Chapter Nine-Part Two
Rules Governing The Kitnyot Custom
5.Rules Governing This Custom
People who adhere to the custom of not eating kitniyot may keep them in the house during Pesaĥ and derive benefit from them, for example, by lighting a lamp with kitniyot oil (Rema 453:1).
One who does not eat kitniyot on Pesaĥ may cook them for somebody who does, but it is recommended that he use some sort of reminder that he is not cooking for himself (Kaf Ha-ĥayim 453:17; Sidur Pesaĥ Ke-hilkhato 16:8). It is likewise permissible for a storeowner to sell kitniyot during Pesaĥ; however, if there could be wheat grains among the kitniyot that make up more than one sixtieth of the mixture, the storeowner may not sell the kitniyot, because this could cause customers to transgress the ĥametz prohibition. It would be better to sell such kitniyot along with the ĥametz.
If kitniyot fall into a cooked food, they should be removed, and whatever cannot be removed is batel in the majority of the dish. If, however, such a large amount of kitniyot falls in that they become the majority, the dish is considered a kitniyot dish and its consumption is forbidden (Rema 453:1; MB 8-9 ad loc.).
It is permissible for one who does not eat kitniyot on Pesaĥ to eat from and cook with utensils that belong to one who does eat kitniyot, provided that 24 hours have elapsed since kitniyot were last cooked in them. If food was cooked in such a utensil before 24 hours elapsed, the food remains kosher. 3
6.Kitniyot That Never Touched Water and Kitniyot Oils
We are not stricter with kitniyot than we are with the five cereal grains, so whatever is acceptable regarding these grains is kosher for kitniyot, too. Thus, kitniyot that have not come into contact with water, or that have come into contact with water but were not left for more than 18 minutes before being cooked (like matza), may be eaten. Some poskim are stringent in this respect, but most are lenient. 4
The poskim disagree about oils and whiskeys made from kitniyot. Those who rule leniently contend that the kitniyot prohibition does not apply to oil extracted from them, while those who rule stringently maintain that kitniyot oil has the same status as the kitniyot themselves. There is a middle position that asserts that if the kitniyot had been rinsed in water (for example, as part of the malting process) they become forbidden, and the oil extracted from them is prohibited. However, if they are ground and made into oil without having been moistened, they do not have the status of kitniyot. 5
Soybean, cottonseed, and canola (rapeseed) oils are not included in the prohibition. Many are stringent about soybean and canola oils, but whoever wishes to be lenient may be so. The widespread custom regarding cottonseed oil is to be lenient. 6
Lecithin extracted from rapeseed and added to chocolate is not included in the kitniyot prohibition, though some are stringent. 7
Chocolate and candy labeled "Kosher for Pesaĥ only for those who eat kitniyot" are technically permissible even for those who do not eat kitniyot, because the kitniyot in these products are added before Pesaĥ and are batel be-rov. In addition, these products generally contain kitniyot oils, which, according to several leading poskim, are not included in the custom to prohibit kitniyot. In practice, however, many people are stringent in this respect, and kosher certification agencies therefore label them as kosher for Pesaĥ only for those who eat kitniyot. 8
7.Extenuating Circumstances, the Sick, and Babies
Clearly, the Ashkenazic custom to refrain from kitniyot cannot be stricter than the prohibition against ĥametz itself. Therefore, in extenuating circumstances like drought or famine, leading halakhic authorities permitted eating kitniyot. In actuality, rabbis have often disagreed whether the need was pressing enough to permit eating kitniyot. Some rabbis were inclined to be lenient, others to be stringent, and still others to permit kitniyot to the poor alone, requiring the wealthy to buy other types of foods. On such matters, one must follow the ruling of the accepted local rabbinic authorities.
Some Aĥaronim write that when applying these leniencies to kitniyot, it is better first to permit kitniyot that do not resemble cereal grain, and only permit rice, millet, and buckwheat when there is no choice (Nishmat Adam). Additionally, some Aĥaronim state that when applying these leniencies, one should first scald the kitniyot in boiling water, since scalding prevents even cereal grains from becoming ĥametz. Even though in practice we do not permit scalding cereal grains on Pesaĥ, when it is necessary to be lenient with kitniyot, it is best to take precautions as much as possible (Ĥatam Sofer OĤ §122; MB 453:7). 9
One who is ill and needs to eat kitniyot may do so, even if he is not dangerously ill. For example, one may swallow flaxseed with water as a laxative. One may likewise feed rice to children who need it (Ĥayei Adam 127:6), though special utensils should be set aside for this. Anytime one acts leniently, the kitniyot should be thoroughly inspected to ensure that they contain no cereal grains.
