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Insights From The Institute Winter09.htm

Insights from the Institute
Shailos from the Institute of Halacha
Rabbi Mordechai Frankel, Director of the Institute of Halacha

Q:       Can a child who is under bar mitzvah or bas mitzvah check eggs for blood spots or check lettuce for insects?

A:      The Terumas Hadeshen1 states that tevilas keilim can be performed by a koton, as long as a godol is present to ascertain that the tevila was performed correctly. However, a koton who claims to have performed tevilah is not relied upon without verification by a godol. The Terumas Hadeshen explains that the koton is not to be relied upon because tevilas keilim is a d'oraisa obligation, and a koton is not believed to have performed an action which is a chiyuv d’oraisa. The Shulchan Aruch and Rema pasken in accordance with the Terumas Hadeshen.2

Reb Akiva Eiger3 quotes the Pri Chadash4 as stating that only the tevilah of metal keilim is a d’oraisa obligation, but the tevilah of glass keilim is a d'rabbonon obligation. Reb Akiva Eiger, therefore, argues that a koton would be believed to have toveled a glass utensil. The ruling of the Terumas Hadeshen that a koton is not believed is limited to statements that the koton makes concerning d’oraisa obligations, but a koton would be believed regarding a d’rabbonon obligation.

However, Reb Akiva Eiger adds that there is an opinion in Tosefos5 which states that, even regarding d’rabbonon obligations, a koton is believed only on issues which affect the koton himself. According to this viewpoint, if the koton was designated as a shaliach to perform an action on behalf of someone else, he is not believed to have carried it out, and a koton could not be a shaliach to perform tevilas keilim.

A similar issue to this is whether a koton can be relied upon to perform bedikas chometz. Before Pesach, a person is obligated to verbally be mevatel all chometz that he owns. In addition to this, there is a d’rabbonon obligation of bedikas chometz in order to verify that he has no chometz in his possession. The Shulchan Aruch6 paskens that a koton is believed to have performed bedikas chometz. As stated above, a koton is believed to have performed an action which is a d’rabbonon obligation and is, therefore, believed to have performed bedikas chometz. The Shulchan Aruch adds that the koton is believed only if he is old enough to understand what checking for chometz involves and there is confidence that he will do a thorough job.

The Shaar HaTziyun7 cites the viewpoint of the Tosefos mentioned above, that the koton is believed only regarding chometz in a house in which he lives, but cannot be a shaliach for bedikas chometz in someone else’s house. However, the Shaar HaTziyun concludes that the consensus of the Poskim is that a koton is believed even to be a shaliach and to have performed bedikas chometz on behalf of another person.

As previously mentioned, the Shulchan Aruch paskens that a koton is believed regarding bedikas chometz. However, the Mishna Berura8 states that, lechatchilah, one should not rely upon a koton. He explains that checking for chometz is a laborious activity, and there is the concern that a koton may not carry it out diligently.

It is customary to check eggs for blood spots before consuming them.9 However, this is not a d’oraisa obligation,10 and is not a laborious activity. Therefore, a koton may check eggs for bloodspots, as long as he is old enough to understand what is involved. There is also a requirement for a person to check vegetables for insects before consumption. If the majority of a particular type of vegetable has insects, there is a Torah obligation to check the vegetable,11 and a koton would not be believed to have done so. If a significant minority of this type of vegetable has insects, there is a d’rabbonon obligation to check the vegetable, and a koton would be believed to have done so as long as he is old enough to understand what is involved and there is confidence that he will do a thorough job. However, checking for insects would be classified as a laborious activity.12 For this reason, lechatchilah, one should not allow a koton to check vegetables for insects.13

Q:       My father has a full-time nurse who lives with him and takes care of him.  When I hired her, I told her that under no circumstances may she cook any food for my father.  However, I went to visit this morning and saw that she had baked him a potato.   What is the status of the utensils that she used?

