As mentioned in the shiur, there is a disagreement among the Acharonim as to whether the decree of chalav akum (milk that was milked by a non-Jew) was formally decreed by a Sanhedrin – and is therefore binding for future generations – or not. The main practical difference between these two opinions is the status of milk that is technically chalav akum (where there was no Jew present during the process of the milking), but where there was no chance (or a very slight chance) that non-kosher milk is mixed in. According to the opinion that this is a formal decree, the milk is prohibited, while according to the second opinion the milk is permitted.
In this essay, we will summarize this disagreement and examine some other disagreements between the Rishonim which might also hinge upon the same question.
The Decree of Chalav Akum
Chazal prohibited any milk that was milked by a non-Jew if there was no Jew present at the time of the milking due to the fear that the non-Jew might have mixed in a little non-kosher milk as well. However, if a Jew was present in a manner that caused the non-Jew to be concerned that he would be caught if he did anything wrong, the milk is permitted, even if the Jew did not see the actual milking.
In a case where there is no physical possibility of mixing in non-kosher milk, the Mordechai writes that there are those who permit the milk, while he himself disagrees. He proves this from the Gemara where it seems that in any case, the presence of a Jew is required.
The Acharonim disagree about how to interpret the position of the Mordechai. The Radbaz understands that the Mordechai requires the presence of a Jew even when there is no non-kosher animals used for milking available, but he disagrees with this conclusion and proves that the decree was not applied where there is no fear of non-kosher milk. The Pri Chadash agrees with the conclusion of the Radbaz and adds that in his view, this is actually the opinion of the Mordechai as well (and the Mordechai’s stringent conclusion is based on other considerations). He concludes that he drank such milk when he was in Amsterdam.
On the other hand, the Chatam Sofer brings many proofs that the decree of chalav akum was instituted in the same manner as gevinat akum, the cheese of a non-Jew – as a full decree, and therefore even when there is no chance that any non-kosher items are mixed in, it is still forbidden.
He adds that even if we would hold like the Radbaz (that this was not decreed formally in all cases), drinking such milk would still be prohibited, since our forefathers accepted upon themselves not to drink such milk, and this acceptance therefore also binds us through the power of custom.
The Aruch HaShulchan also holds like the Chatam Sofer. He writes strongly against the opinion of the Pri Chadash and even brings a story of an incident that illustrates how important it is to stay away from any milk that was milked by a non-Jew.
To summarize, on one side the Radbaz and the Pri Chadash hold that the decree only applies wherever there is a chance that non-kosher milk was mixed, while on the other side the Chatam Sofer and the Aruch Ha’shulchan hold that the decree applies in any case, and that milk that was milked by a non-Jew is always prohibited.
We will now examine a few more cases where the halacha may also depend upon the same question.
Chalav Akum that is Absorbed in a Pot
The Rishonim disagree about whether one is allowed to use utensils that absorbed milk that was milked by a non-Jew. The Rashba rules that this is prohibited, since the taste of the milk absorbed in the utensil may be transferred from the pot to the food. The Orchot Chayim and the Issur V’heter Ha’aroch hold this way as well. On the other hand, there are those who say that it is permitted, since the decree was on the milk itself and not on milk that is absorbed in a pot.
At first glance, we might suggest that the core of this disagreement is the same as that of our original one. This is because it is logical that those who hold that chalav akum was forbidden by a formal decree would also hold that the decree extends to the absorptions as well, while those that hold that it was not might argue that there is no reason to forbid the absorptions when the concern is only based on a chance that perhaps non-kosher milk was added to the kosher milk.
However, this suggestion is not necessarily correct. The Darkei Moshe claims that the reasoning of those that are stringent is not because the decree includes all forms of milk, but rather because there might be non-kosher milk mixed in – a Torah prohibition. Therefore we cannot say for sure that those who prohibit the absorbed milk certainly hold like the Chatam Sofer and Aruch Ha’shulchan. But we can say with certainty that those who permit the absorptions disagree with them that chalav akum was prohibited in any case.
Milk that was Milked for a Non-Jew
Another possibly related case is discussed by the Sefer Mitzvot Katan, known as the Semak. He rules that milk that was milked by a non-Jew, even if he milked it for himself, it is still forbidden.
The Perisha explains the logic that the Semak was rejecting. We might have thought that since the non-Jew is milking for himself, he would not mix in non-kosher milk, since non-kosher milk is not as good quality as kosher milk and was commonly used only as a filler for those who were selling their milk to other people. However, the Semak rules that despite this, it is still prohibited.
There are two ways to explain the opinion of the Semak:
- The logic to permit is based on the assumption that non-kosher milk is of lower quality than kosher milk. However, the Semak holds that perhaps the non-kosher milk is of the same quality, and therefore the concern that the non-Jew mixed some in still exists.
- The logic is correct that non-kosher milk is of lesser quality than kosher milk, however, the decree of chalav akum was decreed formally, and therefore includes even cases where there is no chance of non-kosher milk being mixed in.
Based on this, we can suggest that the Radbaz and Pri Chadash might hold like option A, while the Chatam Sofer and the Aruch HaShulchan would hold like option B.
It would seem that the Rishonim may also be divided about this question of whether non-kosher milk is of lesser quality than kosher milk as well, as we shall demonstrate.
As we mentioned above, it is enough for a Jew to have the ability to see the milking for it not to be considered chalav akum, since this will ensure that the non-Jew does not mix in non-kosher milk out of fear of being caught. The Tur, after recording this halacha, says that it must be that the non-Jew knows that non-kosher milk is forbidden for Jews, since if he does not know, this would not act as a deterrent.
