For the week ending 27 April 2013 / 16 Iyyar 5773

A Halachic Analysis of the Recent Meat Scandal Ruling

by Rabbi Yehuda Spitz
The Color of HeavenArtscroll

The recent Erev Pesach Meat Scandal of 2013 shocked the Jewish world. Featuring a private investigator, hidden cameras, and online videos, this shameful episode had all the makings of a spy novel. One of the main suppliers of kosher meat for one of the largest metropolitan Jewish areas was caught bringing unsupervised packages of meat and/ or poultry into his store at a time when he knew that the mashgiach was not around. Although consumers might take some solace in the fact that it was not horse meat they bought, and thus being a step up on much of Europe[1], nevertheless, the thought that they might have unwittingly and unknowingly eaten non-kosher meat is a tough pill to swallow.

Unfortunately, such stories have been around for a long time. Over a century ago, the famed Ridbaz, Rav Yosef Dovid Willovsky zt”l, best known for his seminal commentaries on the Talmud Yerushalmi, was chased out of Chicago (on Shabbos yet!) for his attempts to clean up the prevalent fraud perpetrated in the name of “Kosher Meat”[2]. Likewise, Rav Yaakov Joseph zt”l (R.J.J.), New York’s first and only Chief Rabbi, after being publicly shamed and discredited by the unlearned masses for attempting a similar kashrus clean up in New York, was forced into early retirement. Even so, every time another scandal occurs, world Jewry collectively cringes.

3 o’clock?

Yet, with this recent one, many were puzzled by the ruling that was publicized in the aftermath of the scandal by the Rabbonim of the certifying kashrus agency after consulting with Rav Yisroel Belsky shlit”a, Rosh Yeshiva of Torah V’Daas and posek for the OU. The Rabbonim ruled that all meat that was bought in the store before 3 P.M.on that day (Erev Erev Pesach) was considered kosher; however any meats purchased after that time was / would be considered non-kosher.

This fascinating psak was the subject of much discussion and was even featured in a Question and Answer article in a major Jewish publication[3]. The much discussed question was where the ‘magical number’ 3 o’clock came from. Furthermore, if the basis of the hetter permitting the meat purchased before that time was due to ‘rov’, a simple majority rule, as the owner was caught bringing in 8 boxes of unsupervised meat (and/ or poultry) while at the same time many other pallets of supervised meat were coming in (approximately 300) boxes[4], shouldn’t all the meat be permitted? Why the need for the cut-off time?

Although this author does not work nor speak for the kashrus agency involved (nor any kashrus agency, for that matter), I decided to shed some light on the complicated nuances of the halachos of ‘kavua’ and ‘pirush’, to enable understanding of the Rabbonim’s psak. In the words of Rav Yaakov Emden, who, when faced with a similar crisis, wrote “Everything is clearly explained in the Tur and Beis Yosef and Acharonim, and everyone agrees to the ruling of the Shulchan Aruch…there is nothing to question”[5]. The same rule applies here as well.

Pondering Pirush

There is a famous Talmudic rule “Kol D’Pirush M’Ruba KaPirush”. This means that anything that is separated, and its origin is in question, is assumed to come from the majority. An example of this would be if one finds an item lying around and there are several manufacturers of such an item, halachically we may assume that it came from the majority[6]. (The reverse applies as well). Knowledge of this dictum is what caused many to erroneously assume that this is the basis for the hetter. Since most people’s meat was already bought and taken home, they safely assumed it came from the majority, which in this instance, was kosher meat. This is why they questioned the 3 o’clock cut-off.

