– Author: Rav Avichai Goodman
Te’imat Goy
The Gemara in Masechet Chullin[1] relates that fish were cooked in the kitchen of Ma’on and there was a non-kosher fish in the pot as well. They came to Rav Yochanan and asked him what to do. His reply was “לטעמיה קפילא ארמאה,” “Let an Aramean kefeila taste it,” i.e., a gentile kefeila should taste the food, and if he claims that the non-kosher fish has imparted some taste to the kosher fish, the entire contents of the utensil are forbidden. If not, then the kosher fish are permitted to be eaten. Rabbeinu Gershom explains that the word kefeila refers to a gentile baker.
Rava, after hearing this story, was happy that a mystery had been solved, for a baraita rules that it is forbidden to cook milk in a meat utensil that has been used within the last twenty-four hours. If it was, one must be concerned that the milk may have transferred flavor into the utensil. Similarly, a utensil used for teruma may not be used for chullin, and if it was, one must be concerned that the teruma imparted flavor to the utensil and someone must taste it to ascertain if there is a problem. Rava had difficulty with these laws stated by the baraita, for one could understand the second law regarding finding someone to taste the possible flavor concerning the teruma, as the Kohen is permitted to eat both teruma and chullin (so let the Kohen himself taste and check). But in the first case in the baraita, who can taste the food to check if the milk imparted flavor? After all, isn’t it possible that the entire dish is forbidden to be eaten? Now, after the story with Rav Yochanan, Rava understood the principle, and set down one of the most basic rules in hilchot ta’arovot:
“אמור רבנן: בטעמא, ואמור רבנן: בקפילא ואמור רבנן: בששים; הלכך: מין בשאינו מינו דהיתרא – בטעמא, דאיסורא – בקפילא, ומין במינו דליכא למיקם אטעמא, אי נמי מין בשאינו מינו דאיסורא דליכא קפילא – בששים”.
The Rabbis said: “Sometimes with taste,” and the Rabbis said: “Sometimes with a [gentile] kefeila,” and the Rabbis said: “Sometimes with nullification of sixty.” Therefore, if it is one food type mixed with a different food type, if the mixture is permissible, let someone taste it. If the mixture has forbidden food in it, let a gentile kefeila taste it and discern whether the taste has been transferred to the kosher food as well. Where the food types are the same and discerning the taste is impossible, or where there is a forbidden food in the mixture and there is no kefeila, then rely on the nullification of sixty.
In other words – there are three different types of food mixtures of forbidden foods with permitted foods:
- Permitted foods that mixed b’heter and have different flavors – give to a Jew to taste and check if it imparted flavor.
- Forbidden food that mixed with permitted food and have different flavors – give to a gentile to taste to ascertain if the forbidden food imparted flavor to the permitted food.
- Forbidden food that mixed with permitted food but has the same flavors, or a different case where there is no gentile around – assume it is nullified if there is sixty times the permitted substance.
The Shulchan Aruch states Rava’s rule twice; once in the laws of meat and milk[2] and a second time in hilchot ta’arovot (mixtures).[3] The Rishonim discuss two main questions regarding the abovementioned ruling; first, in what cases do we have the gentile taste the mixture? Can we rely on the gentile in all cases? Secondly, is the gentile tasting the food considered a stringency or leniency? Thirdly, did Rav Yochanan refer to a specific type of gentile whom we can rely on? What does the term “kefeila” mean?
Who tastes and When?
Rashi
The Gemara[4] rules in the continuation that “all prohibitions in the Torah are nullified by sixty.” In other words, we learn from the Gemara that a forbidden substance within any mixtures is generally nullified when mixed with a permitted substance that is sixty times larger. It seems that the Gemara implies that nullification is critical in order to a permit a mixture. However, this seems to contradict what we saw above that one can ask a gentile kefeila to taste and check. In light of this, Rashi comments[5] that in order to permit eating a mixture, two conditions must be fulfilled: First, a gentile must taste it and claim that no forbidden flavor can be tasted. Second, the prohibition must be nullified by a quantity of sixty times of a permitted food. Even If one of these conditions is not met – the mixture is forbidden. Thus, giving a mixture to a gentile to taste is a prerequisite to allowing the mixture to be eaten. Furthermore, Rashi followed the ruling of Rabbeinu Gershom, who explained[6] that the word kefeila means a baker, i.e., a chef – someone who constantly deals with food and whose expertise is in discerning between various flavors. Regarding the gentile’s reliability, Rashi introduces a novelty that the person who is an expert in flavors must also be “מסיח לפי תומו,” talking to us in a casual manner (without him knowing that we are depending on his opinion) since if he knew that we will rely on his testimony halachically, he might deceive us.
