[The prohibition against partaking of] the gid hanesheh1applies with regard to kosher2 domesticated animals and wild beasts,3 even nevelot and trefot.4 It applies to a fetus5 and to animals that have been consecrated, both those consecrated [for sacrifices] of which we partake and for sacrifices of which we do not partake. It applies to [the gid] on the right thigh and that on the left thigh.6
According to Scriptural Law, only [the gid] on the hip socket is forbidden, as [Genesis 32:33] states: "which is on the hip-socket." The remainder of the gid which is above the socket or below the socket - and similarly, the fat which is on the gid - are forbidden only according to Rabbinic decree.7There are two giddim. The inner one next to the bone is forbidden according to Scriptural Law. The entire outer one is forbidden by Rabbinic decree.
When a person partakes of the inner gid hanesheh on the socket, he is liable for lashes.8 If he partakes of the fat [of the gid], the remainder of the inner gid, or the entire outer one, he is liable for stripes for rebellious conduct.9
What is the measure of which one must partake to be liable? An olive-sized portion. If one ate the entire gid on the socket, one is liable, even though it is less than an olive in size. The rationale is that it is considered as a self-contained entity.10
When a person eats an olive-sized portion of the gid on the right side and an olive-sized portion of the gid on the left side, or he ate two entire giddim even if they are not the size of an olive, he receives 80 lashes. He is given lashes for every gid independently.11
The prohibition against gid hanesheh does not apply with regard to a fowl, because it does not have a [round]12 hip-socket. Instead, its thigh is long [and flat]. If there is a fowl whose thigh is shaped like that of the thigh of an animal, i.e., it has a hip-socket, its gid hanesheh is forbidden, but one is not liable for lashes, because of it. Similarly, when there is an animal whose thigh is long like that of a fowl, its gid hanesheh is forbidden, but one is not liable for lashes for it.13
When a person eats the gid hanesheh from a non-kosher domesticated animal or wild beast, he is not liable.14 [The rationale is that this prohibition] does not apply with regard to a non-kosher animal,15 only with regard to an animal that is entirely permitted. Nor is he considered as one who partook of the remainder of its body, for the gid is not included as meat, as we explained.16 If, however, one partakes of the fat on the gid [of a non-kosher] animal, it is considered as if one ate from its meat.
When a person partakes of a gid hanesheh from a nevelah, a trefe, or an animal consecrated as a burnt offering, he is liable for two [sets of lashes]. Since [the prohibition]17 includes the remainder of its body which was permitted, it also includes the gid and causes another prohibition to be added to it.18
One who removes the gid hanesheh must ferret out all traces of it until nothing remains.19 A butcher's word is accepted with regard to the gid hanesheh,20 just as it is accepted with regard to forbidden fat. [Accordingly,] we do not purchase meat from every butcher, [only from] an upright man who has established a reputation for observance.21 If he slaughters meat himself and sells it, his word is accepted.
Where does the above apply? In the Diaspora. In Eretz Yisrael, by contrast, when it is populated entirely by [Torah-observant] Jews, meat may be purchased from anyone.22
[The following rules apply when] a butcher is considered as trustworthy to sell meat, but it is discovered that he sold meat that was nevelah or trefe. He must return the money to its owners.23 He is placed under a ban of ostracism and is removed from his position.24
There is no way that he can correct [his act] so that people [will be allowed] to purchase meat from him until he goes to a place where his identity is unknown25and returns a lost object of significant worth or slaughters an animal for his own self and has it declared trefe although it involves a significant financial loss. For these actions indicate that he certainly repented without any [intent to] deceive.26
When a person purchases meat and sends it via a common person, [the latter's] word is accepted with regard to it. Although he has not established a reputation for Torah observance,27 we do not suspect that he will exchange [the meat for a non-kosher cut].28 Even the servants and maidservants29 of the Jews are trusted with regard to such a matter. A gentile, by contrast, is not [trusted], for we fear that he will exchange [the meat].30
[The following rule applies when there are] ten stores, nine sell kosher meat and one sells nevelot.31 If one purchased meat from one of these stores and did not know which one he purchased from, [the meat] is forbidden. [The rationale is that] whenever [the presence of a forbidden entity] is firmly established, the situation is considered as half and half.32
If, however, meat is found cast away in the street,33 [it is judged] according to the majority. For [we follow the assumption:] Anything that was separated, separated from the majority.34 If the majority of sellers were gentile, [the meat] is forbidden. If the majority were Jewish, it is permitted.
Similarly, when meat is found in the hand of a gentile and it is not known from where he purchased it, if [the majority of] the sellers of meat were Jewish, it is permitted.
This reflects the ruling according to Scriptural Law. [Nevertheless,] our Sages have already forbidden any meat found in the marketplace or in the possession of a gentile35 even though all the slaughterers and all the sellers are Jewish. Moreover, even if one purchased meat, left it in his house, and it disappeared from one's sight, it is forbidden36 unless it had a distinguishing mark, he was familiar with it and could recognize it definitely as [the piece of meat lost],37 or it was bound and sealed.
[The following rule applies when] one hung a container filled with pieces of meat, the container broke, and the pieces fell to the earth.38 If there is no distinguishing mark [on the meat] and he was not able to recognize it, it is forbidden. [The rationale is that] it is possible to say that the meat that was in the container was dragged away by a wild beast or creeping animal and this is other meat.
It is permitted to derive benefit from a gid hanesheh.39 Therefore it is permissible for a person to send a thigh which contains a gid hanesheh to a gentile.40 He may give him the entire thigh intact in the presence of a Jew. We do not suspect that [the other] Jew will partake of this meat before the gid is removed, because its place is recognizable.41 Accordingly, if the thigh was cut into pieces, he should not give it to a gentile in the presence of a Jew, lest the other Jew partake of it.42
Wherever the Torah states: "Do not eat," "You shall not eat,"43 "They shall not eat," or "It shall not be eaten," the intent is that it is forbidden both to partake of or benefit from the forbidden entity44 unless:
a) a verse explicitly states otherwise, as it does with regard to a nevelah [Deuteronomy 14:21]: "Give it to the stranger in your gate and he shall partake of it," or with regard to forbidden fat [Leviticus 7:24]: "You may use it for any task"; or
b) the Oral Law states explicitly that it is permitted to benefit from it, as is the case with regarding to teeming animals, swarming animals, blood, a limb from a living animal, and the gid hanesheh. For according to the Oral Tradition, it is permitted to benefit from all these prohibited entities, even though it is forbidden to partake of them.
Whenever it is forbidden to benefit from a substance, if a person derives benefit without partaking of it, e.g., he sold or gave to a gentile or gave it to dogs, he is not liable for lashes.45 He should, however, be given stripes for rebellious conduct. The money [he received] is permitted.46
Whenever it is forbidden to partake of a substance, but it is permitted to benefit from it, even though it is permitted to benefit from it, it is forbidden do business with such articles or establish oneself in a profession that involves forbidden entities.47[There is] an exception, forbidden fat, for concerning it, it is written: "You may use it for any task." For this reason, we do not do business with nevelot, trefot, teeming animals, and swarming animals.
When a trapper happens upon a non-kosher wild animal, fowl, or fish, and he snares them or he traps both kosher and non-kosher animals, he may sell them.48 He may not, however, intend to have his profession concern non-kosher species.
It is, however, permitted to do business with milk that was milked by a gentile without being observed by a Jew, cheeses made by gentiles, and the like.
This is the general principle: Whenever a prohibition is forbidden by Scriptural Law, it is forbidden to do business with it. Whenever the prohibition is Rabbinic in origin, it is permitted do business with it, whether we are certain of the existence of the prohibition or it is a matter of question.
Genesis, ch. 32, relates that before his confrontation with Esau, Jacob remained alone in his camp. An unidentified being - interpreted by the Torah commentaries to be Esau's archangel - wrestled with him the entire night. When he saw that he could not defeat Jacob, he gave him a blow to his upper thigh, dislocating his gid hanesheh. In commemoration of this event, ""The children of Israel do not eat the gid hanesheh.
The Rabbis identified the gid hanesheh as the sciatic nerve, the large main nerve running down the back of an animal's hind leg. The term gid, though sometimes translated as "sinew," is a general term. As the Rambam writes in his Commentary to the Mishnah (Zevachim 3:4), it is used to refer to arteries, veins, tendons, nerves, and sinews.
