Who May We Trust?
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Trustworthiness with regard to kashrut by Refael Bassel ORIGINAL
The question: Is one who does not observe the laws of kashrut at all and/or desecrates Shabbat trustworthy to prepare kosher food?A more specific question: May one be a guest and eat at his friend’s home if that friend does not observe Shabbat or keep kosher, relying on his commitment to prepare such food? Being a guest at the home of one who does not keep kosherRafael Bassel Translated from Hebrew by Rabbi Adin Krohn Why is a mashgiach (kosher supervisor) necessary? First, the purpose of such a role must be explained, despite the fact that its indispensability is considered self-evident. Why is there a demand to employ mashgichim at restaurants, hotels, and factories that produce food items? After all, it is common for individuals eat at the house of their friends (who observe the mitzvot) and they do not require a mashgiach. If we rely on a person’s testimony that the food in his home is kosher, why may we not rely on a baker who testifies as to the kashrut of the baked goods in his bakery? In other words, there is a halachic principle of: “One witness is trusted with regard to prohibitions.” If so, why has a distinction evolved between the trustworthiness of a homeowner and that of a baker?[1] One witness is trusted with regard to prohibitions It is known that according to Torah: “On the basis of two witnesses or three witnesses shall a matter be established” (Deuteronomy 19:15), and not fewer than two. However, it seems that the Sages understood that the Torah itself recognizes the testimony of one individual, as the Gemara states: “[‘One witness may not rise up against another man.’] It is implied, since the word ‘man’ is stated, do I not know that he is one? Why, then, does the Torah state ‘one’? It is creating a paradigm: Any place that the word ‘witness’ is stated, it refers to two, unless the scripture specifically states one[2].” Apparently, the possibility of one witness does exist. In fact, the Sages explicate that in at least two cases the Torah trusts one witness completely[3], even if those witnesses are disqualified to serve as witnesses in court: “In two cases the Torah trusts one witness: With regard to the unfaithful wife who does not have to drink the bitter waters, and with regard to the calf whose neck is broken, that its neck shall not be broken…in any case that one witness works, a woman and a disqualified [witness] may testify, etc.[4]” Aside from these two cases that the Torah itself specifies, we find several instances in the Babylonian Talmud where one witness is acceptable, even if he is normally disqualified to give testimony, and even if he is a non-Jew[5]. In fact, two talmudic discussions mention this as an halachic principle– which, ostensibly, is in opposition to the Torah law that requires two witnesses in all circumstances– that establishes that in the large realm of permitted and prohibited matters one witness is trusted a priori. The Talmud relates to this principle as though it is well-known, not requiring any formal basis.[6] Many of the early and later authorities deal with two difficulties that arise from this reality: a) What is the basis for the principle of “one witness is trusted with regard to prohibitions”? b) Is this principle, as well as other instances in which one witness is acceptable, consistent with the Torah law that all forms of testimony require at least two witnesses (with the exception of the three cases explicitly mentioned in the Torah)? A summary of these opinions, with regard to each of these questions, is as follows: a) According to Rashi, this principle has no actual source; rather, it is logical that one witness is trusted with regard to prohibitions, since “the Torah trusted each member of the Jewish people with regard to separating teruma and with regard to ritual slaughter as well as removing the sciatic nerve and prohibited fats.[7]” The Ba’alei HaTosafot raised the following challenge to Rashi’s opinion: In these examples the witness, with his testimony, permits something that had a previous status of being prohibited (e.g., with regard to ritual slaughter, he is permitting the animal, releasing it from its previous status being prohibited to be eaten). The reason he is trusted in that case is only due to the fact that it is in his hands to permit that which was prohibited (as he has the ability to slaughter the animal, rendering it permissible). Absent this element, one witness would not be trusted in such a circumstance of a “presumption of prohibition[8].” If so, how can we derive that one witness is trusted with regard to any other prohibitions that have this presumption but are missing the element of “in his hands to permit”? It is possible to respond that the combination of “presumed prohibition” with “in his hands to permit” is the equivalent of prohibitions that have no previous presumption of prohibition, and therefore, it is possible to derive one from the other. The Ran rejected this suggestion and referred to it as a “compromise”[9]. The Tosafot and the Ran explained that the principle of “one witness is trusted with regard to prohibitions” is derived from the fact that a wife is trusted to count the days of her nidda status[10]. The Rambam wrote: “one witness is trusted with regard to prohibitions…as an evildoer who ritually slaughters, his slaughter is valid and he is trusted to say ‘I slaughtered in accordance with the halacha’[11].” The challenge of Tosafot and the Ran, that one witness is trusted with regard to ritual slaughter only because it is in his hands to permit it, can presumably be applied to the Rambam as well. However, it seems that the Rambam holds that this presumption– that one witness is believed in a case of presumed prohibition only when it is in his hands to render it permissible, which seems to be the simple reading of the discussion in both Gittin and Yevamot– is not the accepted halacha, since it is in opposition to another presumption, namely: “One does not sin on behalf of another[12]” (in order for another to benefit)[13]. In fact, the Rambam continues: “However, one who is suspected with regard to a particular matter is not trusted about his own items, but he is trusted with to regard to someone else’s. Therefore, one who is suspected about a particular matter may serve as a judge and may testify for others, as we presume that one will not sin in order that others will benefit.” Apparently, this presumption overrides a case of a presumed prohibition, even when it is not in his hands to render it permissible (as he is testifying about others’ items), resulting in one witness being sufficient. One might have suggested that the Rambam is referring only to cases of testimony about others’ items when it is in the witnesses’ hands to render it permitted, similar to the suggestion of the discussion in Yevamot.