The Minchat Cohen[7] explains that the Sages knew that prohibited food imparts flavor to the permitted food up to a ratio of sixty, and as long as there is less than sixty of the permitted food, even if the gentile tells us that he cannot taste any of the forbidden flavor, we must be concerned that the gentile is either deceiving us or is not an expert in tasting flavors. This also applies on the flipside, that ideally even when there is a ratio of sixty, we cannot rely on the presumption that the prohibited flavor was nullified. Rather, we only rely entirely on the nullification of sixty where there is no gentile nearby. This is also the position of Rav Yosef Shaul Nathanson.[8]
Thus, according to Rashi, the purpose of asking a gentile is to find out whether the prohibited food imparted flavor to the permitted food, even though there is sixty times more of the permitted food. If so, Rashi defines the kefeila as a gentile who must be able to discern flavors.
Tosafot and Rosh
Tosafot[9] and the Rosh[10] disagree with Rashi, claiming that the Gemara’s statement of giving a kefeila to taste does not sound like a stringency. Therefore, they conclude that one may eat the mixture if one of the conditions is fulfilled; either there is sixty times of the permitted food and the nullification rule applies, or the gentile says that the prohibited food has not imparted any flavor. If neither of these conditions are fulfilled, the mixture is forbidden. If we conclude according to this approach that having a gentile taste the mixture is not a halachic requirement, but a possible leniency to permit the food, it stands to reason that we don’t need the gentile to be an expert in various flavors and we can use the testimony of any regular person who says that the prohibited food has not imparted flavor. Just as when we have a mixture of teruma and chullin, which a Kohen must taste, there does not seem to be any requirement that he be an expert taster, the same would apply to a gentile.
The problem is that the definition of kefeila as a professional baker offered by Rabbeinu Gershom seems to be accepted by Tosafot and the Rosh as well. Why though according to Tosafot and the Rosh is there a need for the gentile to be a kefeila Tosafot[11] address this question and explain that the need for the gentile to be an expert is for trustworthiness, i.e., really any person can distinguish between the flavors of food, but because of the issue of trustworthiness, we specifically need a kefeila. Since his work and livelihood are based on food, he will be cautious not to lie, since if we tell everyone that he is not an expert with regard to food, his livelihood will be harmed. In other words, there is some deterrence on the kefeila not to lie, and for that reason we can trust him.
Rishonei Sefarad
The Ran[12] states that both the Ramban and Rashba agree with Tosafot and the Rosh, (as opposed to Rashi) that allowing the gentile to taste is a leniency and can be utilized instead of the nullification of bitul b’shishim. However, whereas Tosafot imply that both options are equally valid, the Ramban and Rashba argue that one method is definitely the preferred halachic option, namely, bitul b’shishim.
Furthermore, asking a gentile to taste will not be practical in every scenario, since it is only relevant in cases where after the prohibited food has given ta’am b’heter, it was removed from the mixture, and our sole concern is the forbidden taste, but no forbidden substance. The reason is that even though Chazal were stringent to require bitul b’shishim in this case, that is only because we are not sure how much flavor was imparted into the mixture; therefore, if the gentile says that there is no flavor, we can rely on him, even when there is no bitul b’shishim against the heter substance. However, when the actual prohibited food is mixed into the permitted food to the point where it is unrecognizable and cannot be removed from the mixture, any tasting done by a gentile will not be halachically effective, since Chazal tell us that the substance of the prohibited food imparts flavor up to sixty times against it, and it seems that if there are not sixty times of the permitted food in relation to the prohibited food, the prohibited food imparts flavor. Therefore, we have to say that even though the forbidden substance is not batel b’shishim, if the gentile says that the prohibited food did not impart flavor, he may be lying, or he is not an expert and we cannot rely on his opinion. And when there are sixty times of the permitted food in relation to the prohibited food, we do not need to ask the gentile to taste the food because Chazal have already instructed us that the prohibited food does not give flavor.