Yet, to anyone versed in Hilchos Taaruvos, a simple ‘rov’ would obviously be insufficient grounds to allow leniency. First of all, according to the Rema, whom Ashkenazic practice follows, even large raw pieces of meat (steak, cutlets, brisket etc.) would fall into the category of Chaticha Hareuyah Lehischabed[7], a piece fit to be served to an important guest, and are not subject to nullification, even if there is a ratio of 1000 pieces of Kosher meat to 1 treif piece. Therefore, in this instance, the mere fact that the majority of the meat was kosher cannot be the grounds to permit the meat already purchased. Although there are authorities who maintain that in a case of extenuating circumstances or great loss (and loss of meat on Erev Yom Tov for an entire community would surely qualify!) one may rely on the Shulchan Aruch’s opinion that the rule of Chaticha Hareuyah Lehischabed only applies to cooked, ready-to-eat cuts of meat. On the other hand, many other decisors disagree entirely, and others only allow use of this rationale as an additional factor to permit leniency, but not on this basis alone[8].

Kavua Questions

Additionally, the flip side of the Rule of Pirush is that “Kol Kavua K’Mechtza al Mechtza Dami[9], that as long as the question was borne in a place of permanence, majority rule is no longer in effect. The Gemara’s example of this is that of ‘Teisha Chanuyos’, nine stores selling a kosher item and one store selling a non-kosher version of the same item. In such a scenario, if one would have purchased this item from a store but is unsure of which one, he would not be allowed to rely on the simple majority. Since there is a permanent store dedicated to the selling of a non-kosher version of the same item, nonetheless, its halachic status is considered 50 - 50, and is therefore forbidden. (The reverse applies as well). So, a simple majority would not be deemed sufficient to allow everyone to eat their Yom Tov roasts.

Yet, there are subtle nuances in the halachos of kavua which still allow grounds for leniency. There are two main types of kavua: Kavua D’oraysa (a Biblical case of Permanence) and Kavua Derabbanan (a Rabbinic case of Permanence)[10]. Kavua D’oraysa is when there is an official 100% dedicated non-kosher store operating in the area (think McDonalds). Kavua Derabbanan is when some non-kosher meat gets mixed up in an otherwise kosher store, creating a ‘Taaruvos Chatichos’, a meat mix-up.

Although there are several differences[11], one of the hallmark distinctions between the two is whether the rule of Kavua Lemafraya applies.Kavua Lemafraya refers to the retroactive application of the majority-nullifying rule of Kavua. In plain English, this means that when Kavua applies (and therefore prohibiting the meat), meat that has been purchased previously might also be affected. By a Kavua D’oraysa the rule is that Kavua Lemafraya also applies[12].

However, in a situation of a Kavua Derabbanan, Kavua Lemafraya does not apply. This means that only from the time of the actual sheilah will further purchase of meat at the same store be forbidden. That is where 3 o’clock comes into the picture. According to the aforementioned article, the Rabbonim only found out about the surveillance videotapes earlier that same afternoon. They watched them then ‘until about 2:30’ and by 3:00 they decided to remove the hashgacha based on the evidence. Since the actual sheilah was only made known at that point, it is only then that the rules of Kavua took effect[13]. Since the store was up until that point known as a kosher store, it has the status of a Kavua Derabbanan, and therefore will not affect any meat or poultry previously purchased[14]. As noted by the great Ya’avetz, this psak is the halacha as codified by the Tur and Shulchan Aruch, with no dissenting opinions[15]. That is why all meat that was bought before that time was considered 100% kosher. This also explains why the new owners kashered the store afterward, as all meats remaining in the store after 3 o’clock were deemed non-kosher.

The purpose of this article is to shed some light on the seemingly mysterious 3 o’clock cut-off time which had many scratching their heads as to its significance. It should be clear to the reader that this time was far from arbitrary, and was unequivocally based in codified psak halacha. There are so many variables and rationales utilized by a Posek in arriving at a final ruling, and this author’s intention is merely to provide a peek into that process, and provide the reader with an appreciation for the sheer vastness of knowledge, and ability to apply it, that a Posek must possess. Undoubtedly, following the directives of our Rabbonim and Poskim, who toil in the study and teaching of Torah, is always the correct option[16]. May this be the last kashrus scandal that ever needs halachic analysis.