The Shulchan Aruch (Yoreh De'ah 65:7 does not cite the Rambam's view, but instead quotes two differing opinions: one that the prohibition does not apply to a fetus at all and another, that it applies only when the fetus has completed the period of gestation and is discovered alive.
Rav Moshe HaCohen writes that this ruling applies when the person was given a separate warning for each gid. Otherwise, he receives only one set of lashes. The Maggid Mishneh states that the Rambam would also accept that interpretation.
Chullin 101a notes that the confrontation between Jacob and the angel took place before the Giving of the Torah, at a time when the Jews could eat non-kosher animals. Hence, there is reason to say that the prohibition could involve a non-kosher animal, for partaking of such animal was not forbidden until the Giving of the Torah.
In response, the Talmud explains that our observance of this prohibition does not stem from the practice observed by Jacob's descendants, but because this prohibition was reiterated at the time of the Giving of the Torah. In his Commentary to the Mishnah (Chullin 7:6, the Rambam elaborates on this point, explaining that our observance of Jewish practice, even the mitzvot which we know that the Patriarchs fulfilled like circumcision, stems from God's command at Sinai and not from our ancestors' observance.
Following the concept of issur kollel, "an encompassing prohibition," as explained in the conclusion of Halachah 14 (Maggid Mishneh).
The Kessef Mishneh questions the Rambam's ruling, noting that Chullin 82b states that according to the opinion that a gid hanesheh does not have any flavor, one is not liable. Only the opinion that maintains that the gid hanesheh does have a flavor holds one liable. From the previous halachah, it appears that the Rambam follows the former view. Why then does he hold the person liable for two sets of lashes.
Since the gid hanesheh and the gid forbidden by Rabbinic decree subdivide into several branches, this is a rather difficult task. For this reason, in most sectors of the Jewish community today, it is customary not to eat the hind-quarters of an animal. Accordingly, several cuts of meat, e.g., sirloin steak, are not available from kosher butchers.
If the person himself does not have a reputation for observance and knowledge of the laws, he can sell meat if he hires such a person to act as a supervisor. This is the rationale for the practice of hasgachah, kashrut inspection, practiced today.
He must return the money entirely. This applies even if the customers already partook of the non-kosher meat (Hilchot Mechirah 16:14). The rationale is that a person's soul is revolted by the commission of a transgression and he is not considered to have benefited from the meat at all (Sefer Meirat Einayim 232:4).
I.e., they show that he is willing to forgo his financial benefit in order to keep Torah law. See also Hilchot Shechitah 10:14 and Hilchot Edut 12:9 which deal with the same concept. Hilchot Edut states that in order to be accepted as a witness, he must wear black garments as a sign of repentance.
See the Maggid Mishneh who maintains that the Rambam would rule in this manner even when a Jew is reputed to transgress various prohibitions. He also mentions the opinion of the Rashba who maintains that further precautions must be taken if an article is entrusted to a non-observant Jew. The Shulchan Aruch (Yoreh De'ah 118:8) quotes the Rambam's ruling and then cites the Rashba's view without indicating which opinion should be followed.
I.e., we do not expect that he will steal. Moreover, he will derive no benefit from doing so, for he will have to supply an equivalent piece of meat for the one he exchanges. We do not expect him to cause sin without deriving any benefit. If, however, he has a reputation for stealing, his word is not accepted (Maggid Mishneh).
For a gentile is never trusted in any matters involving Jewish observance. When one desires to send food that involves prohibitions with a gentile, it is necessary to take precautions as stated in Chapter 13, Halachot 8-10.
The Hagahot Maimoniot explains that this law applies only when the meat is discovered in the public domain. If a person is seen taking meat from a store, but it is not known which store he took it from, the previous law applies.
As mentioned by the Maggid Mishneh, there are Rishonim who permit meat found in the possession of a gentile when the majority of the sellers are Jewish, maintaining that this is evident from Chullin 95a. The Shulchan Aruch (Yoreh De'ah 63:1, however, quotes the Rambam's view.
According to the literal meaning of the Rambam's words, if meat was placed in the freezer, it would be forbidden. The Shulchan Aruch (Yoreh De'ah 63:2) cites, however, the opinion of Rashbam which permits the meat if it is found in the same place that it was placed. The Rama writes that it is customary to follow this view.
The Maggid Mishneh states that if a person has a reputation for upright conduct, his word is accepted in this concept even if he is not a Torah scholar. Note the contrast to Hilchot Gezeilah V'Aveidah 14:12 which accepts only the word of a Torah scholar if one claims to recognize a lost object, but cannot identify it with distinctive marks.
The Maggid Mishneh notes that according to Pesachim 22a, it would appear that the authorities who maintain that the gid hanesheh has no flavor also maintain that it is forbidden to benefit from it. Now the Rambam follow the perspective that the gid hanesheh has no flavor (see Halachah 5). Hence his position here is somewhat difficult. The Maggid Mishneh explains, however, that the two positions are not necessary interrelated and both rulings of the Rambam can be upheld.
Since the Jew sees a co-religionist giving the gentile the meat, he will assume that it was ritually slaughtered and that the meat was kosher. [This applies in a place where public announcements are made when an animal is discovered to be trefe (Chullin 93b). Otherwise, the Jew must tell the gentile that the animal is kosher (Shulchan Aruch, Yoreh De'ah 65:11)].
Nevertheless, since the place of the gid hanesheh is recognizable - i.e., it is obvious whether the gid is still in the thigh or has already been removed - he will not partake of the meat until the gid is removed.
Sometimes the command is stated in an active voice; sometimes, it is passive; sometimes, singular and sometimes plural. The passive form implies that it is forbidden to derive any benefit that could lead to one's eating, e.g., selling it for money that could be used to purchase food.
Rav Moshe HaCohen questions this ruling, stating that if the intent of the Scriptural prohibition is that it is forbidden to benefit from these substances, why is one not liable for lashes for deriving such benefit? The Maggid Mishneh explains that he is not liable, for one is liable for lashes only when he derives benefit from the food in the ordinary manner one derives benefit from food. This includes only eating. Receiving money, by contrast, is not considered as benefiting from food in the ordinary manner. Rav Moshe HaCohen, however, anticipated that attempted resolution and explains that, on the contrary, selling edible food is an ordinary way of deriving benefit.
I.e., one's livelihood may not revolve around the sale of these forbidden entities or performing work with them (e.g., serving as a chef in a non-kosher restaurant). The rationale for the prohibition is that we fear that a person who has extensive involvement with forbidden substances may come to partake of them (Rashba).
The Maggid Mishneh clarifies that the above applies only with regard to food from forbidden species. One may choose a profession that involves employing a horse or a donkey as a beast of burden.
He must sell them immediately. He may not raise them until they become large [Rama (Yoreh De'ah 117:4)]. See also Siftei Cohen 117:6 who questions whether the leniency is granted only to a professional trapper or to any person.
Ma'achalot Assurot - Chapter 9
It is forbidden to cook meat and milk together and to partake of them according to Scriptural Law.1 It is forbidden to benefit from [such a mixture]. It must be buried. Its ashes are forbidden like the ashes of all substances that must be buried.2
Whenever a person cooks an olive-sized portion of the two substances together,3 he is worthy of lashes, as [Exodus 23:19] states: "Do not cook a kid in its mother's milk." Similarly, a person who partakes of an olive-sized portion of the meat and milk that were cooked together4 is worthy of lashes even though he was not the one who cooked them.5
The Torah remained silent concerning the prohibition against partaking [of meat and milk]6 only because it forbade cooking them. This is as if to say: Even cooking it is forbidden, how much more so partaking of it.7 [To cite a parallel:] The Torah did not mention the prohibition against relations with one's daughter, because it forbade those with the daughter of one's daughter.8
According to Scriptural Law, the prohibition involves only [a mixture of] meat from a kosher domesticated animal9 and milk from a kosher domesticated animal, as implied by the verse: "Do not cook a kid in its mother's milk."10 The term "a kid" includes the offspring of an ox, the offspring of a sheep, and the offspring of a goat unless the verse states explicitly, a goat-kid.11The term "a kid in its mother's milk" [does not exclude all other situations].12 Instead, the Torah is speaking regarding the commonplace circumstance.