Regarding the question of why the need for a kefeila as opposed to an ordinary gentile, the Rashba[13] agrees with Tosafot that the reason is not because he needs to be an expert taster, but rather that it allows us to trust him, as this is his profession and he will not deceive us. Hence, the Rashba adds that if any gentile (even a non-baker) tells us that the flavor is not imparted “meisiach lefi tumo,” in a casual manner while not realizing that we are dependent on his opinion,[14] we are able to rely on him as well.
To summarize their opinion, the Rishonei Sefarad claim that the primary method to permit this mixture is bitul b’shishim. Therefore, only in cases where one cannot be sure that there is bitul b’shishim and we are only concerned about the favor but the forbidden substance has already been removed can the gentile’s tasting make a difference. In addition, the gentile must be an expert in this field or a “מסיח לפי תומו” simply to ensure that he is not deceiving us.
The Rambam
The Rambam[15] writes regarding a possible prohibited mixture (of prohibited food imparting flavor and enhancing the permitted food) that the way to check is by tasting the mixture; the Kohen should taste the mixture of terumot and chullin, and the other mixtures should be tasted by a gentile who is trustworthy concerning matters of permitted and prohibited foods. The Rambam here does not mention the concept of bitul b’shishim in regard to this rule, and also does not mention any conditions about the gentile’s identity.
Regarding the first point, the Minchat Cohen (ibid.) concludes that the Rambam holds that a gentile tasting the food is a legitimate method of determining its status in all cases, unlike other Rishonim who gave certain limitations. Moreover, according to the Rambam, the preferred method to permit mixtures is by giving it to a gentile to taste, and only in situations where this is not possible do we apply the principle of bitul b’shishim.
Regarding the gentile’s identity, the Acharonim note that the Rambam does not stipulate any conditions, meaning that any gentile is permitted to taste the food. The Beit Yosef[16] explains that according to the Rambam, the Gemara calls this gentile a “קפילא” either because one usually gives foods to taste to an expert, or because every person is given a title by the action that he performs, and when he performs the action of tasting, the Gemara calls him a “קפילא.”
Rav Kapach[17] suggests a novel and interesting interpretation of the word to explain this approach. He claims that the Aramaic word “קפילא” is similar to the Arabic word “קבילא,” which means a common gentile, or in other contexts “the son of a tribe,” i.e., a person belonging to a certain tribe. Therefore, the meaning of the term “קפילא ארמאה” is a person belonging to one of the gentile tribes, and it makes no difference whether he is an idol worshiper or a resident gentile who has no religion. In either case, we can ask him to taste the mixture and rely on his opinion.
A Difficulty in Understanding This Halacha
The Shulchan Aruch rules that one has a gentile taste the mixture and he must be “מסיח לפי תומו.” The Beit Yosef explains the consideration in ruling as a compromise; he ruled in accordance with the Rambam who permits relying on any gentile, but he did not want to be completely lenient in deference to Rashi’s stringent ruling. For this reason he ruled like the Rashba, which is somewhere in between. The Shulchan Aruch thus rejects Rashi’s necessity for both the condition of bitul b’shishim and his requirement that a gentile taste in order to permit the mixture, as this is a lone opinion among the Rishonim. Yet the Shulchan Aruch did require that the gentile be meisiach lefi tumo.
Many Acharonim have difficulty explaining this pesak with regard to the laws of trustworthiness of a gentile for the following reason. The Gemara[18] states that a gentile cannot be trusted in matters involving a de’oraita, and yet the Shulchan Aruch rules[19] in accordance with the Rashba that a mixture of prohibited and permitted foods of different types involves a de’oraita prohibition. If so, how could he permit relying on a goy based on meisiach lefi tumo in such situations?
The Shach[20] quotes the Rivash[21] who explains that our case is different because we are dealing with milta d’avida liglyei, a matter that will be disclosed in the future. Immediately after the gentile tells us his opinion about the mixture, we will eat from it and realize if he was lying to us. This gives the gentile more credibility than a regular case of a gentile who is meisiach lefi tumo.
