Nazir 37a
You arrive, after a long drive, to your rented vacation home in Cape Cod. It is midnight. You grope under the garden rocks for the front door key, which has been hidden there by the previous tenants who vacated the vacation house two days ago. The kids, who have been asleep in the car the last few hours of the journey, wake up. They are tired and hungry. Dad carries them into the house and then runs out again into the dark to start unpacking the car.
Meanwhile, inside, Mum is hurriedly putting together a meal for the crying children. Mum opens the kitchen cupboards and pulls out some pots and pans that have been supplied by the non-Jewish homeowner for use by the summer vacation tenants. The previous tenant, who used them, had scrubbed them clean before vacating the premises.
Stumbling in from the dark for the 10th time, laden with cases, tennis rackets and mounds of diapers, Dad sees the kids sitting around the table about to dig into dinner that Mum has just cooked in the pots and pans. “Wait,” says Dad to himself. “These pots and pans have not been kashered.”
Kashering is the halachically prescribed way of expelling the flavor of forbidden food, such as non-kosher food, and restoring them for use.
Who knows what non-kosher, treifah, food was cooked in them by the previous tenant? Must Dad tell the kids to stop eating and throw away the food?
The concern, of course, is that the pots have absorbed the taste of non-kosher food and this forbidden taste has in turn been absorbed by the kosher food cooked in the non-kashered pot. This taste might render the kosher food unfit for use. In Halacha, taste is everything, ta’am ke’ikar. The taste of treifah food is treated like the treifah food itself and is equally forbidden.
Not so fast, Dad. Before pulling the food off the table, let’s think this through.
1. There is a rule in Halacha called “noten ta’am lifgam, mutar.” This means that if the treifah flavor left in the pot will impart a bad taste to the kosher food cooked therein, then the treifah flavor in the pot can be ignored, and the kosher food may be eaten even though it has been contaminated with the flavor of the treifah food. The reason for this is that food that has a spoiled or rancid taste is not considered by the Halacha to be food at all.
2. Now, there is an additional rule that applies to a pot or other cooking utensil in which treifah food was cooked more than 24 hours prior to the time kosher food was cooked in it. Such a pot, in which treifah food has been cooked more than 24 hours ago, is called in Halacha, a pot that is “eina bat yomah.” A pot which is eina bat yomah, will impart a rancid taste to the kosher food cooked in it and will therefore not render the food prohibited, treifah, provided that the pot was thoroughly scrubbed down before the kosher food was cooked in it.
3. In addition, there is a halachic presumption that stam klei oveid kochavim he’im bechezkat she’einam benei yoman. This means that in the absence of any evidence to the contrary, there is a legal presumption that all cooking utensils of non-Jews have not been used for 24 hours.
The Halachic justification for relying on this presumption is that there is a double doubt, a sfeik sfeika involved. First, there is the doubt whether the non-Jew has used the utensils within the past 24 hours at all. Second, there is a doubt whether the residual flavor of the food that non-Jew may have cooked would have spoiled the flavor of the kosher food now being cooked. Whenever a double doubt is present, the rabbis take a more lenient approach.
For all of the above reasons, when confronted with the above situation after it has already occurred, bedi’avad, and provided all of the above conditions are present, the Halacha permits one to eat the food cooked in the non-kashered pot.
It is important to note that this halachic concession that permits the use of the food cooked in the cooking utensils of a non-Jew which are einam benei yoman, is only bedi’avad, namely after the thing already happened. The concession does not apply l’chatchilah, at the outset, even if the cooking utensils have not been used during the past 24 hours. This is because the rabbis were concerned that if they would permit one at the outset, to cook in utensils of non-Jews that had not been used for 24 hours, one might come to cook in such utensils that had been used for non-kosher food within the past 24 hours. Accordingly, one should take care to kasher the pot at the earliest opportunity before using it again.
Furthermore, this halachic concession of noten ta’am lifgam does not apply in the event that sharp foods were cooked in those non-Jewish pots. This is because sharp foods do not spoil as quickly as bland foods and most likely have not imparted a rancid taste to the kosher food. Food considered sharp for this purpose include onions, garlic, radish, horseradish and salt in excessive amounts.
It is also important to remember that the halachic presumption that stam klei oved kochavim he’im bechezkat shei’nam benei yoman is only a presumption. It is not an absolute rule. It can be refuted by facts known to exist.
Accordingly, the presumption that stam klei oved kochavim he’im bechezkat shei’nam benei yoman would not apply to the cooking utensils in a non-kosher restaurant where one knows that the non-Jewish utensils are constantly being used back in the kitchen to cook non-kosher food.
Raphael Grunfeld, a partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, received Semichah in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Harav Haga’on Dovid Feinstein, Zt”l. This article is an extract from Raphael’s book “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerai’m” available for purchase at www.amazon.com/dp/057816731X or by e-mailing Raphael at [email protected].
