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Beit Midrash שבת ומועדים עשרת ימי תשובה

Pas Yisroel and the Aseres Yemei Teshuvah

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Question #1: Aseres Yemei Teshuvah
"Must I use pas Yisroel during the Aseres Yemei Teshuvah?"

Question #2: Friendly Baker
"A group of neighbors, both Jewish and non-Jewish, are getting together to make a surprise birthday party for one of the non-Jewish people on the block who has been incredibly helpful to us all. Since there are some frum people on the block, the party will be strictly kosher. One of the non-Jewish neighbors is a baker by trade and will be baking everything in one of the kosher houses. Is there any problem with his doing this, when the frum people are supplying all the ingredients?"

Question #3: Why Now?
Why are we discussing this topic before Rosh Hashanah?

Background
Pas Yisroel means bread baked by a Jew or with Jewish participation. The Mishnah teaches: The following items of a non-Jew are forbidden to be eaten, but are permitted for benefit: milk milked by a non-Jew without a Jew supervising; their bread and their oil, although Rebbe and his beis din permitted the oil; and cooked items (Avodah Zarah 35b). Thus, we see that Chazal prohibited consumption of bread made by gentiles. This bread, commonly called pas akum, means bread made by a non-Jew, without Jewish involvement. Yet, we will soon see that there are many unusual and confusing rules governing when this bread is prohibited and when not. Aside from our need to know how to apply these laws, understanding the reasons will allow us to appreciate several other areas of both halachah and hashkafah, including how a takanas Chazal is made. Furthermore, we need to know how to apply these laws during the aseres yemei teshuvah, when they have special significance. So, let us roll up our sleeves to get deep into this doughy topic!

Takanas Chachamim
When Chazal implement a takanah prohibiting an item or activity, it is binding on all Jews and remains so, permanently. This means that, as a general rule, a takanah cannot later be annulled. However, there are some limited instances in which something prohibited because of a takanah can later be permitted.

There are two ways that a takanas chachamim may be rescinded, both of which require the decision of a major beis din of klal Yisroel with the power of the Sanhedrin. One instance is when the rescinding beis din consists of greater Torah scholars who have a larger following of disciples than did the original beis din that created the takanah. However, even this method of rescinding an earlier takanah does not apply to a list of takanos created by the disciples of Hillel and Shammai. To quote the Gemara, no later beis din could rescind these takanos, which are called The Eighteen Matters. (The details of this topic we will leave for a different time.)

The second situation in which a takanas chachamim may be rescinded is when the original takanah had not been accepted – meaning that it was not kept properly by the Jewish people. In the latter situation, since the takanah was not observed, the major beis din of klal Yisroel has the ability to withdraw the original takanah.

Basic background
With this initial background, we can now examine the history and the halachah of the takanah of pas akum. In the days of the disciples of Hillel and Shammai, when the Second Beis Hamikdash still stood, Chazal forbade eating pas akum – even when there are no kashrus concerns about the ingredients or the equipment used to prepare the bread (Avodah Zarah 36a). The reason for this enactment was to discourage social interaction that can lead to intermarriage.

We find a dispute among the rishonim whether the prohibition was limited to bread that gentiles baked or whether it included even dough prepared by a gentile that was then baked by a Jew. According to the Ran and the Tur, the prohibition of pas akum includes even when a non-Jew mixed or otherwise prepared dough that was then baked by a Jew. The logic is that the reason for the takanah could apply equally to bread in which the dough was prepared by a gentile, and furthermore, the Mishnah does not limit the prohibition to bread baked by a gentile, but states simply their bread.

Resolving this dispute directly impacts the second of our opening questions:
"A group of neighbors, both Jewish and non-Jewish, are getting together to make a surprise birthday party for one of the non-Jewish people on the block who has been incredibly helpful to us all. Since there are some frum people on the block, the party will be strictly kosher. One of the non-Jewish neighbors is a baker by trade and will be baking everything in one of the kosher houses. Is there any problem with his doing this when the frum people are supplying all the ingredients?"

According to the Ran and the Tur, this bread would be prohibited, because it was prepared by a gentile, regardless of who baked it. However, notwithstanding their opinion, most authorities rule that pas akum is limited to bread baked by a gentile. Thus, as long as this bread is baked by a Jew, it will be kosher, regardless as to who mixed the dough and the ingredients. However, if the gentile neighbor baked the bread in a Jewish house without any Jewish participation, it is prohibited according to most authorities, even when all the ingredients are kosher.

Sometimes permitted?
We have seen that the Mishnah lists the prohibition of pas akum, and does not imply that this ban has any exceptions. Yet, we find passages in both the Talmud Bavli and in the Talmud Yerushalmi implying that the prohibition was not observed universally. Apparently, this was because bread is such a staple and, Jews often found themselves living in a place where there were no Jewish commercial bakeries; baking all one’s bread at home was impractical.

