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

Shiur #32: Food Produced by Non-Jews:
Bishul Akum (1)

By Rav David Brofsky

Introduction:

In previous shiurim, we discussed the halakhot of pat akum and chalav akum, two categories of food produced by non-Jews that Chazal forbade for consumption. We saw two reasons for these prohibitions. On the one hand, the gemara explains that Chazal prohibited milk produced without supervision out of concern that it had been adulterated by non-kosher milk. On the other hand, the gemara attributes the prohibition of pat akum to "chatnut," the fear of excessive socializing and even intermarriage with non-Jews.

We noted that these different reasons might explain the discrepancies between the two issurim. For example, while chalav akum prohibits the utensil in which it is cooked (noten ta'am), pat akum does not. Clearly, the rabbis viewed chalav akum as an inherently prohibited substance (issur cheftza), since the issur itself is based upon the concern of a prohibited mixture. Pat akum, however, which Chazal prohibited for social reasons, is NOT seen as an inherently prohibited substance (but rather as an issur gavra) and therefore cannot prohibit a utensil.

This week we will explore the laws of bishul akum, while attempting to determine the reason and nature of the prohibition.

Source and Reason for Bishul Akum   

The gemara (Avoda Zara 37B – 40A), after attempting to attribute the prohibition of bishul akum to a biblical source, concludes that bishul akum is prohibited "mi-derabbanan ve-kra esmachta be-alma" (the prohibition was legislated by the rabbis, but they made a textual connection in the Torah to support their enactment in the Torah).

Why did Chazal prohibit food cooked by non-Jews? 

Rashi (38a s.v. mi-derabbanan) explains that a "Jew should not be accustomed to eat and drink with a non-Jew (etzlo) as he may come to feed him impure (non-kosher) food." According to Rashi, the prohibition of bishul akum in intended to prevent the consumption of non-kosher food.

Tosafot (38a s.v. ela) cite Rashi's explanation and disagree, explaining that the prohibition results from the fear of "chatnut" - socialization and intermarriage. 

If so, then we may already point to a debate regarding the reason for bishul akum, whether it stems from kashrut concerns or the fear of intermarriage. 

Based on the rationale we employed in previous shiurim, it should follow that this debate between Rashi and Tosefot will have practical ramifications regarding the status of utensils used by a non-Jew to prepare food.  According to Tosafot, the issur of bishul akum should be viewed as an "issur cheftza" and will thus extend to the utensils, as well.  Rashi, by contrast, should permit the utensils, since in his view the prohibition is merely intended to prevent excessive socialization with non-Jews, and may thus be viewed as an "issur gavra."
 
Though we have no concrete evidence as to the opinions of Rashi and Tosafot on this matter, we can point to other rishonim who indeed appear to debate this issue. 

The Tur (Y.D. 113), for example, cites the Rashba who maintains that bishul akum may prohibit utensils, as "everything the Rabbis enacted is similar to their Biblical counterpart" ("kol de-takun rabbanan ke-ein de-oraita takun"). He therefore warns that one's non-Jewish servants should not cook for themselves in the Jew's home as this may prohibit continued use of the kelim. 

The Tur then proceeds to cite his father, the Rosh, as ruling leniently in this regard, claiming that Chazal were certainly not SO stringent with respect to bishul akum. The Ra'a, who agrees with this ruling, explains that since this prohibition is based upon the concern of "chatnut," there is no reason to prohibit the utensils. 

The Shulchan Arukh (Y.D. 113:16) cites both opinions, and adds that even the more stringent view allows one to "kasher" earthenware ('cheres') used for bishul akum by immersing it in hot water (hag'ala) three times.

While the acharonim (see Arukh Ha-Shulchan Y.D. 113:50) seem to adopt the more stringent approach, we shall see that bishul akum may very well apply to only specific foods and to specific people.

Interestingly, elsewhere (Avoda Zara 35b s.v. ve-hashelakot) Rashi himself explains that bishul akum is prohibited because of "chatnut," implying that he accepts BOTH reasons. 

Furthermore, the Rambam (see Peirush Ha-Mishnayot 2:6) explains that "these things, such as their [non-Jews'] bread and cooked foods and the like, were only prohibited in order that we should distance ourselves from them and not come in our mingling with them to be lax (hefkerut) regarding prohibited things. This is what they meant by ‘chatnut'." 

In other words, the Rambam ALSO implies that the issur stems from a broader concern, and that the term "chatnut" refers to numerous prohibitions, and not just intermarriage.

"Who made the Food?" - Slaves and Servants

Seemingly, we might suggest that if the prohibition of bishul akum is linked to "chatnut," then under certain circumstances, bishul akum may not be applicable.   

For example, some rishonim cite an opinion that permits food cooked by non-Jewish slaves (avadim u-shefachot). However, they disagree as to the reason underlying this leniency. The Ramban (see Teshuvot Ha-Meyuchasot Le-Ramban 284), in response to Rabbenu Yona, justifies the practice of allowing non-Jewish slaves to cook for Jews, as "there is no issur for these slaves, which are our property, as work performed by a non-Jewish slave is considered a Jew's… One is warned not to allow them to work on Shabbat, and they ARE NOT CONSIDERED NON-JEWS ('leitei bi-khlal nokhrim'); therefore, the prohibitions do not apply to them…"

In other words, since a non-Jewish slave is actually not legally considered non-Jewish, given that he is obligated in certain mitzvot, the prohibition of bishul akum does not apply to food cooked by them. According to the Ramban, then, this leniency evolves from the personal status of avadim; the context, however, plays no role in this leniency. 