^ 3.. Kitniyot in a mixture are batel in a simple majority (batel be-rov). Although the implication of Terumat Ha-deshen is that it is only batel be-shishim, the Aĥaronim rule that it is batel be-rov (SAH 453:5; Ĥayei Adam 127:1; Ĥavot Ya’ir §6; Eliya Rabba §4; and Kaf Ha-ĥayim 453:25, which also adds more sources). All of this only applies when one found that kitniyot had been mixed with permissible food, but it is forbidden to mix kitniyot with permissible food intentionally, contrary to the opinion of the Pri Ĥadash that one may intentionally add kitniyot to a mixture as long as they do not become the majority of the mixture. If one who does not eat kitniyot visits one who does eat kitniyot and there is nothing else for the guest to eat, he may, if absolutely necessary, eat the non-kitniyot food from a mixture containing kitniyot. For example, he may eat potatoes and zucchini from a dish containing kitniyot, even though the food he is eating absorbed some flavor from the kitniyot.
Even those who abstain from kitniyot are permitted to eat food cooked in a pot in which kitniyot had been cooked within the prior 24 hours, since the taste of the kitniyot is a very small minority. If 24 hours elapsed since the cooking of the kitniyot, one may cook food in the pot even le-khatĥila, since the taste of the kitniyot in the pot has already turned foul, and kitniyot are technically kosher for Pesaĥ anyway (Pri Ĥadash 496:24 and Responsa Maharalbaĥ §121). If one is in doubt whether or not 24 hours passed since the cooking of the kitniyot, he may still use the pot le-khatĥila because of the principle that most pots have not been used in the past 24 hours. See also Kaf Ha-ĥayim 453:27, which lists additional sources.
Some maintain that the prohibition of kitniyot begins at the onset of Pesaĥ (Sidur Pesaĥ Ke-hilkhato 16:10 n. 42), and in time of pressing need one can rely on this opinion. In practice, however, the mainstream opinion is that the custom of kitniyot corresponds to the prohibition of ĥametz. Thus, kitniyot are forbidden from the time that ĥametz is prohibited (Ĥok Yaakov 471:2; Responsa Maharsham 1:183; Shevet Ha-Levi 3, 31).
^ 4.. Most authorities are not stricter about kitniyot than about the cereal grains (SAH 453:5; Ĥayei Adam 127:1; Responsa Maharsham 1:183; Be’er Yitzĥak §11; Responsa Marĥeshet §3; and Rav Kook’s Oraĥ Mishpat §111). Some, however, are more stringent (Sho’el U-meishiv 1:1:175 and Ma’amar Mordechai §32). Their rationale is that no one would understand these distinctions since kitniyot do not become ĥametz. Additionally, they were concerned that making the kitniyot exactly like the cereal grains would mislead people to think they could use kitniyot to fulfill the mitzva of matza. As noted, though, most poskim are lenient, and in any dispute about a custom the halakha follows the lenient opinion.
The Rishonim also debate whether or not scalding works for kitniyot, since scalding any of the five cereal grains technically eliminates the possibility of its leavening, though the Ge’onim agree that no one knows how to scald the grains properly (SA 454:3). However, according to Or Zaru’a 2:256, since the prohibition of kitniyot is just a custom, scalding the kitniyot is effective and permits them. Mordechai rules stringently, and Rabbeinu Peretz’s glosses to Smak §222 notes the lenient opinion but rules stringently.
^ 5.. Terumat Ha-deshen §113 explains that oil extracted from kitniyot is prohibited because the kitniyot are first malted. This is also the opinion of Rema 453:1. The implication of Terumat Ha-deshen is that if the kitniyot were not malted, their oil would be permitted. R. Yitzĥak Elĥanan Spektor in Responsa Be’er Yitzĥak §11 rules even more leniently, explaining that if the kitniyot were checked to ensure that no grain seeds were mixed in, the oil extracted from them is permitted, since the act of checking proves that the person is familiar with the prohibition. Similarly, Responsa Emek Halakha §134 permits whiskey distilled from kitniyot, as the prohibition applies to kitniyot themselves, not the liquid extracted from them.
