The halachic issues that arise when a Jew sells non-kosher items have been explored for centuries. While this article is by no means exhaustive, we will thoroughly examine the considerations involved in some practical and relevant situations.1

A Jew may not sell non-kosher items for the purpose of consumption.2 So it is permitted, for example, to own a pet shop, since the unkosher animals are not being sold for food.3 It is also okay to sell non-kosher merchandise that one did not intend to acquire, such as a fisherman who finds some non-kosher fish in his nets.

This prohibition only applies to foods which are forbidden Biblically, such as non-kosher animals or fish, meat cooked with dairy products, or meat which is not slaughtered in accordance with Jewish law. Foods that are only rabbinically forbidden, such as kosher meat that is mixed (but not cooked) with dairy, or kosher chicken cooked with milk, are not included.

The Reasons

What is the logic behind this commandment to abstain from doing business with non-kosher merchandise?

According to 13th century halachic authority Rabbi Shlomo ben Aderet (the “Rashba”), the prohibition stems from the concern that being occupied with non-kosher food all day may lead one to eat the item.4 To distance one from even coming into contact with forbidden foods, the Torah forbids doing business with them entirely. Rabbi Shabtai Kohen (the “Shach”), 17th century halachic authority, adds the concern that if other Jews see the businessman handling non-kosher merchandise, they may assume he eats it himself.56

The Sources

Regarding non-kosher species, we are told, “They are impure for you,”7 closely followed by, “And they shall be impure for you.”8 Since we know from the first verse that we are not permitted to consume them, according to the Jerusalem Talmud the second verse must be adding an additional layer—the prohibition against deriving benefit from the non-kosher species by selling them.9

The Babylonian Talmud, however, attributes the prohibition to the verse regarding insects, “And they shall be disgusting to you.”10 The Talmud understands the extra words “and they shall be” to indicate that they should remain forbidden not just from food, but from deriving any benefit whatsoever through selling them.11

Biblical or Rabbinic?

Since the Talmud derives this law from a verse in the Torah, it would seem that the prohibition is Biblically mandated, as the majority of halachic authorities—most notably Tosafot12 and Rabbeinu Asher (“the Rosh”)13—maintain. Other authorities, however, including Rabbi Israel Isserlin (“Terumat Hadeshen”) and Rashba14 maintain that the prohibition is rabbinically mandated and the Talmud’s derivation from the verse is merely finding an asmachta.15 An asmachta is when the rabbis base a law on a verse which they understand to be pointing to that enactment, but it does not imply that the law is Biblically mandated.

The Upshot

Whether a commandment is Biblical or rabbinic in nature has significant ramifications. In order to understand why, let’s examine the various types of laws in Judaism and the rules that apply to them. Generally, we do not look to the reasoning behind mitzvot to determine if and when they apply. For example, G‑d commanded the Jewish people to observe Shabbat as a day of rest, but we do not say that whatever feels restful may be done. Rather, we observe the commandments as they were given to us, without questioning their premise. Rabbinic enactments, however, work differently, because the rabbis instituted their laws to safeguard the laws of the Torah. In certain circumstances, if there is no concern that the Torah law will be transgressed, the safeguard is deemed unnecessary and there is room to say that the law does not apply.

Let’s apply this to our situation. If the prohibition against doing business with non-kosher items is Biblical, it applies to all cases. So even in a situation where the Rashba’s concern—that the individual may come to taste the food—does not apply, the prohibition stands. If, on the other hand, the law is rabbinic, then we may be able to reason that in a scenario in which a Jew is dealing with non-kosher merchandise in a position that will never lead him to consume them or be suspected of eating them, he will be allowed to do so.

Rabbi Shlomo Eiger rejects this approach, invoking the concept Lo Plug Rabanan (“the rabbis did not differentiate”).16 This means that there are instances in which the rabbis prohibited something even in situations which do not have the characteristics that motivated them. In this case, the rabbis forbade trading non-kosher food even if it will not bring one to eat from it or be suspected of eating from it. The overwhelming majority of halachic opinions however, do not support his view.

