– Author: Rav Bentzion Shor
In this article we will examine three seemingly separate machlokot among the Rishonim about bishul akum, propose an explanation that links all three of them together, and thereby attempt to define the nature of the decree of bishul akum.
Machloket I: The Status of Dishes that Absorbed Bishul Akum
As we have learned, there is a disagreement regarding the status of pots and dishes that absorbed emissions from food that is forbidden due to bishul akum. The Rashba is stringent while the Ra’ah is lenient.[1]
The Rashba[2] is of the opinion that bishul akum is no different than other rabbinic prohibitions, and since with other rabbinic prohibitions, the ta’am (flavor) absorbed within a utensil is also forbidden, that would be the case here as well. Therefore, one would need to kasher utensils used for bishul akum. This is how the Shulchan Aruch[3] rules as well.
On the other, hand the Ra’ah[4] holds that one does not need to kasher the utensils used for bishul akum. His logic is that since the whole decree of bishul akum is only to prevent intermarriage,[5] wherever there is no concern for intermarriage, there should be no decree and no prohibition. Since there is no concern of intermarriage when it comes to the absorptions caused by bishul akum (as it usually means that the non-Jew cooked for himself, and we want to cook with the same pot after him), there was no decree imposed upon the absorptions and therefore no problem to use the utensils even without kashering them.
However, the Rashba[6] does not accept this logic. He claims that if the decree was only valid in situations where there is an actual chance of intermarriage, why would we be forbidden from eating foods subject to bishul akum in our homes, since there is no fear of intermarriage there! And yet we see in the Gemara[7] that those who ate bread baked by a non-Jew in the field, far away from the slightest chance of intermarriage, were punished by not being quoted in the Beit Midrash. On this basis, the Rashba concludes that there is no difference between the food itself and what is absorbed from the food in a utensil.
So far, it seems that this is a local disagreement that relates only to the status of the absorptions caused by bishul akum.
Machloket II: Bishul Akum for the Sick
The next disagreement that we will examine relates to a non-Jew cooking for a sick person. Here too, the Ra’ah is lenient and the Rashba is stringent.
The Ra’ah[8] says that one who is not dangerously ill is generally only allowed to benefit from foods forbidden due to a rabbinic decree but not eat them. However, he notes that a sick person is permitted to eat from a non-Jew’s cooking on Shabbat (when a Jew cannot cook for him). By allowing the person to eat bishul akum, we seem to be contradicting this principle!
The Ra’ah therefore explains that bishul akum and the like (such as bread and wine of non-Jews) are different than the rest of the rabbinic decrees. Since the decrees were issued in these cases to prevent intermarriage, they are restricted to cases where intermarriage is an actual possibility, which explains the reason for various exceptions to the law. For instance, bread made by a baker (pat palter) is permitted in certain circumstances, while wine is almost always prohibited. The difference is that wine leads to drunkenness and a lack of inhibition, and is therefore more liable to lead to intermarriage than bread.
According to this, the Ra’ah explains that when a non-Jew cooks for a sick Jew there is no fear of intermarriage, and in such a case bishul akum is not forbidden. The Ra’ah further rules that based on this explanation, the food would be permitted even for one who is healthy once Shabbat is over, since it was never considered to be bishul akum in the first place.
However, the Rashba[9] rejects the explanation of the Ra’ah on two different grounds. First, the Rashba claims that when a non-Jew cooks for a sick person on Shabbat – a time which no Jew can cook for him – there is more of a concern of intermarriage, as the non-Jew is performing a great favor for him, which could create greater closeness between them.[10] Secondly, even if the intention of the Ra’ah was that the necessity that the person eat allows for an abrogation of the law, that should only apply for those for whom a real need exists – namely, for the sick person and only during Shabbat. However, once Shabbat is over and Jewish cooking is available, there would be no dispensation for the sick person to continue to eat the food that is bishul akum, and it would definitely be prohibited for one who is healthy.
Once again, we have a disagreement between the Rashba and the Ra’ah. The Ra’ah holds that there is no decree of bishul akum when there is no fear of intermarriage, and the Rashba disagrees.
Machloket III: Bread from a Non-Jewish Baker
The last disagreement relates to the bread of a non-Jew (pat akum). Even though pat akum is generally prohibited, in certain circumstances it is permitted to buy bread that was made by a commercial baker.[11] What is the halacha though if one buys a loaf of bread that was baked in a bakery from a non-Jew who is not a professional baker or vice-versa?
The Rashba[12] deliberates about this question and concludes that the halacha is determined by the baker of the bread. If a professional baker baked the bread, it is permitted to buy it even from a regular non-Jew second hand. However, if a regular non-Jew baked the bread, it is forbidden to buy it even when sold in a bakery. As proof for his ruling, the Rashba cites the statement of the Gemara in Avoda Zara[13] that it is permitted to sell bread that contains forbidden wine to a non-Jew on condition that no Jew sees the sale. The reason that a Jew may not view the sale is to ensure that no Jew accidentally buys this bread from the non-Jew (since he believes it is kosher since the Jew sold it). We see from here that even though no Jew would normally buy bread from a non-Jew, since the baker in this instance was a Jew, it is possible that one might make a mistake. Evidently, then, we define the status of the bread according to the baker, and not according to the seller.