With regard to the meat of a kosher animal which was cooked in the milk of a non-kosher animal or the meat of a non-kosher animal which was cooked in the milk of a kosher animal, by contrast, cooking is permitted, and deriving benefit is permitted. One is not liable for [transgressing the prohibition against partaking of] meat and milk if one partakes of it.13
Similarly, the meat of a wild beast and the meat of a fowl together with the milk of a wild beast or the milk of a domesticated animal is not forbidden according to Scriptural Law.14 Therefore it is permitted to cook it and it is permitted to benefit from it. It is forbidden to partake of it according to Rabbinic Law so that people at large will not be negligent and come to violate the Scriptural prohibition against milk and meat and partake of the meat of a kosher domesticated animal [cooked] in the milk of a kosher domesticated animal. For the literal meaning of the verse implies only the meat of a kid in the milk of its actual mother.15 Therefore, they forbade all meat in milk.
It is permitted to partake of fish and locusts [cooked] in milk.16
When a person slaughters a fowl and finds eggs that are completed within it, it is permitted to partake of them together with milk.17
When [milk and meat] are smoked, cooked in the hot springs of Tiberias, or the like, one is not liable for lashes.18 Similarly, when meat is cooked in whey, milk from a dead animal,19 or milk from a male,20 or if blood is cooked with milk, one is absolved and is not liable for partaking [of the mixture] because of [the prohibition against partaking of] milk and meat.21
When, however, a person cooks the meat of a dead animal, forbidden fat, or the like in milk, he is liable for lashes for cooking.22 He is not liable for lashes for partaking [of the mixture] because of the prohibition against meat and milk.23For the prohibition against [mixtures of] meat and milk does not take effect with regard to [entities] prohibited as nevelah or forbidden fat, because we are not speaking about a more encompassing prohibition, a prohibition which adds a new dimension, or [two] prohibitions that take effect at the same time.24
When a person cooks a fetus in milk, he is liable. Similarly, one who partakes of it is liable. When, however, one cooks a placenta, skin, sinews, bones, the roots of the horns, or the soft portion of the hoofs [cooked] in meat,25he is not liable. Similarly, one who partakes [of such a mixture] is not liable.
When meat falls into milk or milk falls into meat and they are cooked together, the minimum measure [for which one is liable is] enough for one substance to impart its flavor to the other.
What is implied? When a piece of meat falls into a bubbling pot26 full of milk, a gentile should taste [the contents of] the pot.27 If it has the flavor of meat, it is forbidden. If not, it is permitted, but the piece of meat is forbidden.28
When does the above apply? When he hurried and removed the piece of meat before it discharged the milk that it absorbed. If he did not remove it [that quickly], we require 60 times its volume,29 because the milk that it absorbed became forbidden. It was discharged and then mixed together with the remainder of the milk.30
When milk falls [onto a piece of] meat [being cooked] in a pot,31 we taste32 the piece on which the milk fell. If it does not have the flavor of milk, everything is permitted.33 [More stringent rules apply] if the piece of meat has the flavor of milk. Even though if the piece of meat was pressed to remove [the absorbed liquid], the flavor [of milk] would not remain, since it has the flavor of milk now, it is forbidden and we must measure its entire volume.34 If everything in the pot - the other meat, the vegetables, the sauce, and the spices - is great enough so that the piece is one sixtieth of the entire [volume], that piece of meat is forbidden35 and the remainder is permitted.36
When does the above apply? When he did not stir the pot at the outset when the milk fell into it. [He did so] only at the end37 and did not cover the pot.38
If, however, he stirred the pot from the beginning until the end39 or covered [the pot]40 from the time [the milk] fell until the end, [the question of whether a prohibition exists depends] on whether [the milk] imparted its flavor.41
Similarly, if the milk fell into the sauce or onto all the pieces and it was not known on which piece [the milk] fell,42 he should stir the entire pot so that all its contents will be mixed [thoroughly].43 If the flavor of milk [can be detected] in the entire pot, it is forbidden. If not, it is permitted. If a gentile to taste [the pot] whom we can rely on cannot be found, we require a measure of sixty whether for meat in milk or milk in meat. If there is one measure in sixty,44 it is permitted. If there is less than sixty, it is forbidden.
When meat has been cooked in a pot, milk should not be cooked in it.45 If one cooked [milk] in it, [it is forbidden] if it imparted its flavor.46
The udders [of an animal] are forbidden according to Rabbinic Law.47 [The prohibition is not of Scriptural origin, because] meat that was cooked in milk from an animal that was slaughtered is not forbidden according to Scriptural Law, as we explained.48
Therefore if one cut it open and discharged the milk it contained, it is permitted to roast it and eat it. If one cut it both horizontally and vertically and then pressed it into a wall until none of the moisture of the milk remained, it may be cooked with other meat.49
When an udder has not been cut open, when from a young animal that never nursed50 or from an older one, it is forbidden to cook it. If one transgressed and cooked it alone, it is permitted to partake of it. If one cooked it with other meat, we require 60 times its volume. The udder itself is calculated in the 60.51
What is implied? If the entire mixture together with the udder was sixty times the volume of the udder, the udder is forbidden,52 and the remainder is permitted. If there was less than 60 times its volume, the entire mixture is forbidden. Regardless of [the ruling applying to the entire mixture], if the udder fell into another pot, it can cause it to be forbidden. We require 60 times its volume as in the original instance.53 [The rationale is that] the udder which is cooked becomes considered as a forbidden piece of meat.
We measure [the volume of] the udder at the time that it was cooked, not according to its state when it fell [into the mixture].
We do not roast an udder that has been cut above meat on a spit.54If, however, one roasted it [in that manner], everything is permitted.55
A stomach that is cooked with milk inside it56 is permitted. [The rationale is that] it is no longer considered as milk.57 Instead, it is considered as a waste product, because it undergoes a change in the digestive system.
It is forbidden to place the skin of a kosher animal's stomach [in milk] to serve as a catalyst for it to harden into cheese. If one used it as a catalyst, [a gentile] should taste the cheese. If it has a taste of meat, it is forbidden. If not, it is permitted. [The rationale is that] the catalyst is itself a permitted entity,58 for it comes from the stomach of a kosher animal. [The only question] is [whether] the prohibition against meat and milk [was violated] and that is dependent on whether the flavor was imparted.
[Different laws apply, however, when] one uses the skin of the stomach of a nevelah, a trefe, or a non-kosher animal. [The rationale is that] since the catalyst is forbidden in its own right, the cheese becomes forbidden, not because of the prohibition of meat and milk, but because of the prohibition against a nevelah. For this reason, [our Sages] forbade cheeses made by gentiles, as we explained.59
Meat alone is permitted and milk alone is permitted. It is [only] when the two become mixed together through cooking that they both become forbidden.
When does the above apply? When they were cooked together, when a hot object fell into a hot object,60 or when a cold object fell into a hot object.61If, however, [milk or meat] that is hot fell into the other when it is cold, [all that is necessary is to] remove the surface of the meat which touched the milk; the remainder may be eaten.62
If cold [meat] fell into cold [milk or the opposite], one must wash the piece of meat thoroughly.63 [Afterwards,] it may be eaten. For this reason, it is permitted to [carry] meat and milk bound together in a single handkerchief, provided they do not touch each other. If they do touch each other, one must wash the meat and wash the cheese.64 [Afterwards,] he may partake of them.
When a substance is salted to the extent that it cannot be eaten because of its salt,65 is considered as if it is boiling.66 If it can be eaten in its present state like kutach,67 it is not considered as if it is boiling.68
[The following rules apply when] a fowl that has been slaughtered falls into milk or kutach that contains milk: If it is raw, it need only be washed thoroughly and it is permitted. If it was roasted, one should remove its surface.69If it has portions where it is open70 or it is spiced and it falls into milk or kutach, it is forbidden.71
It is forbidden to serve fowl72 together with milk on the table upon which one is eating.73 This is a decree [enacted] because habit [might lead] to sin.74 We fear that one will eat one with the other. [This applies] even though fowl with milk is forbidden only because of Rabbinic decree.75
When two guests who are not familiar with each other are eating at the same table, one may eat the meat of an animal and one may eat cheese. [The rationale is] that they are not well-acquainted with each other to the extent that they will eat together.76
We do not knead a loaf with milk. If one kneaded it [with milk], the loaf is forbidden,77 because habit [might lead] to sin, lest he eat it together with meat. We do not dab an oven with animal fat.78 If in fact one dabbed an oven [with fat], any loaf is forbidden79 until one fires the oven,80 lest one eat milk with [that loaf]. If one altered the appearance of the bread so that it will be evident that one should not eat meat or milk with it, it is permitted.
