Shabbos 133 דבר שאין מתכוין revisited and bugs in vegetables


In previous posts, we have discussed the famous rule that when performing a permitted activity, one does not need to be concerned about it being accompanied by an unintended  forbidden activity, so long as that forbidden activity is not פסיק רישיה  (inevitable.)
For example, one is permitted to drag a bench along the ground even though it might make a ditch while being moved, seeing as this is not inevitable.
We have also shown that this leniency applies not only on shabbos, but also in other areas of halacha.
For example, a Nazir is permitted to scratch his beard even though some hair might fall out. This is because his intention is not to remove hair, but rather simply to scratch his beard, and the hair removal, though likely, is not inevitable.
We have also questioned whether the exemption of מתעסק, another category of unintended melacha, would apply to someone who intends to eat a fruit and unintentionally lands up swallowing an insect with it.
Though the rabbinic requirement to perform reasonable checks before eating fruit that are commonly infested is certainly not waived by such an exemption, in cases where checking sufficiently is impossible or involves extreme exertion, such an exemption could be very helpful, at least in combination with other reasons for leniency.
Even more helpful than this leniency which might mitigate the halachik concerns but would not permit the action לכתחילה,would be showing that we can apply the leniency of דבר שאין מתכוין  to this situation, seeing as such actions are permitted even לכתחילה.
Let us formulate it as follows:
A person wants to eat a raspberry. He has fulfilled the basic obligation to check it for insects, but has been told that they often hide in inaccessible places or camouflage so well that checking and removing them all is close to impossible, or would take so much time that it would simply not be viable.
The person intends to perform a permitted action- eating raspberries, which the Torah permitted.
There is a concern that while performing this permitted action, he might land up eating a bug, which is biblically prohibited (by multiple transgressions.)
It is presumably not inevitable that he will eat the bug, as there might not be a bug there, or it might have crawled or fallen out before he eats it.
 
