Introduction

Owners of meat restaurants face a dilemma during the Nine Days. If they refuse to serve meat items during this time, marginally observant and non observant Jewish customers will likely choose to eat non-kosher meat elsewhere. The question is whether halacha permits store owners to serve meat during the Nine Days to help prevent others from eating non-kosher food. We will base our discussion on a teshuva of Rav Ovadia Yosef (Teshuvot Yechave Daat 3:38) that addresses this issue.

Understanding the Custom

Halachic authorities view the custom of most Jews (except Yemenites) to refrain from eating meat during the Nine Days very seriously. The Shulchan Aruch (O.C. 551:11) writes that one who violates this custom “will be bitten by a snake,” a term used by halachic authorities to emphasize the importance of a particular custom and that it should not be lightly dismissed. In fact, the Aruch Hashulchan (O.C. 551:23) deplores the practice of some in his time (late 19th-century Lithuania) to disregard this custom. He writes that since our ancestors have accepted this practice, it has become a “communal vow,” which is a Biblical obligation to uphold. He concludes that God will severely punish those who fail to observe this custom.

There are at least two explanations for this custom (see the Beit Yosef O.C. 551 s.v. Katav Hakolbo). First, the Gemara (Pesachim 109a) states that there cannot be a festive occasion unless meat is consumed. Thus, since the Nine Days are a time of mourning, we should avoid meat, as it is associated with joy. Another explanation is based on the Gemara in Bava Batra (60b) that records that a proposal was made to abstain from meat entirely as an expression of mourning for the destruction of the Beit Hamikdash. Chazal rejected this proposal because they felt that it was an edict that the majority of the community cannot tolerate. We see, however, from this passage in the Gemara that abstaining from meat is a form of mourning for the destruction of the Temple.

The Rama (O.C. 551:9), though, rules that a sick person may eat meat during the Nine Days. Despite the seriousness of this practice, it is still only a custom and is not to be treated with the same severity as a rabbinical obligation. In fact, poskim assume that our forebears did not accept the observance of customs in case of great need. A competent halachic authority should be consulted to determine if a situation constitutes a great need to the extent that one may eat meat during the Nine Days.

Lifnei Iveir Lo Titein Michshol

Accordingly, it is forbidden to serve meat to a healthy individual who is a guest in one’s home during the Nine Days. However, the storeowner is in a somewhat different situation. There are many alternatives to his restaurant, and the non-observant Jew will eat at the non-kosher establishment if the kosher restaurant does not serve meat during the Nine Days. The Gemara (Avoda Zara 6b) states that the prohibition of lifnei iver applies only in a situation of “trei avri d’nahara,” which literally means “two sides of the river.” This means that the prohibition applies only when one facilitates the performance of a sin that would have otherwise been difficult or impossible to perform. For example, if one brings wine to a nazirite from one side of the river to another side of the river, he has violated the Torah-level prohibition of lifnei iver. Accordingly, the restaurateur does not violate the Torah-level prohibition of lifnei iver since there are many other restaurants available to serve meat.

The Rishonim debate, though, whether there is a rabbinical prohibition to assist someone to sin in a situation where there are many others available to assist in the performance of the sin. Tosafot in Avoda Zara 6b (s.v. Minayin) imply that there is no prohibition if it is not a situation of trei avri d’nahara. On the other hand, Tosafot in Shabbat 3a (s.v. Bava Dreisha) assert that there is a rabbinical prohibition to aid a sinner even if it is not a situation of trei avri d’nahara. The Rama (Yoreh Deah 151:1) cites both opinions and concludes that common practice is to follow the lenient opinion but it is best to abide by the stricter opinion.

Thus, a restaurateur has a halachic basis to serve meat during the Nine Days, as common practice is to rely on the lenient opinion of Tosafot that appears in Avoda Zara 6b. In Israel, however, the situation is a bit more complicated. In Israel, Jews own the alternative establishments that serve meat during the Nine Days. In such a situation, argues the Mishneh Lamelech (commenting on Rambam’s Hilchot Malveh Veloveh 4:2), the Torah-level prohibition of lifnei iver applies even if it is not a trei avri d’nahara situation. The Acharonim vigorously debate whether the Mishneh Lamelech is correct (for a summary and analysis of the opinions, see Rav Yosef Shalom Eliashiv’s Kovetz Teshuvot number 20). It appears that the general consensus is that one should abide by the strict ruling of the Mishneh Lamelech.

Selecting the Less-Severe Transgression: Rav Akiva Eiger And Israeli Chief Rabbinate

There might be another reason to permit serving meat during the Nine Days based on a controversial ruling of Rav Akiva Eiger. Rav Akiva Eiger (commenting to Shulchan Aruch Yoreh Deah 181:6) suggests that it is permissible for a woman to shave a man with a razor if the man would have otherwise shaved himself with the razor. This is because if a man shaves himself with a razor he violates two prohibitions: the prohibition to shave with a razor and the prohibition to be shaved with a razor (see Makkot 20b and Shulchan Aruch Y. D. 181:4). However, a woman is not prohibited to shave with a razor (see Kiddushin 29a). Thus, when a woman shaves a man with a razor, the man violates only the prohibition to be shaved. This ruling is quite relevant for female nurses who are required to shave male patients.

The logic for Rav Akiva Eiger is that the essence of the prohibition of lifnei iver is that one should not offer “bad advice” to another. Causing another to sin is certainly offering bad advice. However, if by one’s actions one minimizes the severity of the sin that would have been violated in any event, then he might indeed be offering good advice rather than bad advice.

The Israel Chief Rabbinate permits meat restaurants to serve meat during the Nine Days because of a similar rationale. They are aware of the fact that in Israel today a very significant percentage of the population fit the description of the Gemara (Chullin 4a) that “lo shvak heteirah ve’achil issura,” that they will not eat non-kosher if kosher food is readily available. Thus, they reason that it is certainly preferable that these people violate the minhag to abstain from meat during the Nine Days rather than violate the Torah prohibition to eat non-kosher meat. Thus, the restaurateur is saving his customer from violating a severe transgression by serving him meat during the Nine Days.

Conclusion: Rav Ovadia Yosef

Although many authorities do not accept the approach of Rav Akiva Eiger (see the sources cited in Rav Eliezer Waldenberg’s Teshuvot Tzitz Eliezer 15:19), Rav Ovadia Yosef endorses the approach of the Israeli Chief Rabbinate. He notes that one may rule leniently because we are dealing with the question of the observance of a custom, and the fact that some authorities reject the aforementioned stringent approach of the Mishneh Lamelech. Although the Israeli Chief Rabbinate’s lenient approach is somewhat debatable, it certainly is an expression of love and concern for the spiritual health of all of Am Yisrael.

Rabbi Haim Jachter is the spiritual leader of Congregation Shaarei Orah, the Sephardic Congregation of Teaneck. He also serves as a rebbe at Torah Academy of Bergen County and a dayan on the Beth Din of Elizabeth.