[14] However, this is difficult, as the simple reading of the Rambam indicates that he makes no such distinction, and that one who is suspect with regard to one matter is still trusted to testify for others even when he cannot render it permissible, like the case of teruma. And it is not possible to say that the case of teruma is considered “in his hands”, since the Rambam rules against the suggested opinion in the previously mentioned discussion in Yevamot (that it is possible to separate teruma for others, from others’ produce, without their knowledge): “Five people may not separate teruma, but if they do, it is valid…and one who separates teruma that is not his without the permission of its owners.”[15] And lest one ask how the Rambam knows that this presumption, that one does not sin on behalf of others, overrides the simple reading of several discussions in the Gemara that conclude that one witness is not trusted when there is a presumptive status of prohibition? Based on the Kessef Mishne[16], it is possible to suggest that the Rambam rules that the Gemara in Yoma (78a) establishes that with regard to the disagreement between Rabbi Meir and Rabban Shimon ben Gamliel in the Mishna in Bechorot (5:4), the halacha is in accordance with Rabban Shimon ben Gamliel, who rules that one who is suspected about a particular matter may not testify or serve as a judge with regard to that matter, as it pertains to himself; however, he may do so with regard to others. The Rambam ruled similarly in Hilchot Bechorot: “A Kohen who testifies about another kohen that a particular blemish fell off by itself is believed. And there is no concern that the two Kohanim are reciprocating, as all Kohanim are suspected of making a blemish on a first-born animal so they would be allowed to eat it outside [the Temple]. Therefore, they are not trusted with regard to themselves; however, he fellow may testify about him, as a person does not since on behalf of another[17].” Clearly, then, he is teaching that this presumption, mentioned several times in the Talmud[18], is a fundamental principle in the halachic system. Nonetheless, the Ra’avad disagrees and rules in accordance with Rabbi Meir[19]. Some commentators explain that he does so because he holds that this presumption is weak, and therefore we are concerned for the minority of people who may sin on behalf of someone else[20]. With regard to this comment on the Rambam, it is possible to suggest simply that the Rambam learned the discussions in Gittin and in Yevamot in the manner of several of the other early authorities[21]. Namely, that the conclusion of these discussions is not that one witness is not trusted in the case of a presumed prohibition, if in fact there is a clear conclusion in those discussions at all. b) In order to explain how the trustworthiness of one witness, particularly in the case of prohibitions, is compatible with the Torah law: “On the basis of two witnesses…shall a matter be established,” several suggestions have been offered by the later authorities. Some relate this issue to a disagreement among the early authorities[22] about whether or not Ulla’s statement: “Any place that the Torah trusted (explicitly) one witness, it refers to two”[23] applies even to cases of one witness with regard to prohibitions or not (since the trustworthiness of one witness with regard to prohibitions was not explicitly stated by the Torah). The primary explanation of these later authorities is expressed in their attempt to present a fundamental distinction between the Torah law and the trustworthiness of one witness with regard to prohibitions. Some claim that the Torah law is in the realm of official testimony and that these laws are not about trustworthiness or who to believe (therefore, e.g., “two are like one hundred”- a group of one hundred witnesses is no stronger than a group of two, if they contradict each other[24]). In contrast, the issue of one witness is precisely about trustworthiness, and therefore is not connected to the realm of the technical laws of testimony. After all, it is the testimony of an individual, and based on the laws of testimony “one witness may not rise against [another] man.” The later authorities differ with regard to the question of how to categorize the testimony of one witness, if it is not, in fact, official or technical testimony. Some explain that it serves to clarify the reality of a given situation[25], while others say that it has the strength of a halachic ruling[26]. That is, testimony is defined as two witnesses (with three exceptions); the Torah (or the Sages) then added a novel idea as well when it comes to clarifying a particular situation. Seemingly, there is a difficulty here, stemming from the fact that no fundamental difference with regard to this issue is explicitly referenced in the Talmud or the early authorities. Possible other explanation- process of negation It is possible to suggest that anyone who testifies– “before me it was written”, “before me it was signed”, “I saw such and such”, “I was present when such and such occurred”- whether he came alone, whether it is a woman, a servant, or a gentile,[27] is[AZK1] believed. Although there is certainly the possibility that he is lying or faking, as long as there is no external indication that that is the case, we accept his testimony. This is because the Torah established that these are (among) the manners in which legal matters are determined: May this one come and testify about this one. The Rambam writes: “Because Hashem commanded us through Moshe Rabbeinu and told us: If witnesses testified about a particular matter, act in accordance with their testimony and presume them to be righteous, despite the fact that with regard to this matter they may be righteous and they may be lying[28].” In other words, we were forced to trust them. The general rule is: All testimony, of one or of many, is a means to clarify the reality of a situation. Similarly, all testimony, of one or of many, depends on trust. Therefore, whenever there is a problem with trustworthiness, we do not accept the testimony. Thus, we do not accept the testimony of, for example, witnesses who have a history of lying, witnesses who contradict each other, or “amei ha’aretz” whose trustworthiness is in doubt.[29] It is possible, therefore, to define the basic rule of testimony as follows: In general, everyone is considered valid to give testimony, including an individual, with the exception of certain people and certain circumstances.[30] However, because the aim of hearing testimony is to arrive at the truth, the Torah, through scriptural decree[31], was strict – with regard to certain stringent areas of law, in which money would change hands, the holidays would be established, or corporal or capital punishment was to be meted out– not to accept the testimony of fewer than two valid witnesses. The reason for this is that the testimony of many allows for investigation of each witness separately, as well as in comparison to the words of his fellow witnesses, leading to a higher level of certainty: “The examinations and investigations are the main element of the testimony…as we cannot declare witnesses to be false, conspiring witnesses until they are aligned with regard to time and place[32]”. The reason is not that there are problems with the basic trustworthiness of the testimony of an individual[33]. From the aforementioned reason (attaining truth) there are additional individuals who are disqualified from giving testimony in most areas of Torah law; those who are suspect or who are easily swayed by money. This group primarily consists of those who are suspected of theft: Cattle herders, dove racers, gamblers, and those who eat in the market from others’ property. Alternatively, their testimony may be fundamentally flawed, such as the deaf and blind. There may also be objective flaws, such as minors or the mentally incapacitated. Similarly, women and slaves are disqualified witnesses (this requires elaboration in another context). This stringency is so widespread and applies to so many areas of Torah law that this basic rule that testimony is generally accepted is, for all intents and purposes, reversed, so that: Generally, testimony is through two witnesses, with certain exceptional individuals or circumstances[34]. A Midrash Halacha from the time of the tanna’im seems to express this very idea: “’One witness may not rise up against a man.’ I know only about capital cases. From where do I know that it applies to monetary cases as well? The Torah states: ‘For any sin.’ For sacrifices, from where do I know [that the same is true]? The Torah states: ‘For any iniquity.’ For lashes, from where do I know? The Torah states: ‘For any sin which he violates.’ (To count one as a kohen and) to remove someone from his status as a kohen[35], from where do I know? The Torah states: ‘[For any sin] and any iniquity’[36]” Apparently, the point of departure, or the chronological order, is that everyone is considered valid to give testimony. Only afterwards, as it were, does the stringency take hold, negating the validity of one witness from most areas of halacha, in addition to other problematic forms of testimony[37], ultimately resulting in the opposite principle, that any case of testimony is assumed to require more than one, absent explicit qualification to the contrary (Sota 31b). It seems that the Rambam’s formulation of these issues expresses this idea as well. After the Rambam lists those who are disqualified from giving testimony as part of a group (chapters 10–11), he writes that these do not apply to the areas in which an individual is trustworthy. Again, a priori, everyone is trustworthy; only afterwards do we disqualify certain people. However, this is only true in those areas in which an individual’s testimony has not been rejected. Due to this understanding, the early authorities had to find a basis for the rule of “one witness is trustworthy with regard to prohibitions” not because it contradicts the basic Torah law of “with two witnesses…a matter shall be established”– as this is only true in most cases and practically is directed, for the most part, at capital cases and at monetary cases, as mentioned above: “one witness may not rise up: I know only about capital cases…”, and in the words of the Baalei HaTosafot “something that applies to all testimonies in the Torah:…such as monetary cases and capital cases– rather, in order to synthesize it with the practical rule (in most instances) that establishes that testimony generally refers to that of more than one person unless it is specifically clarified otherwise. This is precisely the attempt; to clarify it, since the scripture did not mention explicitly that one witness is trustworthy with regard to prohibitions. Accordingly, one should not view the list of disqualified witnesses as a closed and sealed list, rather as a dynamic one, that requires constant updating to match the integrity of certain groups of people in different eras. It may be necessary to disqualify more people, depending on their level of trustworthiness, or perhaps to render others who were once disqualified as valid witnesses if it is clear that they are no longer suspect in what they once were. In the words of the Ba’alei HaTosafot: “’The matter seems reasonable to believe[38]’- or that it is no longer fitting to say about them that they are not valid to give testimony (in a manner that fits with the halacha and as long as they are not disqualified by scriptural decree or the like); this is a result of a desire to arrive at the factual truth.” In fact, several disqualifications were established even in areas in which an individual is trusted. And on the other hand, several disqualifications became valid, given certain indications that they are to be believed. Several examples follow: One who is suspected about a particular matter and an interested party One who is suspected of violating a certain prohibition is not trustworthy to give testimony with regard to that prohibition. Because he treats the prohibition lightly, we suspect that he may lie in order to save money[39]. In addition, the testimony of a person who has a monetary interest or some other personal interest in a certain case is suspect as well[40][41]. That being said, when there is an indication (lit.,“the matter has legs”) that such a person will not be enticed by money, so that “the fear of the prohibition is upon them, and not the fear of money”[42] they are trusted; for example, to testify about others. “Am Ha’aretz” In mishnaic times “it was difficult for them [for amei ha’aretz] to separate tithes, and some of them acted leniently for themselves and only separated teruma but not the tithes[43]”, and therefore they were not trustworthy to testify about whether or not fruit had been tithed properly. Even one who was a guest at an am ha’aretz’s home lost his trustworthiness with regard to tithes, as he had eaten from thedemai [food suspected of not being tithed] of the am ha’aretz[44]. Generally speaking, an am ha’aretz– defined as one who is not accustomed to be involved in[45] at least one of the following three matters: (study of) mishna, scripture, labor or other areas of social etiquette[46] [= derech eretz]– is disqualified to give testimony in the matters in which he is suspect (primarily as regards monetary law because he is suspected of theft and is “damaging to the settlement”)[47]. Since most amei ha’aretz at that time fit this description, namely, they were suspect with regard to theft, they were all presumed to be disqualified as witnesses, until one was able to prove that he was involved in one of these matters mentioned above (and certainly in all three, as about them it is stated: “and the three-fold thread will not easily be broken[48]”). However, with regard to matters that one is not suspected of disregarding, for whatever reason, we do accept his testimony: “We have already explained that amei ha’aretz are trusted with regard to the purity of the red heifer; because of its stringency, people do not disregard it. Similarly, they are trusted with regard to the purity of the wine and oil of libations; if they say it is pure, it is assumed to be pure. Because of its stringency, they are careful in that regard. And similarly, they are trusted with regard toteruma at the times of the wine and oil press, since the entire nation purifies themselves and their vessels in order to produce their wine and oil in a state of purity[49].” In a similar manner, it is related in the name of Rabbi Yossi that one should trust amei ha’aretz with regard to accepting teruma from them, out of a concern for excessive enmity between the amei ha’aretzand the scholars[50]. The Ba’alei