(Some might argue this is actually a case of ספק פסיק רישיה  , seeing as if there is indeed a bug, one will definitely come to eat, and there is indeed a well-known debate whether ספק פסיק רישיה  has the same permitted status as דבר שאין מתכין  or is forbidden like פסיק רישיה .
However, even one argued that it was indeed פסיק רישיה , if would certainly be a פסיק רישיה דלא ניחא ליה  (inevitable but unintended result that one derives no benefit from at all, which according to some opinions is permitted and according to the more accepted stringent view is only rabbinically forbidden, making this a ספק פסיק רישיה דלא ניחיה ליה  about which we should be able to apply the rule of ספק דרבנן לקולא , or even a ספק ספיקא, given the views that both ספק פסיק רישיה  AND פסיק רישיה דלא ניחיה ליה  are permitted.  )
Surely we can apply the principle of דבר שאין מתכוין מותר and allow one to eat the fruit, seeing as one has no intention to eat the bug, if it is indeed there?
However, when one examines this more carefully, it is not a typical case of דבר שאין מתכוין, but more similar in some ways if anything to מתעסק.
In classic דבר שאין מתכוין, one intends to do a permitted action like dragging a bench and is concerned about a possible DIFFERENT secondary prohibited action, such as digging a groove.
In our case, one intends to perform the permitted action of eating a fruit and is concerned that one will come to apply the SAME action to a prohibited object, namely the bug.
(In Brisker terminology, in typical דבר שאין מתכוין, one intends to perform a מעשה של היתר and is concerned about a secondary מעשה של אסור.
In our case, it is the same מעשה one is concerned about, and the issue is the חפצא של אסור (prohibited object) on which the same מעשה will fall.)
In order to apply the leniency of דבר שאין מתכוין  which is already a חדוש (novel idea,) one would need to find a precedent for its application even when we are dealing with the same action, namely eating, an action one clearly intends to do, and the only lack of intent is for the secondary application of this same intended action to an unintended object, namely the bug.
This would still be different to מתעסק  in that the forbidden eating (the bug) would be secondary to the intended permitted eating (the fruit), not in place of it (intending to eat something kosher and eating something non-kosher [the issue of נהנה  aside])
I believe that we find exactly the precedent we are looking for on our daf!
Our daf discusses why it is permitted to perform a bris when there is a leprous lesion on the area about to be cut.
There is a biblical prohibition against cutting off such a lesion, and we have concluded that because there is also a positive command to avoid doing so, the normal rule of עשה דוחה לא תעשה  (a positive command pushes aside a negative one, cannot be applied to permit the bris.
Instead, the view of Rabbi Yoshiya is brought who learns this from a passuk.(the stressing of the word “בשר” – even if it has a lesion.)
The Gemara asks why this is necessary, seeing as it should be a case of דבר שאין מתכוין!
One has intention to cut off the ערלה (foreskin) in order to perform the mitzva of bris mila, and the cutting off of the lesion is only an unintended secondary action that accompanies it!
The Gemara answers that the permissive verse is still required seeing as this is an example of פסיק רישיה- an inevitable forbidden result.
We see that if not for the concern of פסיק רישיה (for example if the lesion was not on the site of bris but close to it,) this would indeed be a case of דבר שאין מתכוין.
Yet when we examine the case, we see that this is similar to the case of the fruit and the bug- one wishes to “cut” the ערלה  and the SAME action, namely “cutting”, is also likely to be unintentionally applied to a forbidden object, namely the צרעת  (lesion.)
If the rule of דבר שאין מתכוין did not apply to such a scenario, the question would not even begin, the Gemara would at least have given this as the reason it does not apply.
It indeed seems to follow from this Gemara that the leniency of דבר שאין מתכוין indeed applies also when the forbidden secondary action involves the same מעשה (act) as the permitted one!
It thus seems to follow that so long as one has fulfilled the rabbinic requirement to check commonly infested fruit before eating them, one should be permitted to eat it even if there is a real concern that some bugs might still remain.
This could even apply when checking is biblically required, such as when the majority of the species are known to be infested, so long as there is no פסיק רישיה.
If so, we can ask why there is even a rabbinic requirement to check fruit at all? Why not just rely on the leniency of דבר שאין מתכוין in the first place, something which no contemporary poseik I am aware of seems to suggest?
I believe that the answer lies in the way that the various Rishonim understands the prohibition of removing a leprous lesion.
The Rashba notes that the case on our daf does not appear like דבר שאין מתכוין- he actually says that it is more like מלאכה שאינה צריכא לגופא  seeing as one intends to perform  the action of cutting but not for the purpose of removing the lesion , rather in order to perform the מילה.
His classification of this as מלאכה שאינה צריכא לגופא  requires its own analysis but it is his answer that is most relevant here- he says that the prohibition from the Torah is not simply to cut the lesion but rather to intentionally purify himself by removing the lesion.
Seeing as he is cutting for the sake of the Mitzva of Milah and not with intention to purify himself, he has no intention for the prohibited action at all- there is a primary action of cutting off the ערלה  and a secondary unintended action of purifying himself- if this was not פסיק רישיה, it would thus be a classic case of דבר שאין מתכוין.
On the other hand, if there was indeed a prohibition of cutting off the lesion, and not of purifying oneself by so doing, this would not be דבר שאין מתכוין but rather מלאכה שאינה צריכה לגופא and thus prohibited.
This definition of the prohibition of removing a leprous lesion is  a huge chiddush, which the Rashba no doubt has his own proof for, and it is clear that according to this approach, this case can no longer serve as a precedent for our case with the fruit and the bugs.
What is also clear though, is that this is not the way most authorities define this prohibition- the Rambam, for example (Sefer haMitzvot 308 and Tumat Tzaraat 10/2) , and the Chinuch( Mitzva 584) define the prohibition simply as removing the signs of leprosy, ie the lesions.
Similarly, the Ritva brings 2 alternative answers to the Rashba’s question, which does not take this approach at all, and in fact suggests, in the name of the Ramban, that this is indeed a case of דבר שאין מתכוין, seeing as intention is to cut the milah, not the lesion, and the lesion is not all over the area of the מילה- almost exactly like our case with the fruit and the bug!
As such, defining our case as דבר שאין מתכוין seems to be subject to a dispute amongst Rishonim, and there is little wonder why Poskim are loathe to rely on it לכתחילה .
Indeed, the Rashba is amongst the most stringent of the Rishonim regarding the requirement to check even species that are not mostly infested but only have a מעוט המצוי  (common minority) of members infested, unlike Rashi, Tosfos, and possibly even the Rambam, who seem to hold that the requirement to check only applies where the majority of a species is infested (See my Hebrew Iyun for more on this.)
As common practise is to follow the Rashba, it seems that we cannot be lenient and  rely on דבר שאין מתכוין in the first place.
Once however, reasonable checks have been performed, the views that this is indeed דבר שאין מתכוין  certainly seems weighty enough to allow one to eat the fruit, even if there is still a concern of undetected bugs being present, even more so in conjunction with the many other reasons (for a different discussion) to be  lenient.
These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.
 

July 2013 survey of winter strawberries in Johannesburg

Johannesburg Winter STRAWBERRIES found by us to be BUG-FREE!