The Rashba (see Teshuvot Ha-Meyuchasot Le-Ramban 149), by contrast, cites an opinion which maintains that a non-Jewish slave's (avadim u-shefachot) food is not prohibited since the prohibition of bishul akum applies only when the gentile willingly cooks for a Jew, out of his or her affection for him. A slave, however, cooks whether or not he or she wants to, and therefore the reason of "chatnut" does not apply. The Rashba concludes that one should not rely on this leniency. 

This reasoning, also cited by the Ra'a (Bedek Ha-Bayit Bayit 3 pg. 94b) in the name of Rav Yitzhak Ben Rav Manoach, and by the Levush (Y.D. 113), attributes the leniency to the absence of the concern of "chatnut" in this situation.  In other words, the context of the cooking will determine whether or not the prohibition should apply.

Interestingly, a practical difference between these two explanations arises in the case of "hired help" (shefachot sekhurot). Does the leniency regarding slaves apply as well to hired servants? 

The Shulchan Arukh writes that "there are some who permit OUR servants, and others prohibit even be-diavad." The commentators on the Shulchan Arukh question what the term "OUR servants" means, and ask whether it refers to slaves or to hired servants. Both the Shakh (Y.D. 113:7) and Taz (Y.D. 113:3) explain that the Shulchan Arukh refers to a paid helper working in a Jew's house, rather than an actual slave.

In any case, we clearly see that according to some views, the specific context within which the food is cooked may dictate its status. We will return to the Shulchan Arukh's ruling shortly.
 
A Non-Jew Cooking in a Jew's Home

Recall that some authorities suggest that when the gentile cooks for himself, rather than out of affection for the Jewish recipient, the prohibition of bishul akum does not apply. Some rishonim go even further, suggesting that bishul akum should NEVER apply when the food is cooked in the home of a Jew. 

Tosafot (Avoda Zara 38a s.v. ela) cite the opinion of Rav Avraham ben HaRav David (Ra'avad) who maintains that bishul akum is prohibited only when the non-Jew cooks the food in his or her house. If, however, the food is prepared in the house of a Jew, it is permitted. 

Rabbenu Tam disagrees, insisting that we do not distinguish between the house of a Jew and of a non-Jew, and that we must always be concerned "that he will not be careful," even in the house of a Jew. It is not clear whether Rabbenu Tam felt that we must be concerned that he may adulterate the food, or that we STILL fear inappropriate socializing – even in the Jew's home. 

As mentioned, the Shulchan Arukh (Y.D. 113:4) cites two opinions regarding "OUR servants." The Rema writes that "be-diavad one may rely upon those who are lenient." The acharonim explain that this post-facto leniency is based either upon the Ramban (see Shakh) or the Ra'avad (see Taz). Therefore, while le-chatchila one must not allow a non-Jewish employee to cook in his house, be-diavad the food may be permitted. 

The question of non-Jewish help is complex and relates to a number of issues, including the type of foods prohibited by bishul akum, as well as to the minimal Jewish involvement in the cooking process which may permit the food. We will return to this point numerous times throughout our series on bishul akum.

Commercially Produced Food

Last week we noted that the Ra'a (Bedek HaBayit Bayit 3 pg. 94b) questions whether food cooked by a non-Jew for his livelihood in a factory or other commercial cite not used for dining, rather than for a specific person, may be permitted. Since in this case we need not be concerned about "ikruvei da'atei" - warm feelings of camaraderie between the cook and the customer, perhaps the prohibition should not apply. He concludes that one may be MORE inclined to rule leniently when it comes to commercially baked bread, as we are generally more lenient regarding pat akum.

This opinion was never cited by the Shulchan Arukh, or by other major halachic works. However, Rav Moshe Feinstein zt"l (see the teshuva authored by Rav Neta Greenblatt with Rav Feinstein zt"l's approval, printed in Mesora vol.1 pg. 94) cites a debate from the previous generation as to whether bishul akum poses a problem for commercially produced sardines. He concludes that even if one employs a "lo pelug" and prohibits bishul akum even when there is no concern of "ikruvei da'atei," when the cooking is done is an irregular manner, such as by a machine, then there is certainly no concern for "chatnut" and the prohibition of bishul akum would not apply.  

Incidentally, the policy of the Orthodox Union (according to Rav Menachem Genack, cited in the aforementioned journal) is to rely upon this leniency only regarding bread (pat palter), and not for cooked foods. 

Summary

This week we discussed the reasons for, and nature of, the prohibition of bishul akum. We also questioned whether the context in which the food was cooked, or the general role of the person who cooked the food, should impact upon the issur. We concluded that while le-chatekhila, the prohibition applies in all circumstances, be-diavad, the food may be permitted if it was cooked by a non-Jewish worker in the home of a Jew. 

Next shiur, we will determine which foods may be prohibited by bishul akum, and whether a Jew's participation in the cooking process can permit the food even if a gentile completes the process.