A:      In order to discourage intermarriage, Chazal established the prohibition of bishul akum.14 Food which was cooked by an akum without the involvement of a Jew may not be eaten, and the utensils which were used for the cooking must be kashered.15  However, this prohibition does not apply to all food cooked by an akum.  In fact, there are five potential reasons to be lenient:

  1. Some Rishonim suggest that the concern of intermarriage applies only when the Jew goes to the house of the akum, but not when the akum comes to the house of the Jew.16 According to this opinion, the prohibition of bishul akum applies only to food cooked in the house of an akum, but not food which the akum cooks in a Jew’s house.  However, the majority of Rishonim reject this approach and state that the prohibition of bishul akum applies equally in the house of a Jew.17  The Shulchan Aruch accepts this view and unequivocally states  that bishul akum applies even in the house of a Jew.18
  2. The Rema states that there is a further reason to be lenient when an akum cooks in the house of a Jew.  The prohibition of bishul akum does not apply when a Jew adds to the fire or stirs the flame.19  The Rema states that one can assume that a long-lasting fire in a Jew’s house will certainly be tended to by the Jew at some point in time.20  However, this last argument was relevant in the time of the Rema only, when it was common to leave a kitchen fire burning for days at a time; this would not apply in modern times.21
  3. The Ramban writes that the prohibition does not apply to food cooked by the shifcha or eved of a Jew.22  He explains that the prohibition of bishul akum was instituted due to the concern that the Jew may befriend the akum, which may lead to intermarriage.  There is no need to forbid the bishul of an eved and shifcha, as we know that the Jew would not befriend them.  However, the Rashba states that one should not rely on this opinion even in a bedieved situation, as Chazal made a comprehensive prohibition without exceptions.23  The Shulchan Aruch codifies both of these points of view and states that some allow food cooked by an eved or shifcha, whereas others do not.  The Rema paskens that bedieved one may be lenient and eat the food if it has already been cooked.24  The Shach wonders how the Rema can be lenient even bedieved, as an akum who works in the house of a Jew nowadays would not be categorized as an eved or shifcha.  The Shach offers three approaches: (i) The Rema is referring to an eved or shifcha only, and would agree that one cannot be lenient nowadays as we no longer have avodim or shifchos; (ii) The Rema is primarily relying on his other reason (number 2 above) to be lenient, and would agree that this reason alone is not sufficient; (iii)  The Rema is relying on the opinion of an unnamed Rishon cited by the Rashba,25 that the concern of intermarriage is limited to a situation where the akum cooks willingly for the Jew, not when he is being paid to do so.  According to this opinion, the prohibition of bishul akum does not apply to any paid worker, even if he is not an eved or shifcha.  Even though the Rashba himself rejects this approach, the Rema relies on this bedieved.26
    The Gr”a accepts the third approach of the Shach, and explains that in this situation there are two reasons to be lenient.  Firstly, there are Rishonim who state that the prohibition does not apply at all in the house of the Jew.  Secondly, there is an opinion that the prohibition does not apply when the akum is performing paid labor.  Even though we do not accept either of these arguments, the Rema feels that we can rely on both of these opinions to be lenient bedieved.27
    As mentioned above, the Shach has three ways of explaining the Rema.  According to the first and second approaches, the leniency of the Rema would not apply in present times. However, according to the third approach the leniency would still apply.  Due to this uncertainty, the Chochmas Adam paskens that one should rely on this only in a situation of substantial financial loss.28
    The Rema and Shach are discussing a situation where the worker did what he was instructed to do.  In the case of the nurse who baked a potato, she cooked the food after being instructed not to do so.  It would seem that if we are not concerned that a Jew will befriend a worker who follows instructions, we similarly need not be concerned that he will befriend a worker who does not follow instructions.  If so, we could apply the psak of the Chochmas Odom to the case of the nurse who baked a potato.
    As mentioned above, the Chochmas Odom is lenient only in a situation of substantial financial loss. Since the utensils used by the nurse can be kashered, there is no financial loss involved.  Utensils made from earthenware generally cannot be kashered.  However, utensils which need kashering due to bishul akum are an exception to that rule, and can be kashered with hagala (immersion in boiling water) three times.29  Therefore, the leniency of the Rema does not apply in this case.

