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QUESTION

Riverdale, NY

Dear Rabbi Linzer,

You previously addressed the the satus of  keilim after making macaroni and cheese with non-hekhshered butter. I’d like to ask a similar question with regard to a keli in which one cooked with Tablet-K cheese. I am assuming one does not rely on Rabbeinu Tam’s leniency, particularly given the Rema’s position in YD 115:1 that gevinat akum makes keilim prohibited. What if one is a roommate and the keilim belong to someone else? Assuming that any new food cooked in those keilim (which are no longer ben yomo) uses cheese with a proper hashgachah, can one consider that bedieved and kosher (based on Taz YD 115:12) if cooked by the roommate who owns that pot? Could one even be allowed to use those keilim directly? Thank you.

ANSWER

I will address your question in parts.

A. Prohibition of Cheese

The Gemara (Avodah Zarah 35a) gives many reasons why the cheese of non-Jews is not kosher, and does not clearly land on any one of them. The most persuasive is that they used the rennet of neveilot (kosher animals slaughtered not according to halakha) to cause the cheese to coagulate, and then the whole cheese became forbidden (presumably on the principle of ma’amid – something that gives form is not batel. See Mishnah Torah Forbidden Foods 3:13 and 9:16).

Tosafot (Avodah Zarah, 35a, s.v. Chada), however, cites Rabbeinu Tam as positing that the reason that the cheese of non-Jews is prohibited (which he identifies as a concern for the milk being exposed to snakes) was no longer relevant, and thus this cheese is permitted. He also cites Geonim of Narbona who ruled that the reason for the prohibition was the concern of animal rennet, and since in their locale only plant rennet was used, the cheese would be permissible.

Rambam (Forbidden Foods 3:14) rules that the problem with such cheese is the use of non-kosher rennet. He then cites “a number of Geonim” who rule, against those Geonim cited by Tosafot, that although cheese in their day was already made with a vegetable substitute, the cheese remains forbidden. By attributing this position to “a number of Geonim,” Rambam might be suggesting that his opinion is that the cheese is permitted. Nevertheless, the overwhelming consensus of the poskim (see Magid Mishnah, Kesef Mishnah, and others) is that Rambam sides with this position and rules that the cheese would remain forbidden.

The reason to forbid the cheese even in places where they only use vegetable rennet is the claim that, like many rabbinic edicts, this one is absolute, and not contextual. In other words, the concern for animal rennet was what led to the rabbinic prohibition, but when the prohibition was ruled on, this reason was only historical background, and the ruling was simply cheese of non-Jews is forbidden. This is the general principle that a rabbinic edict that was adopted by vote cannot be overridden even if the reason is no longer applicable. The evidence for this is that the Gemara speaks about the prohibition in terms of a gezeira and not merely a contextual concern, and the multiplicity of reasons given for the prohibition indicate that the reason behind it is uncertain, and the focus is on the edict itself, not on the reason that might be informing it.

This formal, non-contextual approach, which forbids the cheese regardless of circumstances, is the overwhelming dominant one in the Rishonim and poskim. In addition to Rambam, Beit Yosef (YD 115) records that almost all Rishonim rule against Rabbeinu Tam, including Rashba, Semag and Semak. There is even an attempt to claim that Rabbeinu Tam only meant his position theoretically, and not as a practical ruling. Beit Yosef concludes his analysis thusly,

וגם כי בכל שאר מקומות ישראל ששמענו שמעם נוהגים לאסור ואינם מבחינים בין מעמידים בפרחים למעמידים בקבה שאסור לפרוש מכלל ישראל ולפרוץ גדרן של ישראל קדושים אשר גדרו אבות העולם חכמי משנה ע”ה.

In addition, in all places where Jews live that we know about, the practice is to forbid the cheese, and they do not distinguish between cases where they use vegetable rennet and ones where they use animal rennet. It is forbidden to separate oneself from the community and to break through the fences of the holy community of Israel which the great early sages on the Mishnah established.