When a loaf has been baked together with roasted meat or fish were roasted together with meat,81 it is forbidden to eat them together with milk.82 When meat was eaten83 in a dish and then fish were cooked in it, it is permitted to eat those fish together with kutach.84
When a knife was used to cut roasted meat85 and then was used to cut radish or other sharp foods, it is forbidden to eat them together with kutach.86 If, however, one cut meat [with a knife] and afterwards cut zucchini or watermelon,87 one should scrape away the place where the cut was made and the remainder may be eaten with milk.
We do not place a jar of salt near a jar of kutach, because it will draw out its flavor.88 Thus one will cook meat with this salt that has the flavor of milk. One may, however, place a jar of vinegar near a jar of kutach, because the vinegar will not draw out its flavor.89
When a person eats cheese or milk first, it is permitted for him to eat meat directly afterwards. He must, however, wash his hands90 and clean his mouth between the cheese and the meat.91
With what should he clean his mouth? With bread or with fruit that [require him] to chew and then swallow or spit them out.92 One may clean his mouth with all substances with the exception of dates, flour, and vegetables, because they do not clean effectively.
When does the above apply? With regard to the meat of a domesticated animal or a wild beast.93 If, however, one [desires to] eat the meat of a fowl after eating cheese or milk, it is not necessary for him to clean his mouth or wash his hands.94
When a person ate meat first - whether the meat of an animal or the meat of a fowl - he should not partake of milk afterwards unless he waits the time for another meal, approximately six hours.95 This stringency is required because meat that becomes stuck between teeth and is not removed by cleaning.96
If, however, the meat and milk have not been cooked together, there is no Scriptural prohibition against partaking of them together (Maggid Mishneh). According to Rabbinic Law, it is forbidden to partake of them in any manner.
Even if a prohibition was not violated when cooking them together (e.g., they were cooked by a gentile), it is forbidden for a Jew to partake of the mixture. The implication is that the prohibitions against cooking the mixture and partaking of it are separate issues that do not necessarily share a connection (Maggid Mishneh).
Significantly, in his Sefer HaMitzvot, loc. cit., the Rambam explains that the prohibitions against partaking of and benefiting from milk and meat are derived from the fact that the Torah repeats this prohibition three times. Perhaps the reason the Rambam does not mention this means of derivation here is to avoid the following question being raised: Why are lashes not given for benefiting from milk and meat?
To explain: In Chapter 8, Halachah 16, the Rambam writes that one is not liable for lashes for deriving benefit from a forbidden substance. As explained in the notes to that halachah, the Maggid Mishneh explains that one is liable for lashes only when he derives benefit from the food in an ordinary manner from food. This includes only eating and not other forms of deriving benefit. Nevertheless, seemingly this should not apply with regard to benefiting from a mixture of milk and meat. For, as stated in Chapter 14, Halachah 10, in that instance, one is liable even if one does not derive benefit in the ordinary manner. Hence, it would appear that one should be liable for lashes for partaking of such a mixture.
Among the explanations given why one is not liable is that the prohibition against deriving benefit from a mixture of milk and meat is derived from an inference from a more lenient instance to a more stringent one (a kal vichomer; see Chullin 115b). And we follow the principle that punishment is not meted out when a prohibition is derived in such a fashion, only when it is stated explicitly (Sifri, Naso). If, however, there was an explicit prohibition in the Torah teaching us that deriving benefit from a mixture of milk and meat was forbidden. Seemingly, one would be liable for lashes (Lechem Mishneh).
I.e., the term gidi translated as "kid," commonly means "a kid-goat." Nevertheless, according to the Bible, it is not necessarily restricted to this meaning unless the verse specifies so explicitly, as in Genesis 27:16; 38:20.
There is a difference of opinion among the Rabbis in Chullin 116a whether the prohibition against eat the meat of a wild beast [cooked] in milk is Scriptural or Rabbinic in origin. According to some interpretations, that difference of opinion is perpetuated among the Rishonim (see Siftei Cohen 87:4). Nevertheless, the overwhelming majority of Rishonim and Achronim follow the opinion the Rambam states here. This is also the ruling of the Shulchan Aruch (Yoreh De'ah 87:3).
Significantly, in (Hilchot Mamrim 2:9), the Rambam states that the meat of a wild beast that is cooked in milk is forbidden according to Scriptural Law. In their glosses to Hilchot Mamrim, the Radbaz and the Kessef Mishneh explain that there, the Rambam is speaking theoretically: Were the halachah to follow the opinion that the meat of a wild beast is forbidden according to Scriptural law, the ruling would be such and such. The Merkevat HaMishneh, however, maintains that a printing error crept into the text in Hilchot Ma'achalot Assurot and the text should be changed to fit the Rambam's ruling in Hilchot Mamrim.
Hence were the Sages to allow one to partake of the meat of a wild beast and fowl cooked in milk, one might think that the prohibition applies only in its most literal context. As a safeguard to prevent this error from occurring, they instituted this prohibition.
This refers to eggs that already have a yolk and whites, but are still connected to the chicken's body (Maggid Mishneh). See the Turei Zahav 87:6 and the Siftei Cohen 87:9 who quote authorities who explain that even though such eggs are considered as meat in certain contexts, there is no prohibition against partaking of them together with milk.
The Rama (Yoreh De'ah 87:6) states that, after the fact, there is no prohibition against a mixture of milk from a male and meat. The Siftei Cohen 87:16 explains that this refers to milk from a male human. Even the Rama would forbid milk from a male animal according to Rabbinic Law.
Implied is that in the latter instance, one is liable for partaking of blood. The Siftei Cohen 87:15 notes that according to many authorities, one is not liable for lashes for partaking of blood that has been cooked.
Since we are speaking about meat or fat from a kosher species, the prohibition against cooking applies. In this instance, we do not say that "one prohibition does not fall upon another," because there is no prohibition against cooking a nevelah or forbidden fat.
As stated in Chapter 14, Halachah 18, and in Hilchot Issurei Bi'ah 17:8, it is only in these circumstances, that we do not follow the general principle: One prohibition does not fall upon another prohibition.
The commentaries ask: Seemingly, the prohibition against a mixture of meat and milk does add a new dimension to this prohibition, because it is forbidden to benefit from such a mixture. Why then does the prohibition against partaking of milk and meat not apply?
The Rambam attempts to resolve this question in his Commentary to the Mishnah (Keritot 3:4) by explaining that since the prohibition against benefiting from the mixture is an extension of the prohibition against partaking of it, when - as in the present instance - the prohibition against partaking of it does not apply, the prohibition against benefiting from it also does not apply.
Chullin 97a states "An Aramean chef shall taste it." Tosafot and others explain that only a chef's word is accepted. He will not lie, because if his falsification is discovered, his professional reputation will be tarnished and he will suffer a loss. We suspect that an ordinary gentile, by contrast, will lie. His word is only accepted with regard to ritual matters when he makes statements in the course of conversation, without knowing that a Jew is depending on his word.
This interpretation is not evident from the Rambam's words. On the contrary, it appears that according to the Rambam, the statements of any gentile are acceptable (see Chapter 15, Law 30, and notes). The Shulchan Aruch (Yoreh De'ah 92:1 quotes the Rambam's words. The Siftei Cohen 92:1 mentions the view of Tosafot. The Rama states that in the Ashkenazic community, the custom is not to rely on the word of a gentile in this context. Instead, we require sixty times the volume of the meat in all instances. Otherwise, both the milk and the meat are forbidden.
As will be explained (see Chapter 15, Halachah 6, and notes), our Sages received the tradition that a forbidden substances will not impart its flavor to a mixture when the mixture contains sixty times its volume.
