Bishul Akum for the Ill | Rabbi Yirmiyohu Kaganoff | Beit Midrash

Family and Society
The Laws of Kashrut

קטגוריה משנית

Family and Society
Israel and the Nations

Question #1: Cooked on Shabbos
If a non-Jew cooks on Shabbos for someone who is ill, is the food he cooks prohibited because of bishul akum? Obviously, the ill person is permitted to eat the food, but there are several ramifications to this question.

Question #2: Bishul akum equipment
If a non-Jew cooked using my pots, do they require kashering because they absorbed non-kosher food?

Background:
Chazal instituted the law of bishul akum to discourage inappropriate social interaction, which could lead to intermarriage, and also to guarantee that kashrus not be compromised (Rashi, Avodah Zarah 35b s.v. Vehashelakos and 38a s.v. Miderabbanan and Tosafos ad loc.).

There are two major exceptions to the law of bishul akum – that is, situations in which a non-Jew cooked food that one may eat, despite the prohibition against bishul akum. One exception is food that is usually eaten raw, such as an apple. Therefore, if a non-Jew baked apples and did not use anything non-kosher while doing so, the apples are kosher.

Another exception is something that would not be served on a king’s table. There are many interpretations as to how to define this, but all poskim agree that small fish and porridge are permitted when cooked by a non-Jew, as long as nothing non-kosher was added – because these items are not served to a king.

This article will discuss a possible third exception to bishul akum: Food cooked by a non-Jew on Shabbos for someone who is ill.

Bishul akum for the ill
In a different article, we learned that we may ask a non-Jew to do on Shabbos whatever is required for the care of a person who is ill, even asking a non-Jew to cook for the sick person. This is permitted even if no life-threatening emergency exists, as long as the person is ill enough to be choleh kol gufo, usually defined as someone ill enough to go to bed (Shulchan Aruch, Orach Chayim 328:17), or whose discomfort is intense enough that he feels that his entire body is affected (Rema ad locum).

In the previous article, I did not discuss an important question: If food cooked by a non-Jew is prohibited because of bishul akum, how can a Jewish person eat what the non-Jew cooked? There are two obvious answers to this question:

1. Food cooked by a non-Jew to take care of a sick person was excluded from the prohibition of bishul akum.

2. Because of his medical needs, a choleh kol gufo is exempt from the prohibition of bishul akum.

In either event, we have several follow-up questions:

Does this heter apply only to what is cooked on Shabbos, when a Jew may not cook for the sick person, or does it apply all the time? If this dispensation applies only to what a non-Jew cooked on Shabbos, is the ill person permitted to eat the leftovers after Shabbos, or does that food become prohibited once a Jew can cook for him? And, assuming that the sick person is permitted to eat the food after Shabbos, is it permitted for a different Jew, who is perfectly healthy, to eat what the non-Jew cooked on Shabbos?

Does bishul akum affect pots?
Finally, if the non-Jew used a Jew’s kosher pots to cook for the ill on Shabbos, do the pots become non-kosher because they absorbed bishul akum? If so, do the pots now need to be koshered before they may be used again? Or, since it is permitted to ask the non-Jew to cook for the Jewish ill, do the pots not need to be koshered afterward? Or, an even more lenient idea: perhaps bishul akum applies only to food, but does not prohibit pots at all?

This entire list of questions is discussed and debated by the rishonim. Their differing approaches provide a goldmine for the scholar attempting to analyze critically the legal (halachic) status of bishul akum and to comprehend clearly Chazal’s ruling permitting asking a non-Jew to cook for the ill. As we will soon see, there are various ways to answer the questions that we raised, and differences in halachic opinion affect decisions made in kosher nursing homes and hospital to this very day.

Explaining these issues also affords an opportunity to understand an important chapter in Jewish history that is not as well known as it should be.

Debate in Barcelona
Barcelona is the second largest city in Spain and the capital of Catalonia, the northeastern region of the country. Today, there is a tiny Jewish presence in the city, but, in the times of the rishonim, Barcelona was a major headquarters of Torah. At different times, many gedolei Yisroel lived in the city, including the Raavad, the Ramban, Rav Yehudah Bartzeloni, the Rashba, the Rosh (who had fled from Germany, which had become very dangerous for rabbonim), the Rosh’s distinguished sons (including his son Yaakov, who later authored the Tur), Rav Aharon Halevi (known as the Re’ah), the Ohr Hashem (Rav Chasdai Kreskas), the Ritva, and the Nimukei Yosef, to list some of the better-known gedolim who walked the streets of this city.