I performed a survey with two experienced mashgichim this Friday with strawberries in Johannesburg, South Africa:

3 boxes of strawberries were bought from Woolworths, Fairmount, and 3 boxes from Freshfellas, Glenhazel, both good quality suppliers .

We were interested in establishing whether any of these strawberries were infested with any insects, in particular the much talked about thrips, after various cleaning methods were followed.

As a special incentive, the mashgichim were offered R20 for every insect that they found during the survey.

Before the checks were performed, outdoors in good sunlight, with a magnifying glass for verification only, 3 methods of cleaning were used:
For each supplier:
i. One box was simply rinsed well under a steady stream of water after the tops were cut off
ii. The second box was soaked in soapy water and rinsed a second time after method one was followed
iii. All the strawberries from the third box were brushed over individually after methods one and two were done

After the cleaning, both mashgichim inspected every single strawberry from all 6 boxes, in good light, using a magnifying glass to verify if anything suspicious was indeed a bug, looking carefully for the small whitish thrips.
I myself inspected a large percentage of the strawberries from the first box (method 1)
The results were as follows:

Woolworths:

1. Box 1 : Method 1- NOT ONE BUG FOUND
2. Box 2: Method 2 – NOT ONE BUG FOUND
3. BOX 3: METHOD 3- NOT ONE BUG FOUND

Freshfellas:
1. Box 1: Method 1- NOT ONE BUG FOUND
2. Box 2- Method 2- NOT ONE BUG FOUND
3. Box 3- Method 3- NOT ONE BUG FOUND

https://www.facebook.com/photo.php?fbid=544555172272368&set=a.494325060628713.1073741825.476148969112989&type=1&stream_ref=10

Anyone volunteering to repeat this experiment in other cities and countries?

It is important to note that it was  winter in Johannesburg- it is possible, though it would need to be proven, that results in summer would be different

p.s.- see reports re clean followup summer survey result in March 20124!

Forbidding a whole species should not be an option

Banning any fruit or vegetable is NOT an option

“Behold, I have given you every seed bearing herb, which is upon the surface of the entire earth, and every tree that has seed bearing fruit; it will be yours for food.”
[Beraishis 1/29]

I often wonder why our sages never banned any of the many species that Kashrut organizations claim are too “infested” with bugs to be permitted.

The thought came to me today that the answer is simple:

There is a well known rule in Halacha that although the Sages have the authority to forbid things that the Torah never forbade, in order to strengthen Torah law (Rabbinical transgressions) , they do NOT have the authority to forbid things which the Torah EXPLICITLY permits. [Taz Y.D. 117/3]

In the parsha this week, the Torah explicitly permits eating ALL species of fruit and vegetables!

So whereas checking commonly infested species before eating is required, banning an entire species is not an option.

https://www.facebook.com/photo.php?fbid=581514328576452&set=a.494325060628713.1073741825.476148969112989&type=1&stream_ref=10

Let Kashrus Authorities not venture where even our Sages didn’t have the authority to go!

 

Shabbos with Rav Oppenheimer Shelita

Shabbat with Rabbi Oppenheimer in Buenos Aires!

A great highlight of our time in Buenos Aires was spending Shabbos Vayigash with the unofficial “Chief Rabbi of Argentina”, Rabbi Daniel Oppenheimer Shelita.

Head of a leading Torah school, Rov of the leading Ashkenazi community in the city, and the head of South America’s largest Kashrus Organization, Ajdut Kosher, this tzaddik of a man is also literally one walking Mussar Sefer who serves the food in his home himself with his wife, like Rabban Gamliel in the Mishna.

Everyone in town seems to know and love him, and he has time for everyone.
What man of this stature would come out at midnight to meet some strangers from South Africa at a local restaurant just to say hello and help us with Shabbos plans.

An oldstyle graduate of the Mir Yeshiva, this Talmid Chochom is really someone special!

Johannesburg Beth din relaxes strawberry checking rules

loaded from Feb 2014 via facebook page
Johannesburg Beth Din relaxes requirements for strawberry cleaning and checking, and permits use in establishments again!

In an email just sent out, the Kashrus department writes

“After extensive testing and the application of relevant halachic principles, the Beth Din has revised the checking/cleaning methods for strawberries.

There are three changes from the previous method. First, it is no longer necessary to sponge the strawberries down. Second, they need not be vigorously agitated in the water; just some light “swooshing” will suffice. Third, there is no need to cut them in half to look inside for worms.