As evident from the continuation of the Rambam's words in this and the following halachah, we are speaking of an instance where milk falls on a piece of meat that is not in the sauce. According to Rashi, the lower portion of the meat is resting within the sauce in the pot and its upper portion - on which the milk falls - projects beyond it. According to Rabbenu Yitzchak, the entire portion is outside the sauce. See Turei Zahav 92:2; Siftei Cohen 92:4. (From the Rambam's wording at the beginning of the following halachah, it would appear that he follows Rabbenu Yitzchak's position.)
Since the meat becomes forbidden, because it is meat that has been mixed with milk, tasting the mixture for milk is not sufficient. Instead, we consider the meat as a forbidden article and measure 60 times its volume. It is not possible to distinguish between the flavor of the forbidden meat and that of the permitted meat.
Once it becomes forbidden, it is considered as a prohibited entity and cannot become permitted again. Our Sages [Chullin 108b; Rama (Yoreh De'ah 92:3-4)] use the expression: "The piece becomes like carrion," i.e., as if it is inherently forbidden.
The Tur (Yoreh De'ah 82) states that it is sufficient for him to stir the mixture at the beginning. This will cause the milk to be blended throughout the entire mixture. There is no need for him to continue stirring the pot. Rav Yaakov ibn Chaviv maintains that the Rambam would also accept this position. The Rambam mentions stirring the put until the end only for stylistic reasons. This interpretation is also apparent in the Rambam's Commentary to the Mishnah (Chullin 8:3).
In his Kessef Mishneh and Beit Yosef, Rav Yosef Caro differs and maintains that the Rambam's words here should be understood literally. Unless he mixed the pot from the beginning until the end, we fear that it was not mixed well. Hence in his Shulchan Aruch (Yoreh De'ah 92:2, he quotes the Rambam exactly. The Rama, however, cites the Tur's position.
The Tur and the Rama (Yoreh De'ah 92:2) emphasize that if the person does not stir the pot immediately after the milk fell in, the piece on which the milk fell becomes forbidden. Since its identity is unknown, all the pieces are forbidden unless the entire mixture is 60 times larger than its largest piece.
Rav Yaakov ibn Chaviv and Rav Yosef Caro (in his Kessef Mishneh and Beit Yosef) interpret the Rambam's intent as analogous to that of the Tur. They maintain that the Rambam also would agree that if person waited after the milk fell on the piece, that piece - and perhaps all the pieces - become(s) forbidden.
The Maggid Mishneh offers a different interpretation, explaining that in this instance, we do not say that the piece of meat on which the milk fell becomes forbidden because we do not know which piece it is. Hence rather than have the taste of the milk affect that piece, we stir the entire mixture so that the milk will become blended into it and become nullified as explained in the following note.
The Turei Zahav 92:6 and the Siftei Cohen 92:8 follow the interpretation of the Maggid Mishneh, explaining that in this instance, the principle (Beitzah 4b): "We do not nullify the existence of a forbidden substance at the outset," does not apply. For since the identity of the forbidden substance was never established, there is no specific prohibited substance involved. Hence at the outset, the entire pot is considered as subject to being forbidden. To prevent that from happening, we stir it so that the prohibition will not take effect.
I.e., intentionally mixing the milk throughout the entire pot and thus nullifying its presence. As the Tur (loc. cit) writes, if the milk fell into the sauce, even if the person did not stir the mixture, this would be the ruling. Nevertheless, the Rambam advises the person to stir the mixture so that it will be mixed thoroughly and no trace will remain.
This applies even on a later day. According to Scriptural Law, after 24 hours, there is no prohibition. Nevertheless, according to Rabbinic Law, at the outset, one should be stringent and not cook milk in a pot in which meat was cooked previously even if it had been cooked several days beforehand.
I.e., it should be tasted by a gentile. According to the Ashkenazic custom not to rely on a gentile, we require that the contents be 60 times the volume of the pot. The Siftei Cohen 93:1 states that it would be very rare for such a situation to exist. Generally, the ratio between a pot and its contents is less than 60. Hence, in most instances, the food would be prohibited.
I.e., we are afraid that a certain amount of milk remained in the udder or that the udder absorbed a certain amount of milk. Since we do not know how much milk it absorbed, we assume that it is entirely forbidden.
The ruling regarding roasting is more lenient than the ruling regarding cooking, because when meat is roasted, any fluids it contains are discharged and flow outward without being absorbed (see Halachah 14). When it is cooked, by contrast, it stews in its juices and it and any other meat will absorb the milk it discharges.
The Shulchan Aruch (Yoreh De'ah 90:2) writes that the accepted custom is not to cook it with other meat at all and to cook it alone only after it has been cut vertically and horizontally and pressed into a wall. The Rama adds that it is Ashkenazic custom not to cook it at all.
In Chapter 15, Halachah 18, the Rambam explains that since only a Rabbinic prohibition is involved, our Sages were more lenient. Thus the Rambam interprets this ruling as being of general significance. The Rashba offers a different rationale for this ruling, explaining that since the meat of the udder is acceptable, we include it in the reckoning of 60. Thus in contrast to other instances where 60 times the amount of the forbidden substance is required, here, we require only 59.
Thus according to the Rambam, only 59 times its volume is required. This view is quoted by the Shulchan Aruch (Yoreh De'ah 90:1). The Tur and the Rama differ and maintain that the second mixture is judged more stringently than the first. They follow the rationale of the Rashba cited above. Thus they maintain at first, the udder is included in the reckoning, because its meat is permitted. With regard to the second mixture, by contrast, it is the meat, not the milk of the udder which is forbidden. Hence 60 times its volume is required.
For even if its milk does flow over other pieces of meat, they are not forbidden. The rationale is that since it has been cut open, we do not suspect that perhaps some milk remained. Since the entire prohibition is Rabbinic in origin, we are not overly stringent. The Rama states if the udder was not cut open beforehand, the meat that is lower on the spit is forbidden.
The Kessef Mishneh states that according to the Rambam, this applies even to milk that is still liquid. Since it has already undergone preliminary digestive processes, it is no longer considered as milk. See Chapter 4, Halachah 19.
Chapter 3, Halachah 13. As the Rambam states in that halachah, since the amount of skin used is minimal, we might think that no prohibition is involved, for the forbidden substance would be nullified. Nevertheless, the Rabbis ruled stringently, explaining that since the catalyst which causes the milk to curdle is forbidden, everything is forbidden.
We assume that the meat's surface absorbed a small amount of milk while it was cooling down (ibid.). Hence the surface is forbidden and must be removed. The milk does not, however, permeate beyond the surface. Therefore the remainder is permitted. With regard to the milk, it appears that there is no prohibition. The Radbaz explains that since it is not possible to remove the surface of the milk, there is no prohibition whatsoever. Other Rishonim require that the milk be sixty times the volume of the surface of the meat. The Shulchan Aruch (Yoreh De'ah 91:4) quotes the Rambam's ruling and the Siftei Cohen 91:8 states that this decision is accepted by the Rama despite the fact that this might appear incompatible with some of the other rulings of the Rama. The Turei Zahav 91:7, however, argues in favor of the view of the other Rishonim.
In previous eras, before the advent of refrigeration, meat was salted thoroughly to preserve it. Afterwards, when one desired to partake of it, he would soak it in water to remove the salt (Rashi, Chullin 112a). The Radbaz states that we are speaking about salting meat in a manner similar to the way it is salted to remove its blood. If less salt than that is used, these laws do not apply. See the Shulchan Aruch (Yoreh De'ah 91:5) which discusses these laws.
I.e., we assume that it will cause substances to be discharged and absorbed as cooking does. This is merely a Rabbinic stringency.
It must be emphasized that the comparison to cooking is not total. Generally, salting only causes the surface of the substance to become forbidden. If, however, the substance is fatty, the entire substance becomes forbidden (ibid.:6).
There is a difference of opinion among the Rabbis if this is speaking about a roasted fowl that is hot, or even one that is not hot. According to the latter opinion, it will still absorb some milk because it has become soft and permeable. The Shulchan Aruch (Yoreh De'ah 91:7) quotes the first view while the Turand the Rama mention the second.
Because the cracks in its surface or the spices will cause it to absorb the milk to a greater extent than it would otherwise. This clause appears also to be referring to meat that has been roasted. There are, however, opinions that interpret it as referring to raw meat. See Siftei Cohen 91:21.