HaTosafot wrote in the name of Rav Elchanan that for this reason we do not refrain nowadays from joining with an am ha’aretz in a zimmun, despite the explicit prohibition to do so found in massechet Brachot (47b). Rabbeinu Yitzchak, the elder, disputes the very existence of a distinct status of scholars in his time[51]. Non-Jews The rule [according to our understanding, in the majority of cases] is that a non-Jew is disqualified from providing testimony[52]. Nonetheless, we find that a non-Jew is believed when there are indications that he should be trusted, such as: “a matter that will be revealed”, “speaking innocently”, with regard to a professional- “a professional does not ruin his professional reputation”, and “he is afraid”. For example: “one may not boil milk in a pot in which one [previously] cooked meat. And if he did- [it is prohibited if] the taste is recognizable. A pot in which one cooked teruma, one may not cook non-sacred food. And if he did, [it is prohibited if] the taste is recognizable. It makes sense in the case ofteruma, as one can have a kohen taste the food. But with regard to meat and milk, who is going to taste it (since if the food ends up being prohibited, it is prohibited upon any Jew)? Now that Rabbi Yochanan stated: we rely on an Aramean cook, here too- we rely on an Aramean cook[53].” Apparently, a non-Jew (“Aramean”) is trusted to report whether or not there is the taste of milk in the cooked item, and we rely on his words. Other indications- some of which have a linguistic connection to the term “Aramean cook” (“kaphach”)– were provided by the early authorities with regard to the trustworthiness of a non-Jew who testifies about the taste of a cooked item. According to Rashi, it is essential that the witness “speak innocently”- that he should not know the practical implication of his testimony- and “speaking innocently” is an acknowledged indication in the Talmud[54]. According to the Ba’alei HaTosafot[55] a “cook” is someone who is an expert in taste (perhaps a chef). The Aruch writes similarly in the entry “k.ph.l.”. Rashi explained this way as well, despite the fact that according to Rashi his best online casino being a specialist is not what actually renders him trustworthy; rather, it is his speaking innocently). And the indication that he is trustworthy is the principle “a professional does not risk his professional reputation”. The Rambam writes: “a non-Jew tastes it and we rely on his word[56]”. According to the Rambam, a “cook” is not a necessarily a professional, but rather any non-Jew. The Rambam believes that identifying flavor can be done by anyone (as long as he has a sense of taste). The first case of the kohen supports the Rambam’s understanding, as the kohen is not an expert in flavors [57]. However, the Rambam provides no particular indication why we rely on the non-Jew. Some later authorities[58]explain that it is due to the fact that it is something that will be revealed in the future, as if he states that there is no taste of milk in the food, we will eat it and dispute his claim. And we have a principle thatwith regard to a matter that will be revealed, people do not lie[59]”. According to this logic, it is possible that, in such a case of matters that will be revealed, a non-Jew is never disqualified. The “professional status” that the Ba’alei HaTosafot had to rely on in the discussion of the “cook”, namely, that a professional does not lie when there is the potential of damage to his reputation, is found is several places. For example: “[With regard to] one who buys a tallit with tzitzit from the market: [If he buys it] from a Jew- it is assumed [to be kosher], from a non-Jew- if it is from a merchant- it is kosher, if it is from a regular person- it is invalid[60]”. Rashi explained: “Since a merchant will not ruin his professional reputation”. It should be emphasized that in some circumstances this assumption is not enough or does not even exist at all. For example: One may not purchase meat that does not bear a sign– that testifies to its kosher status or its belonging to a certain expert butcher and that is not able to be counterfeited. Or, it must bear two signs, one in front of the other[61]– from a non-Jew, even if he is a professional. And the general principle of “does not ruin his professional reputation” does not apply here (Chullin 95a). The Magen Avraham explains that this principle exists only when the particular activity that is being performed can be done exclusively on behalf of a Jew, such as making a tallit with tzitzit. This is because he is very concerned lest he be caught lying, since if he is caught online casino the Jew will no longer purchase these items from him. Further, he will have nothing to do with this merchandise. However, with regard to the sale of meat, if a Jew does not buy it, a non-Jew still can[62]; therefore, in such a case, he is not trustworthy. Clearly, this is a significant limitation on the presumptive trustworthiness of a professional. This explanation is also opposed to the opinion of Tosafot expressed with regard to the “Aramean cook”, as the cook will not lose his work if Jews stop utilizing his services. Thus, the Noda BiYehuda dismissed the Magen Avraham’s reasoning and expressed himself in an unusual, albeit linguistically (in Hebrew) clever, fashion: “The Magen Avraham made up a reason (lit. taste) on his own[63].” The simpler explanation is that the discussion in Chullin about not purchasing meat that bears no sign from a non-Jew, and even from a professional, is not related to the trustworthiness of professionals in general. This is due to the fact that at the time of the Talmud the butcher both slaughtered the meat and sold it[64]; non-Jewish store-owners did not sell ritually slaughtered meat at all. Since a merchant who sells exclusively non-kosher meat had no reputation with regard to ritually slaughtered meat, there was no presumption of his trustworthiness when he attempts to sell the kosher meat that one time. And even if there were to be a non-Jew who sold properly slaughtered, kosher meat (that had been slaughtered by a Jew), the presumption would still not apply to him, as even a Jew who is not presumed to observe the laws of kashrut is not trusted in this case[65]. One might argue that this stringency applies only to a Jew who is slaughtering and selling meat for his own benefit; but he should be permitted to do so for others, due to the principle of “one does not sin on behalf of another”[66]. However, this principle applies only to Jews; the non-Jew would still not be trusted to sell to others. The whole principle is based on the fear of sin when there is no monetary pressure; this cannot be applied to a non-Jew nor to a Jew who is not observant of mitzvot[67]. Even if we say that nowadays the non-Jews, and Jews who themselves do not observe mitzvot, are more careful not to lie, the Sages were very strict when it comes to meat that bears no sign and that was not continuously watched by an observant Jew, to the extent that even if a Jew took his eye off the meat in his own home he may not eat it; a non-Jew is not considered a reasonable guard in such a circumstance. The Rashba explained that the reason for this is that