The Ra’ah[14] though rejects the proof of the Rashba. He explains that there is a difference between bread baked by a Jew (which is the case of the Gemara in Avoda Zara), which is entirely permitted, and bread baked by a non-Jewish baker, which is principally forbidden and permitted only in circumstances of great need. The dispensation to buy bread from a non-Jewish baker (when it is permitted) is only due to the fact that since the setting is commercial, there is less chance that it will result in intermarriage. Therefore the Ra’ah holds that the halacha depends on the time of the buying – if it is being done commercially or not – and not on the time of the baking. Consequently, the Ra’ah rules that buying from a baker is permitted no matter who baked the bread, and that buying from a regular non-Jew is always prohibited even where the bread was professionally baked.
For the third time, we find that the Ra’ah rules that the decree of bishul akum (or pat akum) is determined based on the risk of intermarriage, while the Rashba seems to care less about a particular chance of intermarriage in each specific case. What is the basis for their disagreement, and how does the Rashba appear to ignore the reasoning of the decree?
Cheftza and Gavra (objective or subjective)
Perhaps we can suggest a solution based on the Gemara in Nedarim.[15] The Gemara there differentiates between a neder (vow), which applies to the object (the object is forbidden to the person – issur cheftza, an objective issur), and a shevua (oath), which applies to the person (the person is obligated to do or not do something – issur gavra, a subjective issur). There are practical ramifications which result from this difference in terms of whether they are valid, such as vows/oaths that are made regarding a mitzvah (commandment) or making a vow/oath using the opposite terminology.[16]
Perhaps this is the fundamental basis for the disagreement between the Rashba and the Ra’ah: Is bishul akum an objective or subjective issur?
The Ra’ah holds that the decree of bishul akum is similar to an oath – it is a subjective issur. Chazal wanted to prevent us from intermarrying, so they enacted a decree that a person is not allowed to eat or buy food that might lead to friendship with a non-Jew. The decree was imposed upon the actions of the person and not upon the food itself. Therefore, the absorptions of the food are not prohibited, when it is made for the sick it is permitted even for the healthy, and we define the status of the food according to the seller (since that is where the risk lies in terms of intermarriage) and not the baker.
On the other hand, the Rashba holds that the decree of bishul akum is similar to a vow – it is an objective issur. Since the food itself is forbidden, we must treat the absorption in a utensil likewise, after Shabbat it is prohibited to all, and we follow the person who made the food rather than the one selling it.
The Nature of the Torah’s Commandments
Support for this explanation can be found in the words of the Rashba. The Rashba[17] — as part of his argument with the Ra’ah – repeats again and again that even though the decree of bishul akum is a rabbinic decree, it was decreed like a Torah level commandment. What does he mean by this?
The simple understanding is that just like a Torah prohibition applies to ta’am absorbed within a utensil from a forbidden food, this is the case within bishul akum as well. In the same vein, just as a Torah prohibition that has been set aside to save a life is only set aside as long as the life is threatened, likewise bishul akum is permitted only as long as there is no other solution.
However, there might be a deeper meaning to these words in light of a related dispute between the Rashba and the Ritva concerning whether the notion of subjective or objective issurim extends to the commandments of the Torah as well. The Ritva[18] holds that all of the Torah’s commandments are subjective – the person is commanded to do this and not to do that, but the objects themselves are not the issue: “For this [item] is no more issur in the body of nevela (an animal corpse) then in something that is permitted.”
However, the Rashba[19] is of the opinion that the commandments of the Torah are objective issurim – the foods or items themselves forbidden by the Torah are prohibited,[20] and therefore the person is forbidden to eat or use them.
In light of this position of the Rashba, the words of the Rashba concerning bishul akum take on a new meaning. The decree of bishul akum was decreed like a Torah commandment, meaning that the same way that a Torah commandment applies to the object – objectively – so too the decree of bishul akum applies to the food itself and not only to the actions of the person. This is the root of the Rashba’s disagreement with the Ra’ah, and this is his understanding of the nature of the decree of bishul akum.
[1] Even though the Tur (Y.D. 113) writes that the opinion of the Rosh is against the Rashba, and Rabbeinu Yerucham writes this as well (Toldot Adam V’chava 17:7), the Bedek HaBayit on the Beit Yosef (Y.D. 113) writes that he could not confirm this from any of the writings of the Rosh that he saw.
[2] Torat HaBayit Ha’aroch 3:7
[3] Shulchan Aruch, Y.D. 113:16
[4] Bedek HaBayit on Torat HaBayit, 3:7
[5] Rambam, Hilchot Ma’achalot Assurot 17:9; see similarly Shulchan Aruch, Y.D. 112:1.
[6] Rashba, loc cit.
[7] Avoda Zara 35b
[8] Ibid.
[9] Mishmeret HaBayit on Torat HaBayit 3:7
[10] However, it is possible that the Ra’ah did not mean that it is not considered a favor specifically on Shabbat, but rather that any time a non-Jew cooks for one who is ill, it is unlikely that it would result in intermarriage, but rather only on Shabbat would such a scenario of a non-Jew cooking for a Jew arise, because during the week we would prefer that a Jew cook for him.
[11] Rambam, Ma’achalot Assurot 17:12; Shulchan Aruch, Y.D. 112:2
[12] Torat HaBayit Ha’aroch 3:7
[13] 65b
[14] Ibid.
[15] 2b
[16] See Ran, Nedarim 2b.
[17] Torat Ha’bayit Ha’aroch, ibid., Mishmeret HaBayit, ibid.
[18] Nedarim, beginning of the second chapter, s.v. “לחולין”
[19] Responsa of the Rashba 1:615
[20] This is how he explains why a vow not to eat a neveila (animal not properly slaughtered) does not apply: It is because the prohibition of eating a neveila is already an issur cheftza, and therefore a vow, which is also an issur cheftza cannot be imposed on it (one issur cannot be imposed on a pre-existing issur).
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