Even to be eaten alone [Shulchan Aruch (Yoreh De'ah 97:1)]. The Shulchan Aruch, however, grants license if only a small amount of bread was prepared in this manner and thus it can be eaten at one time.
Even if they did not touch each other. Note the Shulchan Aruch (Yoreh De'ah 116) and the Turei Zahav 95:3) which mention that there is a prohibition against eating fish roasted with meat because it could cause a health problem.
For the vapors from the meat become absorbed in the bread or in the fish. In Chapter 15, Halachah 32, the Rambam rules that vapors do not cause an object to become forbidden. There is not necessarily a contradiction between these two rulings, for here we are speaking about a small oven [Radbaz, Shulchan Aruch (Yoreh De'ah 97:3). Even though, after the fact, kosher meat roasted together with non-kosher meat in a small oven is permitted, here one is not deeming the bread or fish forbidden, one is merely prohibiting that it be eaten with milk (Siftei Cohen 97:4).
Even though the kutach contains milk. The rationale is that although the flavor of the meat was imparted to the dish and from the dish, it was imparted to the fish. Nevertheless, since it went through these two intermediate stages, it is not considered significant and does not cause the fish to be considered fleishig. The Rabbis referred to this concept as nat bar nat - notain taam bar notain tam ("imparting merely flavor a second time").
It must be emphasized that nat bar nat is permitted only with regard to a mixture of milk and meat. The rationale is that both milk and meat are permitted, a prohibition only exists when they are mixed together and if one of them has been weakened to the extent that it is nat bar nat, it is not considered significant. When, however, an entity is inherently forbidden, e.g., non-kosher meat, when its flavor becomes absorbed into a dish, that dish becomes forbidden and it may not be used again for hot food (Radbaz).
The Rambam's wording implies that the meat was hot (Radbaz). This ruling applies also to hot cooked meat (Kessef Mishneh). There are opinions that maintain that this ruling also applies when the meat was cold (Radbaz).
Rashi, Chullin 111b, states that the rationale is that it is likely that there will be a small amount of fat left on the knife. Thus when the knife is used to cut the sharp food, its sharpness will cause the flavor of the fat will be imparted to it. According to this view, if the knife was cleaned or used to cut another substance first, it does not cause the radish to be forbidden [Shulchan Aruch (Yoreh De'ah 96:5); note also the dissenting view of the Rama]. (This opinion speaks of fat being left on the knife, for if there was no fat there, seemingly, this instance would resemble the concept of nat bar nat mentioned in the previous halachah.)
There are, however, other opinions (Tosafot, Sefer HaTerumot) which maintain that this ruling would apply even if the knife was clean. The rationale is the pungency of the food and the pressure of the knife cause it to absorb more than an ordinary instance of nat bar nat.
From the Rambam's wording, it appears that the entire radish is forbidden. The Shulchan Aruch (Yoreh De'ah 96:1), however, rules that it is sufficient to remove a piece a fingerbreadth in thickness. The Rama, however, mentions the Rambam's view.
The Ra'avad and the Radbaz note that the Rambam apparently had a slightly different version of Chullin 112a, the source for this halachah, than that found in the standard printed texts of the Talmud. According to the standard version, the rationale is that we fear that some drops of kutach will fall into the salt. The Radbaz adds that according to the Rambam, the prohibition applies only with regard to earthenware jugs. If they are made from metal, the material will be too dense to allow for the flavor to be drawn out.
According to the other rationale, the kutach will remain a distinct entity if it falls into the salt, but it will become mixed with the vinegar and nullified if it falls into it (Radbaz; Turei Zahav 95:16).
The requirement of this stringency for the meat of a domesticated animal is understandable, for the prohibition is of Scriptural origin. Nevertheless, according to the standard text of Halachah 4, the prohibition against a mixture of milk and the meat of a wild beast is also Rabbinic in origin. What then is the difference between the meat of a wild beast and that of a fowl? The Kessef Mishneh, however, explains that the meat of a domesticated animal resembles the meat of a wild beast. Hence it was necessary for the Rabbis to forbid it. Alternatively, Rabbenu Tam explains that the meat of a wild beast will stick to a person's mouth and hands more than the meat of a fowl.
The Tur (Yoreh De'ah 89) gives a different rationale: that because meat is fatty, its taste persists for a long time.
Ma'achalot Assurot - Chapter 10
All the prohibitions we mentioned involve living beings. There are also other Scriptural prohibitions that involve the produce of the earth. They include: chadash, kilai hakerem, tevel, and orlah.1
What is meant by chadash?2 It is forbidden to partake of any of the five species of grain3 alone4 before the omer5is offered on the sixteenth of Nisan, as [Leviticus 23:14] states: "You may not partake of bread, roasted kernels, or fresh kernels."6
Anyone who partakes of an olive-sized portion of fresh grain before the offering of the omer is liable for lashes. [This applies] in every place and at all times, whether in Eretz [Yisrael] or in the Diaspora,7 whether at the time of the Temple or when the Temple is no longer standing.8
[The only difference in observance is that] while the Temple is standing, once the omer has been offered, it is permitted [to partake of] new grain in Jerusalem. Distant places9 are permitted [to partake of new grain] after midday. For the court will not be indolent with regard to [the offering of omer] beyond midday.10 [Now] when the Temple is no longer standing, the entire day is forbidden according to Scriptural Law. In the present age, in the places where the festivals are observed for two days,11chadash is forbidden on the entire day of the seventeenth of Nisan until the evening according to Rabbinic Law.12
When a person partakes of an olive-sized portion of bread from each of roasted kernels, or fresh kernels [from chadash], he is liable for three sets of lashes,13 as [implied by the verse]: "You may not partake of bread, roasted kernels, or fresh kernels." According to the Oral Tradition, we learned that all three involve separate prohibitions.14
Whenever grain took root before the offering of the omer, it is permitted to be eaten after the offering of the omer despite the fact that it did not reach maturity until after that offering. Grain that took root after the offering of the omer is forbidden until the offering of that sacrifice the following year even though it was planted before that offering was brought. This law applies in every place15 and in every era according to Scriptural Law.
[There is an unresolved halachic difficulty in the following situations:] Grain took root after the omer. One harvested it and sowed this wheat in the ground. Afterwards, the omer of the following year was offered, while these kernels of wheat were still in the ground.16 There is a doubt whether [the offering of] the omer caused [these kernels] to be permitted as if they had been stored in a jar or it did not cause them to be permitted, because they have been nullified in the ground.17 Therefore if a person collected them and partook of them, he is not liable for lashes, but [instead] is given stripes for rebellious conduct.
Similarly, when a stalk reached a third of its growth before the offering of the omer,18 one uprooted it and then replanted it after the offering of the omer, and it increased in size. There is a doubt whether it is forbidden because of the increase in size until the offering of the omer the following year or it is not forbidden because it took root before the offering of the omer.19
What is meant by kilai hakerem?20 Sowing a species of grain or a type of vegetable together with a vine.21 [This applies] whether they were sown by a Jew or a non-Jew,22 whether they grew on their own, or whether one planted a vine among vegetables, we are prohibited against partaking and benefiting from both of them, as [Deuteronomy 22:9] states: "Lest the fullness of the seed which you sowed and the produce of the vineyard become hallowed."23 ["Becom[ing] hallowed"] means being set apart and forbidden.
One who eats24 an olive-sized portion from kilai hakerem, whether from the vegetables or from the grapes is liable for lashes according to Scriptural Law. The two can be combined to reach this measure.25
When does the above26 apply? When they were sown in Eretz Yisrael.27In the Diaspora, by contrast, kilai hakerem are forbidden by Rabbinic decree.
In Hilchot Kelayim,28 it will be explained which species are forbidden as kilai hakerem and which are not forbidden, how they become forbidden, when they become forbidden, in which situations, produce causes vines to llowed," and when they do not cause them to become "hallowed."
What is meant by orlah?29 Whenever anyone plants30 a fruit tree, it is forbidden to partake of or benefit from all of the fruit the tree produces for three years after being planted, as [Leviticus 19:23] states: "For three years, they shall be closed off for you, they may not be eaten."31 Whoever eats an olive-sized portion of such fruit is liable for lashes according to Scriptural Law.