since the non-Jew has regular access to non-kosher meat, we are concerned that he will switch them[68]. However, while this is true for a non-merchant, what about a non-Jewish merchant, who is a professional? Therefore, the Rashba added that the principle of “a professional does not ruin his reputation” only applies when it is possible to reveal the lie. However, it is almost impossible, if at all, to distinguish between kosher meat and non-kosher meat, absent any type of sign; therefore, there is no presumptive trustworthiness of the professional in this case[69]. As stated earlier, the list of valid and disqualified witnesses is not fixed. We have seen that someone who is generally disqualified, given the existence of certain strong indications in certain circumstances, can be rendered trustworthy. The opposite is true as well; certain circumstances can render an otherwise trustworthy person to be disqualified. For example: originally, people from Eretz Yisrael as a group were considered trustworthy with regard to meat, wine, and cheese. However, once their lofty spiritual state was called into question, we find: “One may not purchase wine…cheese and meat…that bear no sign, except from someone whose reliability is established[70]”. And even if at one time the entire Jewish people had a presumption of “kashrut” (not with regard to marrying Jews, but with regard to watching meat properly, even when it bears no sign[71]), it is obvious that nowadays that is not the case[72]. In a similar vein, it is worthwhile to investigate the words of the Rambam: “One who purchases meat (that bears no sign) and had it sent in the hands of an am ha’aretz, he is trustworthy…and we are not concerned lest he exchange it (for non-kosher meat); but not non-Jews, lest he exchange it”. And all the more so based on the reasoning of the Rashba, that one who is suspected to eat items about which most people are not lenient, he is also suspected of exchanging[73]. Would their words apply nowadays to a Jew who is not necessarily assumed to observe the laws of kashrut? It seems obvious that they would not apply to one who is actually suspected of violating these laws[74]. Similarly, it seems obvious that if after repeated checking it becomes clear that professionals nowadays are not worried about their reputation for whatever reason, or that they are worried but find ways of lying without getting caught, or that they believe they will not be found out, or that the risk they are taking is financially worthwhile, they cannot be trusted by relying on this presumption. In order to rely on them we would require other indications of their trustworthiness or we would need to increase the level of “fear”. The following words of the Rambam require analysis: “One who is a guest in another’s home at any time or location, and he brings him wine or meat or cheese and a piece of fish, it is permissible (to eat it) and there is no need to inquire about it, even if he does not know the host and knows only that he is a Jew. But if [this individual] is known to be untrustworthy and is not careful in these matters it is prohibited to stay with him. And although one witness is trusted with regard to prohibitions, it was already mentioned earlier that one who is suspected in a particular matter is not trusted to give testimony about it. And even though we have seen that if certain indications are present even one who is suspected can be trusted, nonetheless, here there are none. On the contrary, there is a presumption that one who is suspect in a certain area is not careful about the prohibition of [“do not place a stumbling block] before the blind.” And if one did stay with such a person, he may not eat meat or drink wine based on [the host’s] word, until a qualified person testifies about them[75]”. Is the status of a regular Jew nowadays, at least in the United States, the equivalent of what the Rambam termed “known to be untrustworthy”? After all, the reason the Sages were lenient and allowed people to be a guest at the home of an am ha’aretz is that although they treat these matters lightly and have no qualms about purchasing food form non-Jews and selling it to Jews (out of greed), since they observe these laws in their own home and for themselves, one may stay with them[76]. However, since most Jews nowadays, at least in the United States, do not observe kashrut themselves, therefore, it would seem that in their homes they would not be wary of violating “do not place a stumbling block before the blind”. On the other hand, perhaps one would be permitted to be a guest even at the home of those people the Rambam labeled as being untrustworthy; since we see that nowadays most people, Jew and non-Jew alike, accept the societal demand to distance oneself from falsehood and respect the special requests and needs of their guests as well as the values and beliefs of other human beings in general. Therefore, one could argue that nowadays the presumption that “one who is suspect in a particular matter is suspected of violating ‘before a blind person’” is not a halachic presumption, as long as there is no monetary interest involved. Additionally, one could say that especially nowadays the principle of “a person does not sin on behalf of another” has an even stronger basis[77]. “Afraid” Based on the above, it should be clear why there is a demand to appoint a mashgiach in restaurants, hotels, and food-production facilities, despite the fact that one witness is believed with regard to prohibitions. We have difficulty trusting the owners of these establishments, whether because one who is suspectabout a particular matter is not trusted about it (and, as stated, the average Jew today does not observe these laws), or because of the monetary interest the owner has in his business which makes it difficult to trust him. Lest one say that this all applies only to an individual, but the owner of a business would have the halachic presumption that a professional does not ruin his reputation, we have seen that this is not sufficient, for several reasons. The Magen Avraham wrote that this presumption applies only when the professional has no one else to sell to other than the Jew (such as the tallit with tzitzit); but food can certainly be sold to anyone. Further, we observed that this principle does not apply to doubts surrounding the kashrut of meat, cheese, and pieces of fish even to a Jewish professional, if he is not otherwise assumed to be an observer of these mitzvot. Additionally, the Rashba wrote that the principle that the professional does not want to ruin his reputation is only in effect when the matter can be independently clarified and the lie could be revealed. However, food cannot be objectively identified as being kosher or not, nor as having been ritually slaughtered or not. From the above it also is clear why there is no need for such supervision in a supermarket or local grocery store, as the food products there are in wrappers and bear kashrut symbols. There is no reason to suspect the owner, whose reputation matters to him, of tampering with these symbols, of forging them and the like (obviously, unless it becomes clear that he is doing so). However, restaurants and hotels, whose food