In the Bavli (Avodah Zarah 35b), we find the following:

Rav Kahana, quoting Rav Yochanan, said: "The prohibition of pas akum was not rescinded by beis din." This statement implies that someone held that it was, and that Rabbi Yochanan, one of the greatest amora’im, is rejecting that approach. The Gemara then explains that, indeed, some people had, in error, understood that the prohibition of pas akum no longer applies.

To explain what happened, the Gemara shares with us some history: One time, while Rebbe (Rabbi Yehudah Hanasi, the author of the Mishnah) was traveling, a non-Jewish person brought him a large, nice loaf of bread. Subsequently, Rebbe was heard to exclaim: "What a nice loaf of bread this is! What did Chazal see to prohibit it?"
Based on this comment, some people understood Rebbe’s comment to mean that the takanah of pas akum indeed no longer applied. Although more than a hundred years before Rebbe the disciples of Hillel and Shammai had prohibited it, they understood that Rebbe had rescinded the takanah, and, therefore, he mused why Chazal had once declared this bread to be prohibited. The Gemara concludes that the understanding of these people was erroneous. Rebbe’s comment was whimsical; he never intended to permit pas akum (Avodah Zarah 35b).

Yerushalmi versus Bavli
The just-quoted passage of Gemara Bavli implies that there is no heter to use pas akum. On the other hand, a passage in the Yerushalmi (Avodah Zarah 2:8) disputes this. There, it quotes an early statement to the effect that the laws concerning the prohibition of pas akum appear to be inconsistent. The Yerushalmi then suggests several possibilities to explain what inconsistency exists regarding the laws of pas akum. The Yerushalmi concludes that this is the inconsistency: In a place where pas Yisroel is available, one would assume that one is not permitted to use pas akum, yet one may.

It thus appears that we have discovered a dispute between the Talmud Bavli and the Talmud Yerushalmi, in which the Bavli ruled that pas akum is prohibited and the Yerushalmi ruled that it is permitted. If this is true, then we should rule according to the Bavli and prohibit all forms of pas akum.

Yet, the Rif, the major early halachic authority, cites both the passage of the Bavli and that of the Yerushalmi, implying that there is no disagreement between them.

Resolving the Rif
To explain how one early authority, the Rashba, resolves this difficulty, I will follow Jewish tradition by answering a question with a question. Although the Gemara (Avodah Zarah 35b) ultimately rejects this conclusion, it had entertained the possibility that Rebbe rescinded the takanah of pas akum. Upon what halachic basis could Rebbe have been able been able to rescind a takanah? Since this takanah was created by the disciples of Hillel and Shamai, it cannot be abrogated by a later beis din. The only other possibility is that the takanah of pas akum had not been properly observed. Therefore, a later beis din could rescind the takanah. Thus, the conclusion of the Bavli implies that, although Rebbe didn’t rescind the takanah of pas akum, he could have, since it was not properly established.

At this point, we can explain what the Rif meant. There is no contradiction between the Bavli and the Yerushalmi. The Bavli teaches two things:

1. That the takanah of pas akum could have been rescinded.

2. That Rebbe was not the one who did so, and that it was still valid in his time.
The Yerushalmi teaches that at some point after Rebbe, someone did, indeed, rescind the takanah to a certain degree (Rashba, quoted by Ran). The Ran himself explains that even the Bavli can be read in a way that it implies that the prohibition was rescinded.

To what extent?
Based on the Rif, we know that there was some rescinding of the takanah. Our next question is: To what extent was the prohibition rescinded?

Among the rishonim, we find various approaches defining to what extent the prohibition of pas akum was relaxed. Some contend that this depends on location – in some places the takanah was not initially accepted, and in these places Chazal relaxed the takanah to a greater extent than they did elsewhere.

However, even in places where the custom was to be lenient, not all pas akum was permitted. In all places, bread baked by a gentile for personal use and not for sale is prohibited. This bread is called pas baalei batim.

The dispute whether and to what extent one may be lenient concerns only bread baked for sale. This bread is called pas paltur, literally, bread baked for a merchant, and is sometimes permitted. To what extend it is permitted is the subject of a controversy that we will discuss shortly.

Invitation to the White House
The next case might be an application of this law: Someone receives an invitation to a meal at the White House that will be supervised, so that all the ingredients are kosher and the equipment is all brand new, special for the event. If the mashgiach did not participate in the baking of the breads, they might be prohibited because of pas baalei batim. (See a dispute about this matter in Birkei Yosef, Yoreh Deah 112:2, 3, 6). This is because the bread was not baked for sale, but for the "personal use" of the residents of the White House and their guests.

When is pas paltur permitted?
Returning to our discussion, what conditions need to be met for pas paltur to be permitted? There is a wide range of opinion among halachic authorities. According to the Shulchan Aruch, one may use pas paltur whenever no Jewish bakery is available, even in a city with a sizable Jewish community. If pas Yisroel becomes available, then the pas paltur should not be used until the pas Yisroel is no longer available, even if the pas paltur has already been baked (Yoreh Deah 112:4).