  4. There are further limitations to the prohibition of bishul akum.  It does not apply to food which is eaten raw.30  Since people would eat such food without cooking it, the bishul of the akum is not significant, and Chazal are not concerned that it may lead to friendship between the Jew and akum.  However, this leniency would not apply to a potato, which is not normally eaten raw.
  5. A further limitation to the prohibition of bishul akum is that it applies only to foods which are oleh al shulchan malochim (served at prestigious meals).31  Here too, the cooking by an akum of food which is not oleh al shulchan malochim is not deemed significant, and Chazal are not concerned that it may lead to friendship between the Jew and akum.  The Chochmas Adam states that potatoes are considered oleh al shulchan malochim.32  However, the Aruch HaShulchan states that circumstances have changed, and plain potatoes are no longer considered oleh al shulchan malochim; they are eaten only by poor people who cannot afford better food.33  It would seem that circumstances have changed once again, as at the present time baked potatoes are served even at prestigious meals; therefore, it would once again be considered oleh al shulchan malochim.   If so, the prohibition of bishul akum would apply to a baked potato.

In conclusion, in the situation of the nurse who baked a potato, none of the five possible reasons for leniency would apply.  Therefore, the utensils which came into contact with the hot potato should all be kashered.34  One should also try to ascertain whether or not the nurse has used any additional utensils to cook any other food.  If she has done so, there may be a further issue of bishul akum, depending upon which foods she cooked.


Halachic queries regarding all topics may be presented to The Institute of Halacha at the Star-K by calling 410-484-4110 ext. 238 or emailing halachah@star-k.org.

1.תרומת הדשן סי'רנז הובא בב"י יו"ד סו"ס קכ 

2.שו"ע ורמ"א יו"ד סי' קכ סעי' טו 

3.חי' רע"א שם   

4.פר"ח שם ס"ק ג

5.תוס' עירובין דף לא ע"ב ד"ה כאן 

6.שו"ע או"ח סי' תלז סעי' ד

7.שעה"צ שם ס"ק יט 

8.מ"ב סי' תלב ס"ק ח

9.רמ"א יו"ד סי' סו סעי' ח 

10.רמ"א שם וכש"כ בביצים שלנו דספנא מארעא, ועי' בשו"ת אג"מ יו"ד ח"א סי' לו שלכתחלה ראוי לבדוק אף ביצים שלנו 

11.עי' בערוך השלחן סי' פד סעי' עב 

12.עי' בש"ך סי' פד ס"ק לה ובערוך השלחן שם סעי' פ-פב

13.וכן פסק ע"פ דרכו בשו"ת בית שלמה ח"א יו"ד סי' קנו

14.רמב"ם פי"ז מהל' מאכלות אסורות וכ"כ רש"י ע"ז דף לה ע"ב, אמנם ברש"י שם דף לח ע"א כתב טעם אחר שמא יאכלנו דבר טמא, ועי' בתוס' שם ד"ה אלא ובב"ח יו"ד ר"ס קיב   

15.עי' בשו"ע יו"ד סי' קיג 

16.ר' אברהם ב"ר דוד הובא בתוס' ע"ז דף לח ע"א ד"ה אלא    

17.ר' תם הובא בתוס' שם, ובב"י ס' קיג כתב שכן דעת הפוסקים

18.שו"ע שם סעי' א 

19.רמ"א שם סעי' ז

20.רמ"א שם סעי' ד 

21.פשוט

22.שו"ת הרשב"א המיוחסות להרמב"ן סי' רפד, ונדפס ג"כ בכתבי הרמב"ן ח"א עמ' שפא 

23.שו"ת הרשב"א ח"א סי' סח ונכפל במיוחסות להרמב"ן סי' קמט

24.שו"ע ורמ"א שם סעי' ד  

25.שו"ת הרשב"א שם

26.ש"ך שם ס"ק זו

27.ביאור הגר"א שם ס"ק י וס"ק יא 

28.חכמת אדם כלל סו דין ז שבמקום הפסד מרובה יש להתיר  

29.שו"ע שם סעי' טז

30.שו"ע שם סעי' א 

31.שו"ע שם

32..חכמת אדם כלל סו דין ד 

33.ערוך השלחן סי' קיג סעי' יח

34.וכן שמעתי ממו"ר ר' היינעמאן שליט"א

 

 



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