Postscript: Although the above mentioned rationale is certainly the correct one to explain the ruling, there actually are several other avenues of leniency that seem to be available in this case. For example, no one actually saw what was inside the unsupervised boxes that the proprietor snuck in, and he was recorded taking them from a different store that sold non-glatt meat and non-mehudar poultry[17]. This creates somewhat of a safek (however slight) as to the meat’s status and might possibly be considered non-vaday issur. In a situation where there is even a slight chance of non-vaday issur, several prominent decisors, including the Ya’avetz, Kreisi U’Pleisi, Chochmas Adam, and Aruch Hashulchan maintain that the rules of Kavua may not apply[18]. Additionally, it might create a safeik sfeika (case of compounded doubt), thereby upgrading the rest of the meat’s kashrus status, as the prohibition of Chaticha Hareuyah Lehischabed may no longer be applicable in such a case[19], and especially b’makom hefsed merubah[20] - which this undoubtedly was, as we are referring to an entire community, 18 hours before the onset of Pesach. Rest assured that when the Rabbonim wrote that everyone should “enjoy their Yom Tov meat”, there was ample halachic reason to do so.

[2]See the introduction to the Ridbaz’s sefer on Chumash, Nemukei Ridbaz, at length, where he decries the deplorable level of kashrus in Americaat that time. A clear picture of the horrific conditions of Chicago slaughterhouses at that time was showcased in Upton Sinclair’s classic ‘The Jungle’, including a mention of cows ‘slaughtered in a certain way’ labeled by the ‘kosher rabbi for the orthodox’ (in the same factory as pigs!), with nary a mention of distinction between the kosher and non-kosher. In fact, it was due to the public outcry engendered by this book that the Federal Meat Inspection Act of 1906 was passed.

[3]Ami Magazine (Issue 114, April 10, 2013, pg. 48).

[4]As per above mentioned interview with the certifying agency’s president.

[5]Shu”t Sheilas Ya’avetz (vol. 1, 57). He further defends this ruling in the very next responsum, (58). The location of the Tur, Beis Yosef and Shulchan Aruch he was referring to is Yoreh De’ah 110, 5.

[6]This klal is found throughout Shas, including Brachos 28a, Yoma 24b, Yevamos 15b, Kesuvos 15a, Kedushin 73a, and Zevachim 73b. Obviously, when finding unwrapped meat in the middle of the street, it would still be assur m’derabbanan due to the prohibition of ‘bassar shenisalem min ha’ayin’, ‘meat that was hidden from the eye’. See Shulchan Aruch (Y”D 110, 3) Shach (Y”D 110, 20), Biur Heitiv (ad loc. 11) and Y”D 63 at length.

[7]See Yoreh De’ah 101 at length for the full parameters of this halacha. Generally, if a piece of non-kosher food is mixed in with two or more identical pieces of kosher food, it is battel b’rov - it becomes nullified within the majority. However, if the non-kosher food is aChaticha Hareuyah Lehischabed, a piece fit to be served to an important guest, it is not battel. Regardless of how many pieces are involved, whether three or three thousand, the entire mixture is forbidden, and none of the pieces may be eaten. Perhaps this will be discussed at length in a future article.