Conversely, other Aĥaronim maintain that oil extracted from kitniyot is prohibited even when the kitniyot are not malted (Nishmat Adam §33 and Avnei Nezer OĤ §373). However, Terumat Ha-deshen and Rema imply that such oil is permissible. This raises an apparent difficulty, since the oil will eventually be mixed with water, a process that would be forbidden to apply to grain. Thus, according to these authorities, the custom is to prohibit kitniyot in their seed and flour state, but not in their oil state. One need not be concerned that grain kernels got mixed in with the kitniyot, which would turn to ĥametz when the extracted oil is mixed with water, since any oil extracted from the grain is batel be-shishim and is not ĥozer ve-ne’or on Pesaĥ (SA 447:4). Additionally, it appears that even liquid that is exuded by grain does not become ĥametz, as explained in Oraĥ Mishpat §§111-112 and Responsa Marĥeshet §3. Tzemaĥ Tzedek permits this for poor people, provided that the kitniyot did not come into contact with water while in seed form.
Rav Kook has a well-known ruling (Oraĥ Mishpat 108-114) in which he broadly permitted sesame oil since not only are the seeds not malted, but the oil is also fried, which would prevent cereal grain from becoming ĥametz and is certainly enough to alleviate the problem of kitniyot. This idea is echoed by Avnei Nezer OĤ §533 with regard to rapeseed oil (this responsum appeared in 5458, 11 years before Rav Kook’s responsum). The Hasidic-Ashkenazic rabbinical court in Jerusalem vociferously opposed Rav Kook without any regard for the honor of Torah or of all of the poskim who had previously ruled even more leniently than Rav Kook on this matter. Rav Kook responded to them sharply, with erudition, and with strong proofs. As part of his response, he wrote (p. 123): "In truth, the path of my righteous and ingenious mentors, may their merit protect us and all of Israel, whom I merited to serve, was not to incline toward stringency when it was possible to be lenient, especially regarding issues without a strong basis in the words of the talmudic Sages. It is sufficient that we do not budge, God forbid, from the customs we accepted at the guidance of our rabbis, the poskim. But as for the details that can be argued one way or the other, certainly one who inclines toward a lenient ruling in an effort to be wise and benevolent is praiseworthy, as long as his words are based on the profundity of halakha and sound reasoning…" Furthermore, one who adds prohibitions to a prohibition that is not rooted in the law may violate a prohibition implied by a positive commandment ("lav ha-ba mi-khlal aseh") according to Rashi’s comments in the first chapter of Beitza. As Rav Kook wrote (p. 126): "That which the Talmud often states, that we do not make decrees on top of other decrees, is derived from the following verse: ‘You shall safeguard my observances’ [‘u-shmartem et mishmarti’ – Vayikra 18:30]: make safeguards, i.e., enact decrees, for my observances, that is, for the Torah. But do not make safeguards for safeguards; do not make decrees upon decrees." Against the claim that we must be increasingly stringent nowadays, Rav Kook writes: "I know the character of our contemporaries well: it is precisely when they see that everything that can be permitted based on the profundity of halakha is permitted, they will understand that when we do not permit it is based on the truth of Torah law. Consequently, many people will adhere to the Torah and heed the words of the Sages, God willing. On the other hand, when they discover that there are things that can be permitted according to the letter of the law, but the rabbis were not sensitive to the travails and hardships of the Jewish people and leave these matters in their prohibited state, it will cause a terrible desecration of God’s name, Heaven forbid. Ultimately, there will be an increase of outbursts saying about core elements of the Torah that if the rabbis want to permit it, they can; thus, the law will be perverted" (p. 126).
^ 6.. Soybean oil is produced without moistening the soybeans, so according to Rav Kook and most poskim it is not forbidden. Furthermore, it is questionable whether soybeans were even included in the prohibition of kitniyot, since they did not arrive in Europe until about 100 years ago. Igrot Moshe OĤ 3:63 writes that only what has customarily been accepted as prohibited is included in the custom. This is also the opinion of R. Dov Lior, the rabbi and head of the rabbinical court in Kiryat Arba.
Regarding cottonseed oil, Mikra’ei Kodesh 2:60 is lenient, citing a ruling attributed to R. Ĥayim Soloveitchik of Brisk. Sidur Pesaĥ Ke-hilkhato (16:4) rules leniently in the name of R. Moshe Feinstein. However, Minĥat Ĥinukh 3:138 is stringent.