In citing these various communities, Beit Yosef is bringing both evidence that the ruling is that cheese is categorically forbidden, but also – implicitly noting the diverging lenient opinion – is tying the prohibition to a universal practice to forbid. Following the first reason, in the Shulchan Arukh (YD 115:2) he rules that cheese is always forbidden, regardless of the circumstances. Rema, focusing more on the second reason that it is the custom of communities which has dictated this practice/ruling, states that the practice is to forbidden, and one is not allowed to diverge from the practice. He also adds that in places where there was a long-standing practice to permit, it would be permitted.

Following these ruling, the prohibition of cheese – both through ruling and practice – is deemed to be absolute and not given to contextual considerations. Nevertheless, some have argued against this ruling, and choose to embrace the more minority opinion that the prohibition would not apply today. In addition, there are those who have a generations-long tradition in their homes to permit such cheese, and following Rema’s emphasis on tradition, would also allow it. This, Rav Schechter writes in Mipeninei HaRav (p. 197), that Rav Soloveitchik had just such a long-standing practice, and that it was known that he ate Kraft cheese in his house.

Tablet-K gives a hekhsher on a wide variety of cheeses that have never had any other hekhsher. This is because they adopt the above position, and rule, like the small minority of poskim, that cheese nowadays does not need a hekhsher (they do not have a long-established practice, like Rav Soloveitchik did, to back this position up). Given the strong consensus of the poskim that rule that this is forbidden, and the wide-availability of kosher cheese particularly in the U.S., it is hard to find justification to rely on this position. Add to that the concept of “breaking away from the community” is very alive in this case, since such a practice to eat non-hekhshered cheese is seen as breaking away from the norms of the Orthodox community.

B. Pot Used to Cook Cheese of Non-Jews

There are debates when it comes to various rabbinic food-prohibitions whether the Rabbis extended their prohibition to include the pots, and whether this applies even when it is an eino ben yomo.

Does the prohibition of “taste” which gets absorbed in the pots apply to rabbinic prohibitions?  Logically, it should depend on the type of prohibition:

  1. Those that are categorical (non-contextual) and that focus on the kashrut of the food (e.g., our case of cheese), should be seen as standard non-kosher food, and the pot should be forbidden.
  2. Rabbinic prohibitions that are kashrut-related and more contextual (for example, milk of non-Jews which, according to some poskim, only is a problem when non-kosher animals are present). Here there might be a basis to be more lenient in certain cases, since this is based on the practical question of whether there is something mixed in, and not a formal, categorical rabbinic prohibition.
  3. Rabbinic food prohibitions that are not kashrut-related, such as bishul akum, which is about limiting relationships between Jews and non-Jews, should not be a problem at all, because the food itself is not the issue.

These distinctions are somewhat adopted by the poskim. In the latter case of bishul akum, we find a debate in the Rishonim whether the pots are a problem. Those who say they are not, emphasize that the concern of interaction with non-Jews is irrelevant in this case (see Shakh YD 115:14). Shulchan Arukh (YD 113:16) cites both opinions in this case, but seems to default to the opinion that the pots are forbidden, although others hold that they are permissible.

When it comes to milk and cheese, Rema (YD 115:1), based on Rashba, forbids the pots in both cases, while acknowledging that there could be a reason to permit it in the case of milk, which is only forbidden due to a doubtful mixture. However, because of milk’s more doubtful status, some poskim are more lenient in the case of eino ben yomo (Darkhei Teshuva 115:18).

 

C. General Use of Pots That Are Not Ben Yomo

A simple application of all the above would have us conclude that a pot used to cook cheese that was not Jewish-supervised is considered not kosher and cannot be used to cook other products.

That is certainly the proper conclusion – barring perhaps truly exceptional cases – for when the pot is ben yomo. However, when it is not ben yomo things might be different.

Some general background. The rule is that using a pot that is ben yomo – that has been used within 24 hours for cooking non-kosher food – is forbidden and forbids the food as it imparts the taste of the non-kosher food in the walls of the pot into the food that is being cooked. When more than 24 hours have passed, the pot is eino ben yomo. The taste that goes into the food being cooked is considered bad taste and will not make the food in the pot forbidden. However, the Rabbis nevertheless forbade using the pot even in this case, lest one come to use it when it is ben yomo (See Avodah Zarah 75b-76a and Shulchan Arukh YD 122:1-2).