In the thirteenth century, three major halachic works appeared in Barcelona in quick succession. These works clarified the halachos observed in a frum house. The first, written by the Rashba, was aptly called Toras Habayis (literally, the laws of the house), which discussed, in very organized and detailed fashion, the laws of kashrus, mikveh, netilas yadayim and other household laws. It was actually two different works. One, a brief edition called the Toras Habayis Hakatzar, offered instructions for household owners to manage their homes in accordance with halacha. The other, Toras Habayis He’aruch, is an extensive and thorough explanation of the halachic background to the topics, quoting the original sources in the Mishnah, Gemara, and early authorities. It discusses and explains the arguments, sources and opinions cited by the various great, early poskim on the subject, and then the Rashba reaches his conclusion.

Shortly after the Toras Habayis saw the light of day, another work, called Bedek Habayis (literally, inspections [or repairs] of the house) appeared, written by Rav Aharon Halevi ( the Re’ah) exclusively to disagree with the conclusions of the Toras Habayis. The Bedek Habayis went to great length to demonstrate where he felt the Toras Habayis’s analysis and comparisons were incorrect.

Eventually, a third work was produced anonymously, called the Mishmeres Habayis (protecting the house), the purpose of which was to explain that the original Toras Habayis’s conclusions had been correct and that the Bedek Habayis was incorrect.
These works were all produced before the invention of the printing press, which means that they were circulated via copying them by hand.

The mystery is discovered
At first, the members of the community were baffled trying to identify the author of the Mishmeres Habayis. This should indicate the high level of Talmudic scholarship that existed then in Barcelona – apparently, there were enough Torah scholars in Barcelona capable of writing such an incredibly scholarly work that it could be published anonymously, without the identity of its author being immediately obvious.

Eventually, it was discovered that the author of the Mishmeres Habayis was none other than the Rashba himself.

At this point, let us return to our topic, and to our original opening questions:

1. If a non-Jew cooks on Shabbos for someone who is ill, is the food he cooks prohibited because of bishul akum?

2. If a non-Jew cooked using my pots, do they require kashering because they absorbed non-kosher food?

Opinion of the Re’ah
Although the Toras Habayis does not discuss these topics, both the Bedek Habayis and the Mishmeres Habayis do. The Bedek Habayis (Bayis 3 Shaar 7) concludes that:
1. Food cooked by a non-Jew to take care of the needs of someone ill does not carry the prohibition of bishul akum.
2. Bishul akum does not affect equipment.

The Bedek Habayis permits the first case for the following reason: At the time this food was cooked, it was permitted to be eaten. A person who is well may not eat it because of the laws of Shabbos – we are concerned that someone may ask the non-Jew to do something on Shabbos that is not permitted for a Jew to do – but not because of the prohibition of bishul akum. Since the cooking was performed not for social reasons but in order to have fresh food for ill people, no prohibition of bishul akum was incurred at the time that the food was cooked. Therefore, it cannot become prohibited as bishul akum after Shabbos is over. The Re’ah concludes that the food cooked by a non-Jew for an ill Jewish person on Shabbos is permitted after Shabbos, even for a perfectly healthy person.
Furthermore, reasons the Bedek Habayis, should a non-Jew cook for himself in a kosher pot, the food is prohibited because of bishul akum but the pot itself remains kosher. The reason is that the use of this pot does not create any favorable social interaction between Jews and non-Jews that we must avoid. In other words, the Bedek Habayis contends that since the prohibition of bishul akum was limited to situations that encourage social interaction, the taste of bishul akum that is absorbed into pots was never prohibited. Enjoying the residual taste remaining in a pot does not encourage unwanted social interaction.
The Bedek Habayis then quotes Rav Yitzchak beRabbi Manoach, who rules that what a non-Jewish slave cooks as part of the responsibility to the household that owns him or her is not prohibited as bishul akum, since there is no increased social interaction when someone cooks as an aspect of being a slave. The point of the Bedek Habayis is that Rav Yitzchak beRabbi Manoach contends that eating what a gentile cooked is not included in the prohibition of bishul akum when the circumstances do not encourage social interaction – and certainly the residual absorption in the pots is permitted.
The Bedek Habayis then quotes from "mori rabbeinu Moshe, z"l," the Ramban (who had headed a yeshivah in Barcelona and was the Re’ah’s primary rebbe), that, lechatchilah, cooking in a Jewish house should not be performed by a non-Jewish slave – but if it was, the food is permitted bedi’eved.