Peanut Oil: We learned in section 4 above that in Greater Lithuania the custom was to eat peanuts, as per Igrot Moshe OĤ 3:63, since only items that are known not to have been eaten because of kitniyot are prohibited. Peanuts, which were discovered later on, were not included in the original prohibition. On the other hand, Mikra’ei Kodesh 2:60 and Ĥelkat Yaakov §97 prohibit peanuts but permit peanut oil. This is also the opinion of Melamed Le-ho’il OĤ §88. Seridei Esh 2:37 also echoes this idea, and quotes that Avnei Nezer OĤ §383 prohibited peanut oil, as did Minĥat Elazar. Practically, if one is unaware of a family custom to be stringent, he may be lenient, since this is an unclear custom.
^ 7.. The Badatz is strict about lecithin derived from rapeseed. Halakhically there is nothing wrong with this substance; however, there are many uncertainties that mitigate toward leniency. Firstly, rapeseed is not a legume (the technical meaning of kitniyot), but a member of the Brassicaceae family of crucifers, whose fruit grips the stalk and whose seeds grow in pods, much like the mustard plant. Oil is extracted from these seeds. According to Igrot Moshe OĤ 3:63, we do not forbid anything that was not explicitly prohibited by custom. Additionally, it is debatable whether the status of kitniyot can be applied to the seeds of a plant when it is clear that the plant itself is not kitniyot. However, according to Avnei Nezer OĤ §373, rapeseed oil is considered kitniyot, just like mustard (although even according to Avnei Nezer, if one boiled the seeds they would be permissible, as explained in §533). Moreover, we already saw that there are opinions that permit oil produced from any type of kitniyot. According to Maharsham 1:183, rapeseed oil is kosher for Pesaĥ since the oil is extracted without malting the seeds, and we have seen that most poskim are lenient in these situations, akin to the case of sesame oil. Finally, the oil is batel be-rov before Pesaĥ. According to Be’er Yitzĥak, any oil that was added to a mixture before Pesaĥ is batel. Ultimately, when there are so many uncertainties regarding a custom, we rule leniently. This is the ruling of R. Mordechai Eliyahu, as cited in Responsa Ama Devar 1:62.
^ 8.. According to Rema 453:1 and MB 9 ad loc., even if kitniyot were mixed in on Pesaĥ, they are batel be-rov, although clearly one may not do so le-khatĥila. In this case, the mixing took place before Pesaĥ, and not for the purpose of nullifying the prohibited ingredients in the majority of permissible ingredients, since they may be eaten according to Sephardic custom. Therefore, since they were batel be-rov before Pesaĥ, the mixture may be eaten on Pesaĥ. Additionally, R. Yitzĥak Elĥanan Spektor writes in Be’er Yitzĥak §11 (quoted in n. 4 above) that the prohibition of kitniyot does not apply to kitniyot oil that was checked before Pesaĥ. This is the opinion of R. Lior and R. Rabinovitch.
R. Lior also rules that string beans and fava beans in their pods are kosher for Pesaĥ, since in this state they are considered vegetables and not kitniyot. They were never included in the original prohibition since all of the concerns that were mentioned as the reason for the custom of kitniyot never applied to them.
^ 9.. Ĥayei Adam (127:1) permits eating kitniyot in truly extenuating circumstances, like if one has nothing else to eat. See also Nishmat Adam §20 and Mor U-ketzi’a (which assert that ideally the custom of kitniyot should be abolished altogether). Ha-mo’adim Be-halakha’s chapter on kitniyot states that Teshuva Me-ahava, Ma’amar Mordechai, and Mahariz Enzil maintain that one may not eat kitniyot even in an extreme situation. Conversely, Maharam Padua of Brisk (§48) permits kitniyot in extenuating circumstances. Divrei Malkiel 1:28 and Sho’el U-meishiv 2:4:158 rule leniently for poor people only. Ĥatam Sofer OĤ §122 does not oppose the lenient authorities but notes that they should require scalding the kitniyot before eating. Nishmat Adam §20 states that one should first permit kitniyot that do not resemble cereal grain, and only as a last option permit those that resemble grain. MB states that one may certainly be lenient in extenuating circumstances and cites Ĥatam Sofer and Ĥayei Adam that scalding is required before eating. AHS 453:5 states: "They explicitly accepted that if there would be famine and the poor would be starving for food, all of the local sages, led by the chief rabbi, would permit kitniyot on that Pesaĥ."