[8]The Chasam Sofer (Shu”t Y”D 91, cited in Pischei Teshuva Y”D 101, 4) maintains that since many Rishonim, including the Rashba (Toras HaBayis Haaruch, Bayis 4, Shaar 1, pg. 13b), the Ran (Chullin36b s.v. v’garsinan), the Ra’ah (Bedek HaBayis, Bayis 4, Shaar 1, pg. 17a), and the Rambam (Hilchos Maachalos Asuros Ch. 16, 5) whom the Shulchan Aruch bases his psak on, and other Poskim including the Pri Chadash (Y”D 101, 12) rule like the Shulchan Aruch’s shitta, that one may definitely rely on it b’makom hefsed merubah, if there is any sort of additional safek involved. Other Ashkenazic authorities who rule similarly include the Shvus Yaakov (Shu”t vol. 3, 68), the Maharsham (Daas Torah, Y”D 49, 19), the Ya’avetz (Shu”t Sheilas Ya’avetz vol. 1 end 58, s.v. ode) and the Aruch Hashulchan (Y”D 101, 15). However, the Pri Megadim (Y”D 101, S.D. end 8 & Klalei Hora’ah 6) is uneasy to accept this leniency and concludes tzarich iyun. Other authorities, including the Pri Toar (Y”D 101, 6), Yeshuas Yaakov (ad loc. 7), and Chochmas Adam (53, 9), rule exclusively like the Rema. Additionally, the Beis Shlomo (Shu”t Y”D vol. 1, 122), Rav Shlomo Kluger (Haghos Chochmas Shlomo to Y”D 102), and the Yad Yehuda (Y”D 101, pih”a 9 & piha”k 16) all maintain that an Ashkenazi may not rely on the Shulchan Aruch’s shitta regarding this halacha, even b’makom hefsed merubah.

[9]As with the Rule of Pirush, its flip side psak, the Rule of Kavua, is at least equally represented throughout Shas, including Yoma 84b, Pesachim 9b, Shekalim 19b, Yevamos 119a, Kesuvos 15a, Kedushin 73a, Bava Kama 44b, Sanhedrin 79a, Chulin 95a, Zevachim 73b, and Nida 18a. The rule of Kavua based on the pasuk in Parshas Shoftim (Devarim Ch. 19, 11) ‘V’arav lo v’kam’. The various nuances of these rules are dealt with extensively by the Tur and Shulchan Aruch and their commentaries in Yoreh De’ah (110, 3 - 5).

[10]There is actually a third type of Kavua, that of Taaruvos Chanuyos [see Rashba (Toras HaBayis Ha’Aruch, Bayis 2, Shaar 2, pg. 30a), Ra’ah (Bedek HaBayis, Bayis 4, Shaar 2, pg. 29b s.v. ode nirah), and Bach (Y”D 110, 6)]. This refers to when one buys a piece of meat from a kosher store, and a treifa was later found in one of the stores, but it is unclear which store it is. The Shach (ad loc. 14 & 17) maintains that this case has both the chumros of Kavua D’oraysa and Kavua Derabbanan and therefore the piece would be assur since we would say Kavua Lemafraya, while the Pri Chadash (ad loc. 13) argues that this would maintain the status of Kavua Derabbanan. [Interestingly, they both cite the Rashba’s words as proof to their shittos.] While the Chochmas Adam (63, 1 & Binas Adam Shaar HaKavua 1 & 2) does not seem to take sides in this machlokes, the Pri Megadim (ad loc. S.D. end 14) rules that b’makom hefsed meruba may one rely on the Pri Chadash, while the Aruch Hashulchan (ad loc. 42 & end 47) argues that we may not add any more cases to Hilchos Kavua, and therefore we may be lenient even without hefsed meruba.

[11]Other potential differences between Kavua D’Oraysa and Kavua Derabbanan that are cited (and debated) by the Poskim include whether or not Chazal were gozer shema yikach min hakavua, the status of pirush lifaneinu, and how far the Kavua prohibition extends. For example, what the halacha is after pieces from a Kavua got mixed up in another Taaruvos (or more).

[12]This psak is not like the minority opinion of the Ran (Chullin, Perek Kol HaBassar 33b s.v. amar Rav) who maintains that even by Kavua D’Oraysa there is no din of Kavua Lemafraya. As noted, the halacha does not follow his shittah.