The Rashba’s response
The Rashba, in his Mishmeres Habayis, disagrees with every point made by the Re’ah in the Bedek Habayis. He compares a non-Jew cooking food for an ill person on Shabbos to the situation of a person who is deathly ill and there is no fresh meat to eat. The halacha in the latter situation is that, if no shocheit is available, you are required to kill an animal, rendering its meat neveilah, and cook it for the sick person. As soon as a shocheit becomes available, you are no longer permitted to feed the sick person non-kosher. Of course, the pot in which the neveilah was cooked is not kosher and must be koshered. Similarly, Mishmeres Habayis contends that although it is permitted to have a non-Jew cook for someone ill, the food is permitted to be eaten only by the ill and only until there is enough time after Shabbos to cook fresh food. Once that time arrives, all the food that was cooked by the non-Jew becomes prohibited as bishul akum, even for the sick person, and certainly it was never permitted for someone well to eat. In addition, the previously kosher pot used by the non-Jew to cook for the ill on Shabbos is prohibited because of the bishul akum absorbed in it, and the pot must be koshered before it can be used again.
The Mishmeres Habayis explains the basis for this law as the general rule, "kol detikun rabbanan ke’ein de’oraysa tikun," whatever the Sages established they did in a system similar to the rules of the Torah" (Pesachim 30b, 39b, et al.). Therefore, when Chazal created the prohibition of bishul akum, they gave the prohibited product all the rules that apply to items prohibited min haTorah. Thus, we see that Barcelona was the scene of a major halachic controversy that has ramifications to this very day.

How do we rule?
Well, who is "we"? The Ran (Shu"t Haran 5:11-12), the primary Spanish halachic authority in the generation following the Rashba and Re’ah, discusses the second question, whether bishul akum prohibits the equipment used to cook it. He opines that logically the prohibition of bishul akum should apply only to the food prepared and not to the equipment in which it was produced, since concerns about social interaction apply only to the food, and not to the equipment. However, that since there are poskim who disagreed with the Re’ah, the Ran concludes that it is preferable to have the equipment koshered, and, if this food was cooked in an earthenware pot (which cannot be kashered), the earthenware pot should be broken (see Pesachim 30b; Avodah Zarah 33b-34a).
Two contemporaries of the Ran also weigh in on the question of whether we require kashering of equipment in which bishul akum occurred. The Tur (end of Yoreh Deah 113) quotes that the Rashba required kashering equipment that cooked bishul akum, even if it was a case of non-Jewish servants who cooked in a Jew’s house. He notes that the Rashba holds that, to avoid prohibiting the pots, when non-Jewish workers cook for themselves in a Jewish house, someone Jewish must participate in the cooking, in a way that avoids the prohibition of bishul akum.

The Tur himself does not conclude this way. He quotes that his father, the Rosh, a contemporary of the Rashba, contends that Chazal prohibited only the food of bishul akum, but did not extend the prohibition to flavor absorbed into pots and other equipment. In other words, the Rosh accepts the approach of the Re’ah that bishul akum is different from other proscriptions and is prohibited only to the extent that it would cause unwanted social interactions.
The other contemporary of the Ran who discusses this issue is Rabbeinu Yerucham, a disciple of the Rosh, who writes that most authorities agreed with the Rosh that bishul akum does not create a prohibition on the equipment used to cook it. However, the Beis Yosef, after quoting Rabbeinu Yerucham, disagrees with his conclusion that most authorities accept the Rosh’s opinion. The Beis Yosef writes that most authorities who lived after the era of the Rashba, Re’ah and Rosh accept the opinion of the Rashba as the conclusive halacha. In Shulchan Aruch, he mentions both approaches, but concludes that the main approach is that equipment used for bishul akum does require kashering.

Three times lucky
Above, I quoted the Ran who states that if bishul akum prohibits the vessels, if an earthenware pot was used, the pot must be broken. However, the Rashba himself did not rule this way. This is based on a passage of Talmud Yerushalmi (Terumos 11:4) that rules that a lenience applies when a prohibition is rabbinic in origin, which is the case of bishul akum. In these circumstances, Chazal permitted kashering earthenware by boiling the vessel three times (Rashba, quoted by Tur Yoreh Deah 123). This ruling is accepted by the Shulchan Aruch (Yoreh Deah 113:16).

What about for the ill?
Above, we mentioned that the Rashba and Re’ah also disagreed about whether food cooked by a non-Jew on Shabbos for a Jewish person who is ill is prohibited as bishul akum. How do we rule on this question? Again, it depends on whom you ask: The Rema and the Shach conclude that the food is permitted after Shabbos, even for a healthy person, whereas the Taz, Mishnah Berurah (328:63) and others rule that it is prohibited even for the ill person once food cooked by a Jew becomes available.

Conclusion
According to the Rambam, the reason Chazal prohibited asking a non-Jew to do work on Shabbos is in order not to diminish sensitivity to doing melacha ourselves. Refraining from having even a non-Jew work is testimony to our deep conviction that Hashem created the world.
We have just learned an exception to this rule: When someone is ill, we are permitted to ask a non-Jew to cook for him. This will not diminish sensitivity to doing melacha ourselves, but will increase our sensitivity to the needs of the ill and the mitzvah of bikur cholim, ensuring that we attend to their needs as best as we can.

This Shiur is published also at Rabbi Kaganof's site

Israel and the Nations

The Laws of Kashrut