is not labeled, or at least not from the time the packaging was opened, there is concern that exchanges could occur. The owner or manager is not trusted to testify as to the kosher status of the food, and the principle of the trustworthiness of a professional is not relevant without the addition of other indications that point towards his trustworthiness. This is similar[78] to one who leaves a non-Jew to watch over his wine store (the Tosafot wrote that this is discussing a case of one who leaves the non-Jew there a priori[79]), where although the non-Jewish worker has no presumption of trying to protect his professional reputation, it is enough to have the Jew coming in and out sporadically (he does not have to remain there continuously) in order to assume that the worker will not do anything that the Jew told him not to do[80]. However, the Tosafot wrote[81] that when leaving an apostate Jew in one’s store it is not enough to come in and out; one must remain there continuously, since the apostate Jew is not “afraid”, as he views himself as a Jew. Rav Chaim David HaLevi wrote similarly: “And now, let’s see if the Jewish butchers, who remove the yoke of Torah and mitzvot from themselves, are more trustworthy than their non-Jewish counterparts. In my opinion, the opposite is true, that non-Jewish butchers are more afraid than the Jewish ones[82]”. Rav Kook noted that this is only if the apostate does not know that they suspect him. However, if he understands that the Jew comes in and out in order to check in on him, then even that is sufficient[83]. With this perspective, it seems that if representatives of the community require the Jewish business owner to sign a special contract that delineates the repercussions if he is caught exchanging non-kosher food in place of kosher food or preparing food not in accordance with the laws of kashrut (if he does not know the laws, they teach him), along with a supervisor coming in and out sporadically, the owner is to be trusted based on the principle of the professional wanting to maintain his reputation combined with the principle of “afraid”. According to Rav Yosef Mashash this is true even if the Jew desecrates Shabbat in public (who is considered like a non-Jew, whose ritual slaughter is not kosher[84]), and even other transgressions that bear capital punishment[85] as long as the likelihood that he will not lie is sufficiently strong. As he concludes: “If so, we can say that even a public desecrator of Shabbat is trustworthy in this matter, since he is abundantly afraid[86]”. When this fear comes from the government and not for the community (that is, the customers) Rav Azriel Hildesheimer was unsure and did not come to a clear conclusion[87]. Rav Moshe Feinstein, however, expressed his opinion on this matter in his Teshuva with regard to “milk of a non-Jew”, that the fear of the government is effective: “With regard to milk of the companies in our nation, that there is governmental supervision, and if they would mix the milk of a non-kosher animal they would be punished and they would even close down the business, and therefore, they are certainly afraid to mix it in, there is a great reason to permit (drinking this milk) even without the opinion of the Pri Chadash, because the main issue is that clear knowledge is like actually seeing.”[88] Based on this reason it is clear why it is not permissible for the mashgiach to receive his salary from the owner of the business that he is supervising, as that would not create a sufficient level of fear on the part of the owner[89]. It should be emphasized that nowadays there is a widespread view that the source of the trust of mashgichim is not because they are “afraid”, and there is actually no trust extended to the owners of the restaurants or hotels and no other indications help. According to this view, the mashgiach is simply a replacement for the business owner with regard to trustworthiness. He is not a “guard”, but rather he is a witness who testifies to the kashrut of the food in the establishment; we rely on his testimony simply due to the principle of “one witness is trusted with regard to prohibitions”. In this way, it is easy to overstate the importance of the piety the mashgiach: Three qualities must be found in the mashgiach…that he is a ben Torah who stands out even among other bnei Torah, and he must fear Heaven and fear sin[90]”. However, it should be noted that financial pressure along with other issues have caused certain business owners, in whose food establishments observant Jews would never have considered eating or purchasing food, to seek kosher certificates even though they themselves are certainly not trustworthy. This may be simply because they do not know how to prepare kosher food, be it dealing with tithes or cleaning fruits, vegetables, rice and flour properly. Nowadays, these owners acquire a kosher certificate in order to expand their customer base to include those who observe kashrut. In these cases, they only receive the certificate when the mashgiach takes upon himself all of the traditional roles of the owner, the baker, or the butcher: He separates tithes, sifts flour, cleans, and in some cases even lights the ovens, and the like. There is no doubt that in these cases the trust is given to the mashgiach and to the mashgiach alone. Our study thus far has focused on a business owner who has a monetary interest. We will now deal with being a guest in a private home belonging to those who do not keep kosher (“suspect in the matter”) and those who desecrate Shabbat, who are disqualified from giving testimony, when they testify that the food is kosher and was prepared in accordance with halacha. On the one hand, they do not have the presumption of validity that a professional has, and there is no mashgiach creating a sense of fear. On the other hand, there is no monetary interest at play and there exists as well the halachic presumption that one does not sin on behalf of others. It seems that in this type of case we require a higher degree of trustworthiness, since based on the guidelines with regard to the trustworthiness of one witness they should not be believed[91]. Therefore, according to Rav Moshe Feinstein one may rely on their word only when there is a familial relationship and one knows them and trusts them.