Let us now consider 3 scenarios when the pot is eino ben yomo. We will call the roommate who uses Tablet-K cheese, Karen, and the one who does not, Nora. (1) Can Nora herself use the pot to cook the food? (2) Can Nora eat from the food that Karen cooked for herself? And (3), can Nora eat from the food that Karen cooked for her (for Nora)?

  1. Nora herself using the pot. If the pot is אינו בן יומו, then we are dealing with a gezeira (do not use an eino ben yomo pot lest you come to use a ben yomo pot) on top of a rabbinic prohibition, which could be deemed as a type of a גזירה לגזירה, and thus not prohibited. (Rema’s ruling that using such a pot is forbidden might then be limited to cases when the pot is ben yomo.)

This issue is debated in the poskim both specifically in the case of cheese (see, for example, Shiyurei Berakhah YD 115 and Darkhei Teshuva 115:21) and by rabbinic prohibitions in general, including wine (see Taz  YD 137:7, Pitchei Teshuva YD 122:2, Noda BeYehudah Tinyana YD 51, Chakham Tzvi 75). The debate here is pretty evenly weighted between those who permit and those who forbid. Those who make a point of forbidding in the case of cheese, argue that the prohibition of cheese is weightier than a standard rabbinic prohibition. This is a curious argument, given that some have raised questions as to its prohibited status nowadays in general.

It would thus seem to me that given that major poskim permit using an eino ben yomo pot when it absorbed something that is only a rabbinic restriction, that when necessary one could use such a pot once it is eino ben yomo. This ruling is also based on the fact that there are  questions raised as to the forbidden status of cheese in the contemporary context, and although communally we have clearly adopted the position that it is forbidden, this fact can be used as an extra basis for leniency in a case like this.

  1. Nora eating from the food that Karen cooked for herself. This is definitely permitted. As stated, although one may not, at the outset, use the pot, any food that was cooked in the pot is kosher, and this is true even for Karen. Thus, while Karen might have violated a rabbinic restriction of using the pot, but both she and Nora can eat from the food (Shulchan Arukh YD 122:2, 6).

Beit Yosef does quote Rashba who rules that if the pot was used bemeizid, with knowledge that it had been used for non-kosher food and disregard for the rabbinic restriction, then the food is forbidden to everyone for whom it was cooked. This matter is debated in the Rishonim and Acharonim, with the majority of poskim taking the side that the food would be forbidden in such a case. However, in our case, it is hard to argue that this case constitutes meizid. Karen is presumably relying on the Tablet-K hekhsher, and believes it to be permissible and, indeed, there are those who would argue that it is so. Thus, the food is permissible to both Karen and Nora.

  1. Nora eating from the food that Karen cooked for Nora. The Shulchan Arukh rules, based on Rashba, that it is forbidden to ask a non-Jew to use the pot to cook something for you (YD 122:6). Just as you cannot use the pot yourself, asking someone to do it makes that person your shaliach, your agent, and it is like you yourself are doing it. There is some discussion in the poskim whether the case of a person cooking for you is like a case of asking the person to do it (Pitchei Teshuva 5). However, in my opinion, this is a hard argument to make. Since you did not make a request of that person, they are in no way an extension of you. They cooked in the pot, you did not.

How is this relevant to our case? Assuming Nora cannot use these pots herself (see #1), then Nora also cannot ask Karen to cook for her using these pots, that would be like she was doing it herself. However, if Karen cooked for Nora, Nora can eat the food, since: (1) many poskim say this is not like Nora cooked it; (2) Even if Nora had cooked it, it would be permissible once cooked, since it is not meizid, and (3) It is possible that it is even permissible for Nora to cook for herself.

 

D. Conclusion

In conclusion – if using a pot that is eino ben yomo, then it is definitely permissible for Nora to eat food that Karen cooked for herself or that Karen cooked for Nora. This is based, simply, on the principle that while an eino ben yomo pot should not be used, once used, the food cooked in it is permissible. And while there are those who would forbid the food in a case of meizid, there is no basis to characterize this case as such.

Regarding Nora herself using the pot –the prohibition of cheese is only rabbinic, and some even question its applicability nowadays (hence the Tablet-K hekhsher, although this goes against the strong norms of the Orthodox community). Hence, when necessary, one could rely on those poskim who rule using an eino ben yomo pot is permissible for rabbinic restrictions.