However, it is possible that even if the non-Jew does not know that non-kosher milk is forbidden for Jews, he is still unwilling to be caught mixing in non-kosher milk if we argue that the non-kosher milk is of lower quality than the kosher milk and he would be considered a thief. In fact, the Gemara and many Rishonim did not mention a requirement of knowledge of the non-Jew about the prohibition of non-kosher milk for Jews, and perhaps they believed that the poor quality of the non-kosher milk is enough to rely on.
Regardless, the Tur obviously felt that this was not enough. It makes sense to say that the Tur held like option A that non-kosher milk is in fact just as good as the kosher milk. Therefore, he understood that the fear that the Gemara was referring to was due to the prohibition of non-kosher milk, and accordingly he ruled that the non-Jew must have knowledge of this. The Aruch HaShulchan in fact claims that this is the opinion of the Tur.
According to this, we can say that the Tur was of the same opinion as the Radbaz and Pri Chadash that the decree of chalav akum does not apply in cases where there is no fear of non-kosher milk. Therefore, he was obligated to explain that when a non-Jew milked for himself the only reason that it is prohibited is because there is actual fear of non-kosher milk being mixed in.
On the other hand, the other Rishonim who did not mention this very likely held like option B, that the decree applies even when there is no fear of non-kosher milk being mixed in, and therefore even when the non-Jew milked for himself it is still prohibited. It seems that this is the opinion of the Perisha himself, because when he explains the logic to permit the milk when a non-Jew milked for himself, he concludes: “And even though [non-kosher milk is of lesser quality than kosher milk] it is prohibited.”
Can Chalav Akum Become Kosher
The last case that we will examine is the possibility to take chalav akum and make it kosher.
The Rambam holds that even though butter made by non-Jews should not be eaten, if the butter was cooked, then any non-kosher milk that was present likely evaporated, and the butter is therefore permitted. Would the Rambam permit turning chalav akum into cheese or butter and then cooking it in order to get rid of any non-kosher milk that might be in it?
The Magid Mishneh holds that the Rambam would indeed permit such a practice. He brings proof for this from the Tosefta that says: “One should take cheese only from an expert [where we assume that everything is kosher, since he does not want to jeopardize his livelihood], but if it is cooked, one may take from anywhere [anyone]”. We see that once the cheese/butter is cooked, it is permitted, and even more so if a Jew took chalav akum and performed the entire process himself.
However, the Kesef Mishneh rejects the opinion and proof of the Magid Mishneh. He claims that the Tosefta is referring to Jewish cheese makers, and therefore it is permitted once it is cooked. But chalav akum itself is similar to gevinat akum, that once it is forbidden, there is no way to make it kosher, even if one can validate that there is no non-kosher milk in the mixture.
The Mordechai seems to be of the same opinion as the Kesef Mishneh. He writes that even though there are those who permitted cheese/butter that was made by a non-Jew, that is only if the milking was done with intent for cheese/butter. The logic is that the non-Jew would not be likely to mix in non-kosher milk when he knows that it will not congeal. However, if the milk was milked for drinking, and they then changed their mind and decided to make cheese or butter from it, it is too late. The milk was already prohibited due to the decree of chalav akum, and there is no way to change it.
It would seem that here as well, the Maggid Mishneh is of the same school of thought as the Radbaz and the Pri Chadash. Therefore, if one can achieve a level of certainty that there is no non-kosher milk mixed in, then the decree of chalav akum does not apply. On the other hand, the Mordechai and the Kesef Mishneh may hold like the Chatam Sofer and the Aruch HaShulchan that the decree applies in any case even when there is no fear of non-kosher milk.
We have seen the disagreement among the Acharonim as to whether the prohibition of chalav akum was formally decreed, and therefore applies even when there is no chance of non-kosher milk being mixed in, or not. We also suggested that this might be the basis for a few disagreements among the Rishonim (though not with certainty) with regard to the issues of chalav akum that is absorbed in a pot, milk that was milked for a non-Jew, and making cheese or butter from chalav akum.
 Avoda Zara 35b
 Avoda Zara 39b
 Avoda Zara 2:826
 Responsa 4:75
 Y.D. 115:6
 Responsa, Y.D. 107
 See Rambam, Ma’achalot Assurot 3:14.
 He remarks that if it is actually prohibited then it is not as severe, since it is a rabbinic decree, but if it is refrained from due to the acceptance of our forefathers (that has been continued through future generations), then it is considered like a vow and one must comply with the practice on a Torah level.
 Y.D. 115:4-6
 Responsa 1:143
 Hilchot Issurei Ma’achalot
 Footnotes on the Issur V’heter Ha’aroch, ibid., and the Orchot Chayim, ibid., mentions this opinion as well.
 Y.D. 115:4*, based on the Issur V’heter Ha’aroch, ibid.
 Y.D. 115; this is also the opinion of the Magid Mishneh, Ma’achalot Assurot 3:17.
 Avoda Zara 39b
 Such as the Rif, Rambam, and Rosh, among others.
 Y.D. 115:2
 The Magid Mishneh would also be in this category; see the continuation of the essay where we cite other sources that illustrates that the Magid Mishneh actually held this way.
 However, the Beit Yosef (Y.D. 115) accepts the ruling of the Tur and says that it is “simple logic,” and we will see shortly that he holds that chalav akum is prohibited in any case. If so, one cannot say with certainty that the Tur holds this way, but it is definitely the simple explanation.
 Ma’achalot Assurot 3:15-16
 Avoda Zara 4:13
 Ibid. It would seem that the Radbaz’s understanding in the Mordechai was more accurate than that of the Pri Chadash, but this needs further study.
 Avoda Zara 35b.