[92] However, absent such a familial relationship, even if one knows them, he should not rely on their word in this matter[93]. Rav Asher Weiss disagreed with this point in his shiurim and felt that there is no inherent logic to make the distinction between family and other people, since people often rely on their friends more than on their family members[94].Conclusion[95]By combining the opinions of Rav Moshe Feinstein and Rav Asher Weiss, one may rely on a non-observant host with the following conditions. The guest must know the host, be familiar with his lifestyle and his thought processes, understanding that despite the fact that the host does not himself observe the Torah in accordance with the requirements of the halachic system he does respect its basic tenets and demands and would not disregard them. The host must know how to properly identify kosher food, and how to prepare it in accordance with halacha, in new dishes or those that are used only with kosher food. Essentially, the guest must honestly feel that he can transfer the responsibility for what he puts into his mouth to his host; in such a case there is no greater trustworthiness than this, as one need not suspect a trustworthy person of falsehood[96].However, if he suspects that his host may say to himself: if the Torah and/or the halachic system is pointless, nothing will happen to my guest if he eats prohibited food as long as he is unaware of it and thinks he is eating permitted food; therefore, I will cook whatever I like or serve what I want” (and this type of thinking is not uncommon), then obviously one may not rely on him. In such a situation one may accept only coffee or water or other items that bear no kashrut concerns, items that one could eat even in the house of a non-Jew.And if he does not know the host well enough to ascertain the information delineated above[97], it seems appropriate that one should not be permitted to eat cooked items or meat or cheese that is not packaged (“that bears no sign”).One who desecrates Shabbat but does observe the laws of kashrut, even in a basic form, is to be trusted and one may eat in his house[98]. [1] Rav Asher Weiss, in his responsa Minchat Asher, was asked: Why are we accustomed to appoint kosher supervisors in hotels, restaurants, and factories engaged in food production instead of relying on the simple halacha of: “One witness is trusted with regard to prohibitions” (I:37). [2] Sota 31b. [3] Ulla said: Any case in which the Torah trusts one witness, behold [is as though] there are two (Ketuvot 22b). [4] Rambam, Hilchot Eidut 8:2-3. [5] This provides a potential response to the question of the R”IT Algazi of why the Rambam omitted the other cases in which we find that one witness is trusted (See Kedushat Yom Tov, Siman 15), namely, because these two cases that the Rambam mentioned are the only ones where theTorah bestows upon one witness full trustworthiness (see note 3), even if he is otherwise disqualified as a witness. The one other case where the Torah believes one witness is with regard to an oath; however, in that case the Torah believes only one who is a valid witness (Rambam, ibid.). All of the other places in which the Talmud discusses the trustworthiness of one witness are not explicit in the Torah. As such, there is no need to make distinctions between trustworthiness and judicial protocol in order to explain the Rambam, as some of the later authorities attempted to do. [6] Hullin 10b; Gittin 2b. [7] Gittin, ibid., s.v. “umeshani”. [8] This is the implication from the conclusion of the discussion there in Gittin as well as in Yevamot 88a. [9] See the explanation of HaRav Kaufman printed in the Mossad HaRav Kook edition of the Ran. [10] Ketuvot 72b. The Rashba wrote similarly in his commentary to Gittin 2b. [11] Hilchot Eidut 11:8(7), in accordance with the Gemara in Hullin 3a:”All are valid to ritually slaughter (and are trusted to testify ‘I slaughtered in accordance with the halacha’, even an apostate Jew.” [12] Rambam Hilchot Bechorot 2:[16](17). [13] Kiddushin 63b; Bava Metzia 8b; Shevuot 42b;Arachin 23a. [14] Ibid. [15] Terumot 4:2 [16] Bechorot, ibid. [17] Ibid. [18] Note 13. [19] In his glosses to the Rambam, Hilchot Eidut, ibid. [20] Chidushei Chatam Sofer on Shas, Chullin 8a. [21] Teshuvot HaRashba, I:127; ibid. IV:313; Chidushei HaRamban Yevamot 88a. [22] The Shach brought them in Yoreh De’a 127:14, as did the Nimukei Yosef on Yevamot 28a, s.v. “garsinan” in the name of the Ritva. [23] Note 3. [24] Tzafnat Pane’ach, Klalei HaTorah veHaMitzvot 8, s.v. eidim; Rav Moshe Feinstein in Igrot Moshe Yoreh De’a I:68:1. [25] Taz, Yoreh De’a 98:2. [26] Rav Elchanan Wasserman, Kovetz He’arot 63:3. See also Rav Chaim of Brisk (stencil), siman 98. [27] However, the opinion of the Noda BeYehuda (III, Orach CHayim 72) that one may never rely on the word of a non-Jew even when he is considered trustworthy (one may purchase a tallit with tzitzit from a Cuthean merchant), this is not because he is believed. The difficulty with this seems to be that normal practice is to rely on the word of non-Jews in matters that “can be revealed” (See notes of the GR”A, Yoreh De’a 98:8). [28] Letter to Yemen, Rav Kapach, page 38. He wrote similarly in Hilchot Yesodei HaTorah 7:[17](7). [29] Rambam, Hilchot Eidut, chapters 10–11. [30] Midrash Halacha, Sifrei Devarim, Shoftim. And hereinafter. [31] With regard to those who believe that even scriptural decrees have a logical explanation, with Rabbeinu Menachem HaMeiri one the foremost, see “Midda Tova”, Parshat VaYera, 5768; also, ibid. Matot-Masei 5769. This is also the opinion of Rav Gedalya Nadel: “Certainly even these halachot have logic. An illogical matter cannot be part of what the Holy One, blessed be He, commands us” (Mekorot HaHalacha, p.38). [32] Rambam, ibid., 1:[7](8). [33] The Tashbetz wrote: “Certainly one witness…it is a distant concern…that he is testifying falsely” (I:77), as did the Rashba (Teshuvot Meyuchasot). The “Netivot HaMishpat” (81:6) agrees, as does the “Urim VeTumim” (44:4). [34] According to what was established in Sota 31b that was mentioned earlier. [35] “The term “chatat” can also indicate a reduction or diminution, as here it refers to removing one from his status as a kohen” (Torah Temima, Devarim 19, note 38). [36] Sifrei Devarim, Shoftim. [37] Gittin ibid., s.v. “midi”. [38] Yevamot 88a, s.v. mitoch. [39] Bechorot chapter 8, mishna 4. [40] Bava Batra 43a. [41] Shach and Sema, Choshen Mishpat 37:1. [42] Rambam Hilchot Eidut 11:9. [43] Rabbi Dr. H. Albeck, introduction to Massechet Demai. [44] Demai chapter 2, mishna 2. [45] Kiddushin chapter 1, mishna 10. In the printed version it writes only: “who is not in the mishna.” It does not explain what that means. And in the end of the mishna it writes: “one who holds on to all three” but does not explain what “holding” means precisely. However, in the Tosefta it writes: “is involved in.” This is how Albeck explained it as well. One could investigate the relationship between the term “am ha’aretz” used here and the same term used in the beraita in Brachot (47b) about one with whom one may not make a zimmun. [46] The reason is that one who is preoccupied and involved in work is withheld from theft (Ritva, Kiddushin, second edition, Mossad HaRav Kook page 299). For a different explanation, see Rambam’s Commentary to the Mishna, Kiddushin 1:10. [47] Kiddushin 40b; Rambam, Hilchot Eidut 11:1; Ritva ibid. [48] Rambam, ibid. Rav Kapach wrote in his commentary that nowadays this designation includes those who may be perceived as “kosher” since he understands the Rambam as saying that the essential disqualification of the amei ha’aretz is that “they are resha’im (evildoers), that is, that they violate most of the commandments that come their way”. This is in accordance with the understanding of the Radbaz. However, in the mishna it does not mention that one who is not involved in one of these three things are “resh’aim”, rather, just that they are not “part of the settlement”. It is possible that the main disqualification is that they violate the prohibitions of theft and monetary matters (about which most testimony