The Taz[22] suggests a novel idea19 that the Gemara that ruled not to rely on a gentile in the case of a de’oraita prohibition was dealing with situations where there is a need for a complete testimony, which is not the case here. Let us explain: The Torah rules that testimony accepted by a beit din requires a minimum of two witnesses, and less than that is not considered testimony. Only עדות גמורה is halachically sufficient to punish transgressors and extract money from one who is holding it, etc. But there are actions that the Torah permits even without the testimony of two witnesses but with circumstantial evidence or the testimony of one witness. An example of this is forbidden foods,[23] where the halacha states that “one witness is reliable concerning a prohibition.
Rabbi Yehonatan Eibschitz[24] gives a different answer. He explains that even though a mixture of forbidden and permitted foods is forbidden to consume on a de’oraita level, there is no permission to rely on a gentile in order to eat the food, but only to taste it. In other words, we are concerned that the gentile is lying, so even if he testifies that the prohibited food does not impart flavor, we are not allowed to eat the food. Rather, a Jew must taste the mixture and see if the gentile was telling the truth. If the prohibited food in fact has not imparted flavor, the food is permitted to all, based on the testimony of the Jew, and if he discovers that the flavor is recognizable, he has only transgressed a derabanan prohibition of tasting based upon the testimony of a gentile.
The Rema
The Agur[25] writes that “I did not see or hear” of any country that has a gentile taste a mixture of permitted and forbidden food; rather, everyone relies on bitul b’shishim alone. The Rema[26] rules this way as well that in our times we do not have a gentile taste the food. This minhag eventually expanded from Ashkenazi communities to many Sefardic locations as well, as is mentioned in the Knesset Hagedola[27] citing other poskim, and the Kaf Hachaim[28] agrees as well.
However, the poskim dispute the reason for the new minhag. The Levush[29] explains that we do not rely on discerning tastes today, seemingly because we have lost the art of tasting in general. This would seem to be consistent with the fact that with regard to the halachot of davar charif,[30] the Levush does not mention tasting a food that has touched something with a sharp taste to check if flavor was thereby imparted, even though the Gemara allowed for it. The reason is most likely due to the fact that the Levush holds that we do not rely on tasting anymore with regard to mixtures.
The Shach[31] disagrees entirely with the Levush and claims that the reason we do not have a gentile taste the food in our times is because of the lack of trustworthiness on the part of the gentile. In other words, it is still possible to detect whether flavor is imparted today, but the problem is that we cannot rely on a gentile’s opinion. The Bach33 explains that the reason is that the gentiles of our times know the Jewish halachot and they know that if a Jew asks them to taste the foods in a mixture, the question is of a halachic nature. Therefore, the gentile has lost his status as a meisiach lefi tumo. The Shach seems to agree with this as well and states that with respect to a Jew, we can rely on him to detect an imparted flavor, whether it is a Kohen tasting mixed teruma and chullin produce or a Jew tasting a davar charif mixed with other foods.
Conforming to State Laws
We mentioned above the opinion of the Shach citing the Rivash that if there is a possibility that we would discover that the gentile lied and he would suffer damage (real or to his reputation) as a result, we can believe him. In ancient times this type of credibility resulted from the person himself, meaning that if the gentile knew that if he was found to be lying, people would stop buying from him, he would therefore be careful to tell the truth.
In our days there is an additional type of supervision; namely, the rules and regulations set by the state that every business owner is required to obey. Some are health related and others are regulatory; sometimes there is overlap between state laws and halachic needs. The poskim debate the halacha in several cases where legal needs correlated with halachic needs and whether a business owner who fulfilled his legal obligation also fulfilled his halachic obligation.
For example, Rav Moshe Feinstein[32] was asked a question about margarine made in a factory owned by gentiles. In that case, state laws required the factory to clean out the machines every Friday using the hagala method – boiling water that removes every remnant of margarine from the previous week. The person asking the question wanted to know if margarine made by the factory on a Monday was permitted to be eaten. Rav Feinstein answered34 that if the hagala required by state laws was sufficient to comply with the halachic requirements, then one can eat the margarine made on a Monday, because the business owner is faithful to his legal obligation and has thus also fulfilled his halachic obligation, and the margarine is kosher.