When does this apply when one plants in Eretz Yisrael, as [the above] verse states: "When you enter the land...." With regard to the prohibition against orlah in the Diaspora, it is a halachah transmitted to Moses at Sinai32 that fruit that is definitely orlah is forbidden. If there is a doubt regarding the matter, it is permitted. In Hilchot Ma'aaser Sheni,33it will be explained which [growths] are forbidden as orlah and which are permitted.34
When there is a doubt whether produce is orlah or kilai hakerem in Eretz Yisrael, it is forbidden.35 In Syria, i.e., the lands that David conquered,36 it is permitted.
What is implied? If there was a vineyard [containing] orlah and grapes were being sold outside it, or there were vegetables sown inside it37 and vegetables were being sold outside it, [in which instance,] there is a doubt whether [the grapes or the vegetables] came from it or from another place, in Syria, they are permitted.38 In the Diaspora, even if one sees grapes being taken out from a vineyard that is orlah or vegetables being taken out from a vineyard, one may purchase them provided one does not actually see orlah being reaped or the vegetables being harvested [from the vineyard].
When there is a doubt whether a vineyard [contains] orlah or kilai hakerem, in Eretz Yisrael, it is forbidden. In Syria, it is permitted.39 Needless to say, that ruling prevails in the Diaspora.
It is forbidden40 to drink a jug of wine that is found hidden in an orchard [whose produce is] orlah. It is permitted to benefit from it. [The rationale is] that a thief will not steal from a place and hide [what he stole] there. Grapes that are hidden there are forbidden, lest they have been harvested from there and stored away there.
[The following laws apply when] a gentile and a Jew are partners in planting [an orchard]. If at the beginning of the partnership, they agreed that the gentile would benefit from the produce during the years of orlah and the Jew would benefit from it for three years when the produce is permitted afterwards, it is permitted.41 If they did not make such an agreement at the outset, it is forbidden [to make one afterwards].42 [Even when the agreement was made at the outset,] they may not make a reckoning.
What is meant [by making a reckoning]? I.e., to calculate the quantity of produce from which the gentile benefited in the years of orlah so that the Jew will benefit from exactly that amount. If they made such an agreement, it is forbidden, for this is exchanging the produce which is orlah.43
It appears to me that the laws of neta reva'i44 do not apply in the Diaspora. Instead, one may eat the produce of the fourth year without redeeming it at all. Our Sages mentioned only orlah.
An extrapolation can be made from a more stringent instance to [this one] which is less stringent. In Syria, the laws governing the tithes and the Sabbatical year apply by Rabbinic decree,45 nevertheless, the laws governing neta reva'i do not apply, as will be explained in Hilchot Ma'aser Sheni.46 Thus, in the Diaspoa,47 how much more so should [we conclude] that the laws governing neta reva'i do not apply.
In Eretz Yisrael, however, these laws apply whether or not the Temple is standing.48 Some of the Geonim ruled that kerem reva'i49 alone must be redeemed in the Diaspora before it is permitted to be eaten. There is no basis for this [ruling].50
In Eretz Yisrael, it is forbidden to eat any of the produce of the fourth year51 until it is redeemed.52 In Hilchot Ma'aser Sheni, we will explain the laws governing the redemption [of the produce], how it should be eaten, and when we begin calculating the growth of a tree with regard to orlah and [netah] reva'i.
How is produce which is neta reva'i redeemed in the present age?53 After [the produce] is collected, one recites the blessing: Blessed are You, God, our Lord, King of the earth, who has sanctified us with His commandments and commanded us to redeem neta reva'i. Afterwards, one redeems the entire crop even with one p'rutah.54 This p'rutah is then cast into the Dead Sea.55
Alternatively, one may transfer the holiness to other produce that is worth a p'rutah by saying:56 "The holiness of all of this produce is transferred to this wheat," "...to this barley," or the like.57 Afterwards, one burns the [latter quantity of produce] so that they will not cause difficulty to others.58 He may then partake of all the produce [he harvested].
Some of the Geonim ruled that even though one redeemed the produce of the fourth year or transferred its holiness, it is forbidden to partake of it until the entrance of the fifth year. This ruling has no foundation. It appears to me that it is in error. [Although Leviticus 19:25] states: "And in the fifth year, you shall partake of its produce," the intent of the verse is that in the fifth year you will partake of its produce without redeeming it like any ordinary produce in the world. One should not heed the above ruling.
What is meant by tevel? Any produce from which one is obligated to separate terumah and tithes is called tevel before one separates these portions.59 [In that state,] it is forbidden to partake of it,60 as [Leviticus 22:16] states: "And they shall not desecrate the sacraments of the children of Israel which they will dedicate to God," i.e., one should not treat them in an ordinary manner while the sacred elements that will be separated in the future have not yet been separated.
When a person61 partakes of an olive-sized portion of tevel before he separates terumah gedolah and terumat ma'aser, he is liable for death by the hand of heaven,62 as [Leviticus 22:15-16] states: "And they shall not desecrate the sacraments of the children of Israel... And they will bear the sin of guilt."
When, however, one partakes of food from which terumah gedolah and terumat ma'aser63 have been separated, but from which tithes - even the tithes of the poor have not been separated - he is worthy of lashes for partaking of tevel. He is not worthy of death. For only with regard to terumah gedolah and terumat ma'aser is the sin worthy of death.64
The warning against partaking of tevel from which tithes were not separated is included in [Deuteronomy 12:17 which] states: "You may not eat the tithes of grain... in your gates."65
In Hilchot Terumot and Hilchot Ma'aserot, it will be explained which produce is obligated to have terumah and the tithes [separated from it] and which is not, when does the obligation stem from Scriptural Law and when is it Rabbinic. When a person partakes of an olive-sized portion of produce that is tevel according to Rabbinic Law66 or kilai hakerem or orlah from the Diaspora,67he is liable for stripes for rebellious conduct.
The juices that come from produce that is tevel, chadash, consecrated to the Temple, growths of the Sabbatical year, kilayim, and orlah are forbidden as they are. One is not, however, liable for lashes for partaking of them.68 Exceptions are wine and oil that are orlah and wine that is kilai hakerem. One is liable for lashes for them just as one is liable for lashes for the olives and grapes,
There are other prohibitions involving foods applicable to consecrated entities. They are all of Scriptural origin, e.g., there are prohibitions against partaking of terumot, the first fruits, challah, and the second tithe. And there are prohibitions involving sacrifices consecrated [to be offered] on the altar, e.g., piggul, sacrificial meat that remains past its time, and sacrifices that have become impure.69 All of these [prohibitions] will be explained in the appropriate place.
The measure for which one is liable - whether for lashes or for kerait is an olive-sized portion. We have already explained the prohibition against [partaking of] leaven on Pesach and the [relevant] laws in Hilchot Chametz UMatzah. The prohibition against eating on Yom Kippur is a different type of prohibition.70 The prohibition against all products of the vine that applies to a Nazirite does not apply equally to all. Therefore, all of these prohibitions, the measure for which one is liable, and the [relevant] laws are explained in the appropriate place.
The Rambam proceeds to define each of these terms in the subsequent halachot. The prohibitions the Rambam mentions in this chapter apply universally. There are other prohibitions involving the consumption of agricultural products that apply with regard to non-priests, e.g., terumah, as explained in Sefer Zeraim and others involving the sacrifices as explained in Sefer HaAvodah (Radbaz).
These five species are commonly identified as wheat, barley, rye, oats, and spelt. As mentioned in the notes to Hilchot Berachot 3:1, there is some discussion whether these are in fact the species of which the Talmud and the Rambam speak.
Sefer HaMitzvot (negative commandments 189-191) and Sefer HaChinuch (mitzvot 303-305) include these prohibitions among the 613 mitzvot of the Torah. The Radbaz states that the Rambam mentions chadash before the other prohibitions, because it occurs most frequently, recurring every year.
In the Diaspora, where crops of grain are sometimes planted after Pesach, this prohibition could present a problem. For all grain planted after Pesach, will not be permitted until the following year. In resolution, the Rama writes that unless we know otherwise, all grain is permitted after Pesach, based on the concept of sefek-sefekah - multiple doubt. It is possible it is from the previous year's crop. Even if it is from this year's crop, perhaps it took root before Pesach and is thus permitted.