is given. This also fits with the principle that one who is suspected about a matter is not trusted to testify about it) This is also implied by the words of the Ritva: “derech eretz protects him from sin [because] since he benfits from his own effort he is distanced from theft and coveting and hatred of other creations”. It is possible that this is also implied by the Rambam’s Commentary on the Mishna where he explained that “not part of the settlement” means that he does to contribute to building the settlement, rather, he damages it. Resha’im who commit sins that are between man and God (not monetary law) do not necessarily damage the settlement. According to Rashi in Kiddushin (ibid.) as well, it is not discussing resha’im. [49] Rambam, Hilchot Metamei Mishkav UMoshav 11:1–2. [50] Chagiga 22a. Rabbi Tarfon transits this halacha in the name of Rabban Yochanan ben Zakkai (Tosefta Chagiga 3:11. And see the explanation of the “Chasdei David” of Rabbi David Pardo, ibid.). The Lechem Mishne holds that according to the Rambam “due to enmity” as a reason unto itself is insufficient, and only in tandem with another reason do we trust an am ha’aretz. Rav Kapach, in his commentary, agreed with this and added: “We are not lenient due to enmity alone, as if so, we would give up our uniqueness that causes enmity among the nations of the world. And God forbid that one should even think to give up on halachot and fundamental principles due to enmity. Better that those who make themselves into amei ha’aretz and thousands like them should be lost than we give up one detail of our faith (Hilchot Eidut 11:2). According to these commentators, it seems that the Rambam would not have permitted one to make a zimmun with an am ha’aretz, in opposition to the opinion of the Ba’alei HaTosafot (unless we say that he accepts the opinion of Rabbeinu Yitzchak, the elder, with regard to the nullified status of scholars), as is brought subsequently. [51] Ibid., s.v. keman. [52] See Hagahot Ashri, Gittin 1:10. Ketzot HaChoshen 68a. [53] Hullin 97a. [54] “We established that anyone who speaks innocently we believe him” (Gittin 28b). [55] Ibid., s.v. “samchinan”. [56]Hilchot Ma’achalot Assurot 15:[26](30). [57] Rav Kapach suggested that if one substitutes the letter bet for the peh in “kefeila” (cook) it reads “keveila”, which means tribe in Arabic; it would then mean one of the tribes (keveila) of the non-Jews (=Aramean). Ibid. [58] Notes of the GR”A, Yoreh De’a 98, note 8. Rav Kapach in his explanation there, and there he distinguished between a matter than can be revealed soon and a matter that can only be revealed after an extended period of time, such as with regard to testimony about a woman. As, with regards to a woman, a non-Jew is not trustworthy to testify, even with regard to a matter that can be revealed (despite the fact that for this reason we do believe a woman or a slave) unless he speaks innocently (Yevamot 121b). [59] Yevamot 39a. [60] Menachot 43a. [61] Rambam, Hilchot Ma’achalot Assurot 13:[9](10). [62] Orach Chayyim, 20:1. [63] Third volume, Yoreh De’a 72. [64] Commentary of Rav Kapach, Hilchot Shechita chapter 11, note 20. [65] Rambam, Hilchot Ma’achalot Assurot 8:7. [66] Rav Kapach, in the name of Me’il Shmuel, Hilchot Ma’achalot Assurot, ibid. note 11. “One does not sin on behalf on another” is relevant also to those disqualified from testimony (Bava Metzia 8b); and see Teshuvot Rabbeinu Yosef Chayim Sonnenfeld siman 76. [67] Pri Megadim, Orach Chayyim 328. [68] Brought by the Maggid Mishne, ibid. halacha [9] (10).According to this, a Jew who is accustomed to eating non-kosher meat is also not trustworthy to guard the meat. [69] Ibid. [70] Rambam, Hilchot Ma’achalot Assurot, 11:[22] (28). Ibid.8:7. [71] Radbaz, Hilchot Eidut 11:7. [72] See note 68. [73] Torat HaBayit HaAroch of the Rashba, Bayit 4, Sha’ar 2. [74] Ibid. [75]Rambam, Hilchot Ma’achalot Assurot 11:[23](26). [76] Avoda Zara 39b. [77] See Teshuvot HaRav Azriel Hildesheimer, Yoreh De’a 132. [78] Rav Kook writes similarly in Teshuvot Da’at Kohen, siman 60. [79] S.v. hameiniach (the second one). [80] Chullin 3a. [81] Ibid. 3b s.v. bodek. [82] Aseh Lecha Rav, IX:12. [83] Ibid. [84] Rambam, Hilchot Shechita 4:[11](14); Rav Samson Raphael Hirsch, teshuvot Shemesh Merapeh, p. 112. [85] As some agreed with the well-known opinion of the Ittur that a Shabbat transgressor is considered like a non-Jew only with regard to capital punishments (brought in Bet Yosef, Even HaEzer 44; Teshuvot Tashbetz III:43,47; Teshuvot Mayim Chayyim (Mashash) I Orach Chayyim 143. However, in Teshuvot Minchat Asher (I:10) he cites in the name of Teshuvot Yabia Omer (I Yoreh De’a siman 11) who cites in the name of the Teshuvot Mayim Amukim (siman 31) another version of the Ittur that a Shabbat transgressor is like a non-Jew only with regard to matters that have no sacrifice associated with it. He (Rav Asher Weiss) showed there why this is the correct version.) [86] Teshuvot Mayim Chayyim, ibid. [87] Teshuvot Ra’az VIII, Chiddushim on Yoreh De’a, siman 119. [88] Iggrot Moshe, Yoreh De’a I:47 [89] Rav Shlomo Korach, Teshuvot Teshuva KaHalacha, siman 46; Rav Eliyahu Shlesinger, Atkinu Se’udata siman 50. [90] Atkinu Se’udata ibid. [91] Aside from the opinion that prohibits their cooked foods just like the cooked food of non-Jews (Tiferet L’Moshe, cited in Pri To’ar 113:1). [92] Iggrot Moshe, Yoreh De’a I:54. [93] Ibid. II:43. [94] Despite the fact that he did not express his opinion about the main words of the Iggrot Moshe. [95] The Rabbis of “Beit Hillel” reached a similar conclusion in their decision which appears on their internet site under the heading: “Being a guest and eating in the house of one who does not keep kosher”. [96] It should be noted that if the halachic decisors of our generation establish an halachic presumption that people are generally not suspected of lying, given the values of our society, then the conclusion would be that there is no need to actual know the host in order to be permitted to eat in his home unless there is some specific issue that removes him from the general presumption. [97] It should be noted that the Rabbis of “Beit Hillel” permitted eating even at a host whom one does not know according to the requirements delineated above: “One who observes Torah and mitzvot who stays with one who does not, and the host is not suspected of trying to mislead the guest, and he knows him to be a trustworthy person- it is permissible to rely on his word if he says where he bought the food items, and the guest recognizes that place as a kosher establishment. It should be added that since the value of respecting a human being and his personal values is accepted nowadays even among the great majority who do not observe mitzvot, the matter is similar to one who is suspected about one issue, that one may rely on him that he fixed the item he brought him and is not exchanging it for something else, as he is not suspected with regard to theft. Here too, it seems possible to believe one who is not observant of mitzvot if he says that he purchased the food in a kosher establishment, as he is not suspected of trying to mislead, defraud, or lie. [98] Rav Chaim David HaLevi, Teshuvot Aseh Lecha Rav, VIII:47. |