The Chazon Ish[33] takes a similar approach concerning chalav akum that if there is government supervision that no impure milk is being mixed into the milk of a pure animal, “one can say” that this is similar to a cow that was milked in front of a Jew and it is permitted to drink. Since it is obvious that the business owner following the state law, if the legal requirements correspond with halachic requirements, then there should not be a halachic problem either. Rav Yaakov Ariel[34] writes the same about chalav akum that there are “several Acharonim who have permitted this” though “some avoid using it.” Elsewhere he writes about employing workers who do not keep Torah and Mitzvot and are not faithful to kashrut laws that they must be warned that if they do not abide by the halachic rules, they will be fired and then they have become faithful according to the business owner’s rules.
On the other hand, Rav Moshe Shternbuch[35] was asked about a factory owner who testified in writing that all his products are kosher and the person asking the question wanted to trust him, based on the principle that a professional would not cause himself to lose business, but Rav Shternbuch ruled that such a business cannot be considered kosher if he has no kashrut certificate, and we cannot assume that the owner is telling the truth. The reason is that kosher meat is more expensive and one needs to work harder to provide kosher meat to his customers; consequently, there is concern that he might try to accrue a profit. But if kosher and treif meat have the same taste, cost the same and it is equally easy to purchase them, then it seems reasonable to trust him (assuming he is knowledgeable about the complex rules of Kashrut as they apply in his factory).
Summary
We have seen the Gemara’s ruling regarding a gentile tasting a mixture of prohibited and permitted foods and as well as the different opinions in the Rishonim regarding which gentiles are considered trustworthy to taste this mixture and under which circumstances. We also learned that the Ashkenazi minhag today is not to use a gentile to taste such a mixture. However, the poskim do discuss the possibility of believing a gentile in various cases of state laws that are parallel to halacha.
[1] Masechet Chullin 97a
[2] Shulchan Aruch, Y.D. 92:2
[3] Shulchan Aruch, Y.D. 98:1
[4] Masechet Chullin 98a
[5] Ibid. s.v. b’shishim
[6] Rashi, Chullin 97a s.v. litamei
[7] Minchat Cohen of Rabbeinu Pimentil, Sefer Ta’arovot 1:7
[8] Responsa Shoel Umeishiv, Mahadura Kamma 2:143
[9] Tosafot, Chullin 97a
[10] Rosh, Chullin 7:29
[11] Chullin 97a s.v. samchinan
[12] Ran, Chullin 34a of dapei harif, s.v. uvegmara
[13] Torat Habayit Ha’Aroch 4:1
[14] The definition of meisiach lefi tumo is that the gentile does not realize that the information he is telling us will be used to decipher a halachic quandary.
[15] Rambam, Hilchot Ma’achalot Aasurot 15:29-30
[16] Beit Yosef, Y.D. 98:1
[17] Rav Kapach, Commentary to the Rambam, ibid.
[18] Masechet Bava Kamma 114a
[19] Shulchan Aruch, Y.D. 98:2
[20] Shach, Y.D. 98:2
[21] Rivash 433. It is worthwhile to study the Minchat Kohen on the subject, who discusses the proofs of the Rivash in detail.
[22] Taz, Y.D. 98:2
[23] The Rishonim debate the source for the notion of eid echad ne’eman b’issurim. Rashi (Gittin 2b) holds that the leniency is not explicit in the Torah but is based on logic, just as the Torah believed every person regarding teruma and shechita, etc. Tosafot (ibid.) hold that the source is from the laws of nidda, where the Torah states “Vesafra la,” she must count seven days, implying that a woman who is a nidda is believed to say that she is pure.
[24] Pleiti 98:2
[25] Agur, Hilchot Issur V’heter siman 263
[26] Rema, Y.D. 98:1
[27] Knesset Hagedola, Hagahot Beit Yosef 15
[28] Kaf HaChaim, Y.D. 98:11
[29] Levush, Y.D. 98:1
[30] Levush, Y.D. 91
[31] Shach, Y.D. 98:5
[32] Igrot Moshe, Y.D. 2:41
[33] Chazon Ish, Yore De’ah 41:4
[34] https://tinyurl.com/y23c3x3z
[35] Responsa Teshuvot V’hanhagot 2:376
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