The new method is as follows:

1. Cut off (don’t pull off!) the green leaf with about 1mm of the fruit.
2. Cut off any mushy parts as well as deep folds.
3. Soak the strawberries in very soapy water for 3 minutes.
4. After the soaking, the strawberries must be agitated in the water
5. Carefully wash the entire surface of each strawberry under a stream of cold water”

We commend Johannesburg on their open approach to halachic kashrut, and searching for the truth, whether it leads to stringency or leniency, and are sure that further research will reveal that many more of the extreme measures currently becoming “normal” in the world are totally unnecessary and against the Torah spirit of “Lachem Yiheye Leochla”

 

Hechshers on chocolates and camel’s milk

Camel milk in chocolates

Popular chocolate brands in south Africa recently lost their hechsher due to the local factories closing down and the products now being imported from the Middle East, where the Johannesburg Beth din is unable to supervise the products.

Whats the big deal? could ingredients really have changed?

well for one, not only is camels milk very common in that region, but chocolate is now being produced from it as well.

In the absence of any reliable supervision, one certainly cannot assume anything

 

Strawberries Survey March 2014- johannesburg

Johannesburg high quality strawberries still clean in summer!

a recent March Survey by Halachic Kashrus found Johannesburg “Woolworths” summer strawberries to be clean of bugs after vigorous washing

A followup to our winter survey last year was performed this March.

3 Mashgichim each checked 3 boxes of strawberries, 2 from woolworths, and 1 for Freshfellas, after vigorous washing under cold water.

Not one bug was found in any of the strawberries.

as samples came out clean after washing, there was no need to test them after soaping, which appears to be unnecessary based on this and last year’s sample.

This was admittedly a small sample, but based on two suppliers and 30 strawberries, and together with last year’s sample of 60 strawberries, we find it pretty convincing that strawberries bought from upmarket supplier Woolworths in Johannesburg can be presumed bug free after the tops are cut off and they are vigorously washed with water- without any soaking in soap!

this is not “psak halocho” but fact reporting, and shows that assumptions about insect infestations need to be regularly checked, and not just assumed to be accurate!

anyone with recent surveys that show precise conclusions to the contrary should please let us know urgently!

 

Bishul Akum and Fish- the Sushi element

Bishul Akum and Sushi quality Fish

There is no prohibition of Bishul Akum with foods that are normally eaten raw

High quality salmon, tuna, and other Fish is now commonly eaten raw by many as sushi and might now fit into this category

As many people still will not eat raw Fish at all, the above is still a grey area, but if your Help cooks your scottish salmon before you turn on the stove, dont forget to tell your Rabbi its sushi quality- it might just Help!

 

 

Why the big deal-Introduction

It is a biblical offense to eat “Sherotzim” (literally- creeping things)  , and one who intentionally eats one could transgress up to 5 different prohibitions.

sherotzim are a broad category that includes insects, worms, rodents and other species with short or no legs. These are divided into three main categories:

i. sheretz ha’of  (flying sherotzim), such as bees, flies, mosquitoes, hornets etc

ii. sheretz hamayim (water sherotzim), such as water-borne worms and insects, and water  mammals such as dolphins and seals

iii. sheretz ha’aretz  (land sherotzim), such as snakes, mice, all insects , etc

Not all sherotzim are actually forbidden by the Torah- insects and worms that grow in a fruit once it has been detached from the ground and have not yet left the fruit  are in fact permitted, and this distinction has relevance to later discussion on the subject.

As many types of produce tend to be infested with forbidden insects and worms, it is therefore sometimes  necessary to check such produce before eating it in order to avoid unintentionally consuming forbidden sherotzim.

 

There are 3 categories of such produce:

 

i. “Rov Muchzak betolaim”- If the majority of produce has been shown to be infested with halachically forbidden sherotzim  , it is generally agreed that there is a biblical prohibition to eat the produce before one has checked it, and that if one is unable to check  or clean the produce in a way that removes this majority of infestation, it is very hard to permit such produce. This will be the topic of a future post, Imyirtse Hashem.

 

ii. “Miut haMatzui”- If there is a significant minority of produce that is known to be infested with forbidden sherotzim, then although one a biblical level, one is permitted to follow the rule of “majority” and eat the produce without checking, there is a Rabbinic obligation to check the produce before eating if possible- where not possible, one may eat without checking. The definition of ” Miut haMatzui” will be the subject of a seperate post, but it is most commonly accepted to be 10% of portions eaten at one time.

iii. muchzak naki- if  less than a “miut hamatzui” is known to be infested, there is no need to check the produce at all before eating it and if one happens to unknowingly swallow a sheretz in the course of eating permitted produce, this is considered “misaseik”  [unintentional transgression] and one is not liable at all.

 

 

[based Y.D. 84]]

 

[ All Halacha blogs are summaries of my own learning and  subject to further self-editing  and user- correction- they are not psak halacha, unless specifically classified as such, and are for the purpose of study and discussion only]