Less tasty
The authorities disagree whether one may eat pas paltur even when there is a Jewish bakery, but the pas Yisroel is less tasty than the bread of the gentile (Tur). The Shulchan Aruch rules leniently that if the pas paltur is of better quality or is of a variety that is not available from a Yisroel, one may use it (Yoreh Deah 112:5).

A more lenient approach
The Rema is more lenient than either the Rambam or the Shulchan Aruch, concluding that, where the custom is to permit pas paltur, one may consume it, even when pas Yisroel is available (Yoreh Deah 112:2). The Bach and the Gra follow the opinion of the Rema, whereas other opinions agree with the Shulchan Aruch and permit pas paltur only when pas Yisroel is not available and in a place where the custom is to be lenient (Shach). All of the above opinions agree that it is prohibited to use pas baalei batim, bread baked by a gentile for personal use (Yoreh Deah 112:7).

The prevalent approach among most hechsherim in North America is to follow the opinion of the Rema and permit pas paltur. As a rule of thumb, most Mehadrin hechsherim in Eretz Yisroel are strict and do not permit pas paltur.

When was it baked?
What is the defining factor determining whether bread is pas paltur or pas baalei batim? Is this determined by what was intended when the bread was baked, or what ultimately happens with the bread? For example, if a gentile baked bread to sell, but found no customer for it, and therefore kept it for himself, may a Jew eat this bread? Indeed, this is the subject of an early dispute, most halachic authorities contending that the defining factor is what was intended when the bread is baked. According to this approach, bread baked by a gentile for his own use who then decided to sell it is prohibited. On the other hand, if he baked the bread intending to sell it and then brought it home for his own use, it may be consumed (Toras Habayis 3:7). However, most authorities seem to conclude that when a gentile invited someone over to eat, it is forbidden to break bread with him, regardless as to whether it was originally baked for sale or not (Shach; Pri Toar).

Friendly baker
Here is an interesting ramification of our current discussion, slightly modified from one of our opening questions: "A group of neighbors, both Jewish and non-Jewish, are making a strictly kosher party. One of the non-Jewish neighbors owns and operates a bakery that has a hechsher, but it is not pas Yisroel. Can he bring bread that was baked at his bakery for the party?"

According to most opinions, this bread is forbidden, since it was not baked for sale.

Jewish participation
The entire issue of whether and under what circumstances a Jew can eat bread baked by a non-Jew is problematic only when the entire baking procedure is done without any participation of a Jew. However, if a Jew increases the heat of the oven in any way, even by merely symbolically adding a splinter to the fire, the bread baked is considered pas Yisroel. The Rema furthermore states that if a Jew increased the fire once, and the oven was not turned off for twenty-four consecutive hours, then all the bread is considered pas Yisroel.

In a large, modern, industrial bakery, it is usually very easy to arrange that everything baked there should be pas Yisroel. Since these bakeries operate seven days a week, whenever the mashgiach visits, he needs simply to adjust upward the thermostat or dial until he sees that he has added fuel to the fire, and then return the dial to its setting. This will make the bread pas Yisroel for the foreseeable future. I have done this personally numerous times and so have many others.

The reason why this is not usually done is very simple: The consumer is not clamoring for it to be done, and the hechsherim follow the approach that pas paltur is permitted. If consumers would demand that the bread under hechsher be pas Yisroel, it all would be.

Aseres Yemei Teshuvah
We can now answer Questions #1 and #3 which we posed earlier. Notwithstanding the conclusion that, at least under certain circumstances, pas akum is permitted, several rishonim record that one should be stringent during the Ten Days of Repentance to use only pas Yisroel, even in a place where the custom is to be lenient and use pas paltur (for example, Rosh, Rosh Hashanah 4:14, at very end; Tur, Orach Chayim 603). This approach is quoted by the Shulchan Aruch (Orach Chayim 603) and all the later authorities. Those who rule leniently in allowing the use of pas paltur during the Aseres Yemei Teshuvah rely on the opinions that in a large, commercial bakery, where the consumer does not know any of the workers, there is no halachic concern of pas akum. One should be aware that this heter is not mentioned by most authorities, and it is disputed by many who quote it (see Birkei Yosef, Yoreh Deah 112:9). Shu"t Minchas Yitzchok 3:26:6 rules that one may combine this heter with another heter that would be insufficient on its own.

In conclusion, according to predominant opinion, if a Jew participated in the heating of the oven, the bread is considered pas Yisroel. If no Jew participated in heating the oven, the pas paltur bread baked by a non-Jew may be used, according to the Shulchan Aruch, when there is no pas Yisroel of equal quality available. According to the Rema, in a place where the custom is to be lenient, one may use pas paltur, even if pas Yisroel is available, except during the Aseres Yemei Teshuvah.

Conclusion
The Gemara teaches that the rabbinic laws are dearer to Hashem than the Torah laws. In this context, we can explain the vast halachic literature devoted to understanding this particular prohibition, created by Chazal to protect the Jewish people from major sins.

This Shiur is published also at Rabbi Kaganof's site




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