[13]Although some question why this ruling did not take effect from the time of the actual surveillance video several weeks earlier, which would potentially have a far greater impact on the kashrus status of many people’s meat, as then at the time of the actual ruling, the store should have already been considered a ‘Taaruvos Chanuyos’ (due to the safek on the store’s reliability) and Kavua status applied earlier, halachically it would not have. As mentioned previously, even if that was the psak of the sha’as noda [which it is not - see R’ Akiva Eiger (Y”D 99, 7, quoting the Yerushalmi (Arlah Ch. 2, end halacha 1), Sefer Ha’Aruch M’Shach (Y”D 94, s.v. b’Yerushalmi), Yad Yehuda (99, pih”a 25 s.v. haRash, piha”k 33), Darchei Teshuva (99, 97), Haghos Chasam Sofer (ad loc.) and Shu”t Tuv Taam V’Daas (Mahadura Kamma, 156, Hosafa) whom, regarding the issue of chozer v’nayur, discuss whether one may lenient by relying on the fact that there was noda chaveiro. To the best of this author’s knowledge we undoubtedly don’t find noda lehachmir based on a random person to be machmir on a baal davar!], certainly b’makom hefsed meruba the poskim rule that we would still consider it a Kavua Derabannan and Kavua Lemafraya would not apply (see footnote 10).

[14]Although some were worried that there possibly may not have been a ‘rov’ on certain cuts of meat, and wondered how could it be possible that certain parts of the same cow might have been ruled kosher and other parts treif, this question has already been dealt with at length by the Poskim. The Pri Chadash (Y”D 110, 23) ruled that even if this is a potential, if distant, possibility, even so it does not affect the halachos of Kavua: What was purchased before the sheilah is still permitted and what was purchased afterwards is still prohibited. This psak was echoed l’maaseh by later authorities, including the Kreisi U’Pleisi (ad loc. Pleisi 13 s.v. v’hinei) and the Aruch Hashulchan (ad loc. 49).

[15]Tur & Shulchan Aruch Y”D (110, 5).

[16]See Gemara Rosh Hashana (25b) and Rashi’s commentary to Devarim (Parshas Shoftim Ch. 17: 9, s.v. v’el hashofet), who explain the need for the Torah to delineate the authority of contemporary leaders.

[17]Although the proprietor obviously cannot be trusted that said boxes merely contained a specific brand of non-mehudar chicken, especially as the company he specified has not been producing chickens in almost 10 years, nevertheless it does create somewhat of a safek and might not be vaday issur.

[18]Shu”t Sheilas Ya’avetz (vol. 1, 58, s.v. u’va’emes & aval), Kreisi U’Pleisi (Y”D 110, Pleisi 12 s.v. ach) Chochmas Adam (Binas Adam, Shaar HaKavua 41), and Aruch Hashulchan (Y”D 110, 52).

[19]See Yoreh De’ah 110, 9 at length. The Shulchan Aruch and Taz (ad loc. end 14, s.v. klal) maintain that a safek by a treif piece of meat that gets mixed up in a Taaruvos is not considered a safek sfeika, and one may not utilize this rationale to permit the meat. However, the Rema (ad loc. 8 & 9), the Shach (ad loc. 62 & Nekudos HaKessef 15), and Pri Chadash (ad loc. 46) argue that when the reason it is not battel is only m’derabbanan, it is considered a safeik sfeika and we may rule leniently. [See Aruch Hashulchan ad loc. 82 for a hesber.] The Pri Megadim (ad loc. end M.Z. 14 s.v. u’mah)and the Ya’avetz (Shu”t Sheilas Ya’avetz ibid. end 58, s.v. ode) rule that only by a Davar Sheyesh Lo Mattirim, the Shach et al. would be machmir; yet, if the safek derabbanan we are referring to is the machlokes Shulchan Aruch and Rema (see footnote 8) if it is considered a Chaticha Hareuyah Lehischabed, then certainly it can be metztaref to be considered a safek sfeika.

[20]As explained at length in footnote 10.

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