There is, however, a third approach which several authorities follow.17 Although generally we do not judge commandments which are Biblically mandated based on their reasoning, this prohibition can be regarded as an exception. The law against doing business with non-kosher merchandise is unique in the sense that there are scenarios in which the prohibition is lifted. For example, when a Jew just comes across the forbidden item—without actively seeking it—as mentioned earlier. This exception is derived from the verse which states that non-kosher items “shall be disgusting for you.” The extra wording of “for you” implies that there are times when one may benefit from non-kosher animals, which the rabbis understood to refer to cases when a Jew chances upon a non-kosher animal.

The Torah appears to leave the application of this law in the hands of the rabbis, who, these authorities claim, only applied it in situations which may lead to a Jew consuming the non-kosher food. According to this approach, even if we rule that the prohibition is Biblical, it only applies when there is room for concern that the Jew will eat the prohibited food.

The Chatam Sofer writes that since this issue is unresolved, we rule stringently.18 He maintains that one may not trade non-kosher items even if there is no chance he will eat them, and one may not work with non-kosher merchandise even if he does not own it. This, however, is the most stringent view, and when judging cases which are not clearly forbidden, many halachic authorities rely on the more lenient approaches, as will be demonstrated below.

1. Owning a Non-Kosher Establishment

Owning a non-kosher establishment clearly contains both issues: doing business with non-kosher foods and the concern that one may come to eat from them. Even if the owner does not physically involve himself with the day-to-day operations, and the food is entirely cooked and managed by employees, to the extent that there is absolutely no concern that he may come to eat the non-kosher food, it is still not permitted.19

Since the majority of halachic authorities maintain that the prohibition is Biblical, and it is not clear if the Torah prohibition applies unilaterally or only in cases where there is legitimate concern that the Jew may eat from it, we judge the case to be a safek d’oraita - a Biblically mandated law which is in doubt - which is always dealt with stringently.

2. Waiting Tables for a Non-Kosher Restaurant

Working as a waiter or chef for a non-kosher establishment allows much more room for leniency, because the employee does not own the merchandise or benefit from its sale. He or she is simply paid a fixed salary.

There is also little concern that the waiter would eat the food, explains Rabbi Moshe Feinstein, because that would constitute stealing and likely cost him his job if caught (presumably this would not apply in situations where it is acceptable for waiters to eat on the job).20

Moreover, a worker does not choose what type of merchandise he or she is going to deal with; the owner decides. Sometimes he may be instructed to work with forbidden items, but that is not definite. As such, we can consider this case to be one in which the Jew chances upon the forbidden items, which, as mentioned above, is permitted.21 For these reasons, combined with the fact that the prohibition may only be rabbinic (which allows us to rule leniently in a case of doubt), many halachic authorities allow one to work in a non-kosher restaurant.22

3. Sales Representative

A sales representative neither owns the merchandise nor handles it. It is therefore entirely permissible to serve as a broker or salesman for a non-kosher establishment.23

4. Owning Stock in Non-Kosher Companies

Owning stocks in a public company clearly does not contain either concern. The stock owner is not in the position to sample non-kosher food, nor would people suspect him of eating it.

But since the prohibition may well be Biblical, and we are unsure whether the Torah prohibition applies to all situations or only when there is a chance one may eat the food, owning stocks may still present a halachic issue. Indeed, Rabbi Yitzchak Yaakov Weiss (“Minchat Yitzchak”) asserts that one may not own stocks in a non-kosher company if it will allow him to have any sort of say in the management of the company (for example, if he can attend shareholder meetings from time to time and present an opinion).24 Rabbi Ovadia Yosef takes a more lenient approach. He reasons that the cumulative doubts surrounding this prohibition allow us to be lenient.25 The Mishneh Halachot follows the same line of reasoning as Rabbi Ovadia Yosef.26 He adds that there is further room for leniency because even if the stockholder does have voting rights within the company, if he suggests that the company no longer sells non-kosher merchandise he will not be listened to. It emerges then that the sale of non-kosher merchandise is being done against his will, which he is not held accountable for, and is permitted to profit from.27 Thus one would be allowed to buy as many stocks as he likes as long as it will not allow him to have a definite say in the running of the company.28

Since each case carries its own intricate details, it is important to consult a knowledgeable rabbi before venturing into any non-kosher food-related business.