nekuda nifla'a" (amazing point), which suggests that all issurei akhila actually include, by definition, an issur hana'a.  In other words, an issur akhila is to be viewed as an issur of consumption.  At times, as Rav Abahu (cited above) noted, the Torah may restrict the types of consumption prohibited, but the nature of the issur is the same.

If so, while the issur of basar be-chalav may seem QUANTITATIVELY broader that the previous issur of neveila, it is actually QUALITATIVELY similar, and therefore the principle of "ein issur chal al issur" is applicable.  In other words, one may, according to the Rambam, benefit from a mixture of neveila and milk.

This question is of great importance for pet owners.  Should one refrain from buying dog food which contains milk and meat (which were presumably cooked together)? There is no clear resolution to the debate between the Rambam and the Rashba.  Seemingly, there is reason to be stringent, as the machloket involves a safek de-oraita.  (See Rabbi Howard Jachter's article on pets and halakha in the Journal of Halakha and Contemporary Society, vol. 24.)

Chicken and Milk:

The Gemara (Chullin 116b) cites a debate among the Tana'im if chicken and milk is included in the prohibition.  Rabbi Yossi Ha-Galili apparently permitted the consumption of chicken-and-milk mixtures.  Rabbi Yonatan, on the other hand, included chicken and milk in the Biblical prohibition of basar be-chalav.

The halakha, however, is in accordance with Rabbi Akiva, who prohibits chicken and milk only mi-derabanan.  The Rema rules that one may even derive benefit from a mixture of chicken and milk.  While the Maharshal was stringent regarding bishul and hana'a, the Acharonim (see Shakh and Taz) are lenient.

Bishul Basar Be-Chalav – Definition and Nature:

Before we conclude, I would like to address one final point.

What is the nature of the prohibition of bishul basar be-chalav? Is one simply prohibited to cook meat and milk together, or, is one prohibited to create a mixture of meat and milk? While there are many ramifications of this question, let us mention at least one.  

The Acharonim debate whether one may reheat a mixture of basar be-chalav.  In other words, does the principle of "ein bishul achar bishul," borrowed from the laws of Shabbat, apply here? Rabbeinu Gershon (Chullin 105a) and Rabbi Akiva Eiger (YD 87:1) suggest that once the mixture is created, one may reheat it.  The Pri Megadim, in a number of places, disagrees.

Apparently, they disagree whether the issur of bishul basar be-chalav is to merely perform an act of "cooking" with meat and milk, or to actually create a mixture of basar be-chalav.

Can we connect this debate to our previous question regarding the relationship between the issur of bishul and akhila? Is the cooking of meat and meat independently prohibited, or is it viewed only as the preparation that preceded the consumption of this mixture? What if the mixture was already created? Food for thought!

Next week, we will discuss the various precautions enacted in order to prevent one from violating the prohibition of basar be-chalav.