The Bayit Chadash in his gloss to the Tur (Yoreh De'ah 293) elaborates on the concept that the prohibition against chadash applies only to grain belonging to a Jew. Grain belonging to a non-Jew is not bound by this prohibition. The Turei Zahav 293:2 differs and maintains that it applies also to grain grown by a gentile. Most of the authorities respect the Bayit Chadash for his attempt to absolve most of the Jewish people from the prohibition (since by and large, the grain available in the Diaspora is grown by non-Jews) but accept the logic of the Turei Zahav. In practice, however, it is customary to rely on the leniency of the Rama.
See Hilchot Kiddush HaChodesh, ch. 5, which explains that in places where messengers from Jerusalem would not inform the Jewish community when the new month had been sanctified, the festivals are observed for two days, for perhaps the day considered as the fifteenth of Nisan was really the fourteenth.
Since the observance of the second day was instituted because there was a doubt concerning the day on which the festival should be observed, our Sages ordained that the prohibition concerning chadash should be observed by Rabbinical decree until the conclusion of the seventeenth so as not to minimize the importance of the festival. Even though there is no longer any doubt concerning the day on which the festival should be observed, we heed this prohibition to maintain our Sages' original decree (Radbaz).
All three are mentioned in one verse. Thus one might think that we are speaking of a prohibition of a general nature and we follow the principle (see Hilchot Sanhedrin 18:2-3) that lashes are not given for a prohibition of a general nature. Nevertheless, Keritot 5a explains why this instance is an exception.
The Rambam's statements have attracted the attention of the commentaries, for they represent a contradiction to his statements in Hilchot Kelayim 8:1: "One is not liable for sowing kilai hakerem unless he sows wheat, barley, and grape seeds together." The Radbaz explains that the laws governing sowing mixed species are different than those regarding partaking of them.
The Torah does not specifically mention that it is forbidden to partake of the mixed species. Nevertheless, it states that it is forbidden to derive benefit from them. There is no great derivation of benefit than eating (Radbaz). From the Rambam's wording, one would surmise that one is not liable for lashes from merely benefiting from kilai hakerem.
In his Commentary to the Mishnah (Orlah 3:10), the Rambam writes that this concept is derived from Deuteronomy 22:9: "Do not sow kilayom in your vineyard." For the only vineyard that can truly be considered as "yours," i.e., belonging to a Jew, is one in Eretz Yisrael.
The Mishneh LiMelech writes that in the present era, when the observance of the agricultural laws in Eretz Yisrael is only a matter of Rabbinic Law (see Hilchot Terumah 1:26), the prohibition against kilai hakerem is also of Rabbinic origin.
The term literally means "covered." Thus the Jerusalem Talmud (Ma'aserot 4:4) speaks of "something which covers (oral) its fruit." For that reason, a foreskin is described as an orlah, because it covers the male organ. Here also this fruit is "covered" by a forbidden quality.
As explained in Hilchot Terumah 1:3, King David conquered parts of Syria before he completed the conquest of Eretz Yisrael. Hence, these lands were not considered as part of Eretz Yisrael proper. Nevertheless, certain laws concerning the produce of Eretz Yisrael were applied there by Rabbinic decree.
I.e., one may purchase the produce even if one is certain it comes from the vineyard in question. Indeed, one may even pick the produce from that vineyard by oneself (Radbaz; Hilchot Ma'aser Sheni 10:11).
This represents the Rambam's interpretation of Bava Batra 24a. Others interpret that passage as stating that we are even permitted to partake of the wine. This is the view quoted by the Shulchan Aruch (Yoreh De'ah 294:11).
Tosafot questions: Why isn't the wine forbidden as yayin nesech, wine touched by a gentile? They reply that we assume that the thieves were Jewish. Thus if there is reason to think that the thieves are gentile, the wine is forbidden (Siftei Cohen 294:22).
I.e., the gentile takes care of the orchard in the orlah years, and the Jew in the subsequent years. He is not considered as benefiting from the produce that is orlah, because it never belonged to him.
For the crops that are orlah are considered to have become the Jew's property and he is bartering them. Rashi and Rabbenu Asher (Avodah Zarah 22a) differ and permit such an arrangement to be made. They explain that although if such an arrangement is not made at the outset, it is forbidden to make it with regard to the Sabbath, different rules apply here. On the Sabbath, it is forbidden for the gentile to perform work on behalf of the Jew. In this instance, no such prohibition exists (Siftei Cohen 294:28). The Shulchan Aruch (Yoreh De'ah 294:13) follows the Rambam's approach, while the Rama follows that of Rabbenu Asher.
This term refers to the produce of the fourth year of a tree's growth. This produce must be taken to Jerusalem and eaten in a state of ritual purity or redeemed and the money taken to Jerusalem to be used for food to be eaten there.
The Rambam's wording is somewhat misleading. The laws of neta reva'i are not dependent on the existence of the Temple. Even if the Temple is not standing, this mitzvah applies. Nevertheless, according to Scriptural Law, they apply only when the sanctity of Eretz Yisrael is intact. And according to Scriptural Law, that sanctity was nullified after the conquest of the land by the Assyrians and Babylonians. According to Rabbinic Law, however, these laws do apply in Eretz Yisrael in the present age.
The Shulchan Aruch (Yoreh De'ah 294:7) quotes opinions that state that the laws applying to neta reva'i also apply in the Diaspora, as well as the Rambam's view that they do not apply. The Tur and the Rama quote the opinion of the Geonim who maintain that these laws apply with regard to a vineyard, but not with regard to any other types of produce.
The Radbaz emphasizes that even if the fourth year passes, fruit which grew during that year is forbidden in the fifth year until it is redeemed. This is also included as one of the 613 mitzvot. The Rambam, however, lists that mitzvah in Hilchot Ma'aser Sheni.
In Hilchot Ma'aser Sheni, the Rambam explains that in the era of the Temple, the produce would be taken to be eaten in Jerusalem in a state of ritual purity (or redeemed for its value and that money taken to Jerusalem to be used to purchase food to be eaten there in a state of ritual purity). Since that is not possible in the present era, different laws apply.
A copper coin of minimal value. In the era of the Temple, it was necessary to redeem the produce for its value and add a fifth (Hilchot Ma'aser Sheni 4:1,9). In the present era, since there is no opportunity to use the money as required, a p'rutah is sufficient for one's entire harvest (Arachin 29a).
I.e., a place where no one will benefit from it. In Hilchot Ma'aser Sheni 2:2, the Rambam states that the p'rutah should be cast into the Mediterranean Sea. At times, the term Yam HaMelech which is commonly translated as the Dead Sea is used to refer to the Mediterranean. The Shulchan Aruch (Yoreh De'ah 294:6) mentions the Mediterranean. It also states that one may grind the coin into dust.
Before produce may be eaten, a person must separate bikkurim (the first fruits), terumah gedolah (a small portion - 1/40 to 1/60 of the produce) which is given to the priests, ma'aser (tithes, which is given to the Levites), and ma'aser sheni (the second tithe, which is eaten in a state of purity in Jerusalem) or ma'aser oni (the tithe given to the poor). From the tithe which the Levites receive, they must give a tithe to the priests as terumat ma'aser.
There is a question if this prohibition applies even to a priest who would later be permitted to partake of terumah. To explain: There is a discussion among the Achronim if tevel is considered as an independent prohibition or if it is forbidden because of terumah that has not been separated (see Tzaphnat Paneach; Atvan D'Oraita). According to the former view, even a priest is liable, while according to the second view, there is room for leniency.
The Ra'avad explains the Rambam's ruling on the basis of the prooftext cited in the previous halachah which puts an emphasis on "the sacraments of the children of Israel." That term refers to terumah. The Kessef Mishneh, however, notes that the second tithe is also referred to as "a sacrament." The Lechem Mishneh, however, offers a resolution.
The Maggid Mishneh (in his gloss to Chapter 8, Halachah 16) states that this is not the ordinary way which one benefits from such produce. The Lechem Mishneh explains that other juices, in contrast to wine and oil, are not considered to have the substance of the fruit.
In all other instances, it is the substance (cheftzah) that is forbidden. On Yom Kippur, the prohibition does not apply to the substance, but to the person (the gavra). He is forbidden to partake of all foods.
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