(2017/5778)

 It was the New Jersey celebration of Yaakov Douek’s marriage to his distant relative Sari Gabbay in July 2013.  Yaakov and Sari had married in Israel and had come to the United States to celebrate with the Douek family and friends in the local area.  Yaakov’s father Ezra is a professional caterer and prepared a festive meal replete with grilled steaks. 

As I arrived at the event I discovered that there was an intensive discussion underway regarding the proper manner of preparing the food.  Ezra had turned on the fire with which the Nochri workers would cook the steaks, in order to obviate the prohibition of Bishul Akum, the rabbinic prohibition to eat food cooked by a Nochri[1]. 

Ezra’s cousin, Rav Ben Zion Gabbay, who served for years as a senior Kashrut specialist working for Hacham Ovadia Yosef, objected to this means of food preparation.  He argued that Sepharadim require that the steaks must be placed on the fire by a Jew in order to obviate the issue of Bishul Akum.  Merely turning on the fire is insufficient, he argued.  After insisting on following the Sephardic practice, Rav Gabbay proceeded to place the steaks on the fire, after Ezra assented to his request. 

Upon learning of this intense discussion, I was quite surprised (as was Ezra).  After all, Rav Ovadia Yosef in Teshuvot Yechave Da’at (5:54) presented what seemed to me to be a cogently reasoned responsum explaining why Sephardic Jews can rely on the Ashkenazic standard of merely turning on the fire.  While Hacham Ovadia concluded “HaMachmir Tavo Alav Bracha”, it is preferable to be strict, Rav Yosef gave the right to Sepharadim to be lenient.  If Ezra had every right to rely on merely turning on the fire, why did Rav Gabbay insist on placing the food on the fire? 

Background to the Issue - Three Debates

There are three basic disputes regarding Bishul Akum that are relevant to this discussion. 

Debate #1 - Turning on the Fire

The Gemara (Avoda Zara 38b) rules that if a Jew played a significant role in the cooking of the food, the Bishul Akum decree does not apply. The Rishonim debate how far we may extend this leniency. Rav Yosef Karo (Yoreh Deah 113:7) rules in accordance with the Rashba (Torat HaBayit end of Bayit no. 3), Ran (Avodah Zarah 38a) and Teshuvot Rivash (no. 514) that if a Jew merely turned on the flame but did not participate at all in the cooking process then the Bishul Akum prohibition does apply. The Rama (ibid.) disagrees and rules that even if the Jew merely turned on the fire this avoids the Bishul Akum prohibition.  He follows the rulings of the Ra’avan (Avodah Zarah no. 303) and the Mordechai (Avodah Zarah ch. 2). 

Debate #2 - Nochri Cooking at a Jew’s Home

Tosafot (Avoda Zara 38a s.v. Ela) cites two opinions whether the Bishul Akum prohibition applies when a non-Jew cooks the food in a Jew's home. Rabbeinu Avraham ben David rules that the prohibition does not apply because the reasons for the prohibition do not apply. Only when the non-Jew prepares the food in his own home is the concern for intermarriage relevant. Rabbeinu Tam rejects this view stating that we do not find that Chazal made such a distinction. The Halacha, both according to Sephardic and Ashkenazic standards, follows the view of Rabbeinu Tam (Y.D. 113:1).

Debate #3 - Nochri Workers at a Jew’s Home

Some Rishonim and Acharonim rule that the Bishul Akum decree does not apply to a non-Jew whom you employ. They reason that only in a relationship of peers does the concern for intermarriage constitute a concern. The Rama (Y.D. 113:4) rules that one may rely on these lenient views BeDi’eved (i.e. that initially one should not rely on these opinions, but if the food was already cooked one may rely on the lenient opinions and eat the food). The Shach (113:7) the Aruch Hashulchan (Y.D. 113:4) and Chelkat Binyamin (113:40 and Bi’urim s.v. U’BeDi’eved Yeish Lismoch) express serious reservations about relying on the lenient opinions even BeDi’eved. 

Maran/the Mechaber (Rav Yosef Karo; Y.D. 113:4) first cites the lenient view and then cites the stricter view.  Hacham Ovadia writes in many places[2] that in such a situation Maran considers the second opinion as the primary one.  Thus, Rav Yosef Karo rules that the Bishul Akum restriction applies even to food cooked by a Nochri employee. 

Rav Ovadia Yosef - Teshuvot Yechave Da’at (5:54)

Rav Ovadia Yosef in Teshuvot Yechave Da’at (5:54; published in 1983) notes that Israeli restaurants and hotels whose Kashrut supervison is provided by Israel’s Chief Rabbinate follow the lenient Ashkenazic standard[3].  He continues and observes that Sephardic Jews regularly patronize these establishments and no one raises an objection to the fact that this practice runs counter to the view of Rav Yosef Karo, to which Sephardic Jews subscribe. 

Hacham Ovadia, in turns develops a Halachic justification of this practice.  He notes that it is a situation of Sefeik Sefeika, a double doubt in which one can be lenient.  One doubt is that perhaps turning on the fire suffices to eliminate concern for Bishul Akum.  The second doubt is perhaps the prohibition does not apply when the food is prepared in a Jewish home.  There is even a third Safeik, perhaps the prohibition does not apply if the Nochri is an employee. 

Hacham Ovadia concludes that since Bishul Akum is a rabbinic restriction one may rely on the combination of these three considerations -- a non-Jewish employee may cook the food for a Jew in the latter’s home if the Jew turned on the fire.  Rav Ovadia ends by stating that nevertheless, HaMachmir Tavo Alav Bracha, encouraging those who adopt the stricter approach. 

Criticism of Rav Yosef’s Ruling - Rav Ben Zion Abba Shaul and Rav Messas

Two leading Sephardic Halachic authorities, Rav Ben Zion Abba Shaul and Rav Shalom Messas strongly reject Rav Ovadia’s lenient ruling.  Rav Messas (Teshuvot Shemesh U’Magein 2 Y.D. 11) notes that Maran rules stringently regarding each prong of the Sefeik Sefeika.  Citing the premier Sephardic authority Rav Yosef Chaim of Baghdad (the Ben Ish Hai; Teshuvot Rav Pe’alim 2 Y.D. 7 and 3 Y.D. 9), Rav Messas insists that it is not legitimate for Sephardic Jews to rely on a Sfeik Sefeika when both its sides run counter to rulings of Maran. 

Thus, since Maran forbids food cooked by a non-Jew if the Jew only a lit a fire, food cooked by a Nochri in a Jewish home and food cooked by a Nochri employee, Rav Messas disqualifies Hacham Ovadia’s Sefeik Sefeika since all of its sides run counter to Rav Yosef Karo’s explicit ruling. 

Rav Messas adds that a close reading of the Shulchan Aruch reveals that Maran does not accept Rav Ovadia’s approach.  The Shulchan Aruch forbids food cooked by a non-Jewish employee but does not qualify this by saying that it is permissible if a Jew lit the fire.  Alternatively, Maran did not write that a Jew lighting the fire is sufficient if the Nochri cooks the food in a Jew’s home and serves as an employee of that Jew.  Accordingly, Rav Messas outright rejects the view of Hacham Ovadia[4]. 

Hacham Abba Shaul (Teshuvot Ohr L’Tzion no. 2, introduction §2) argues that even if one believes that a Sephardic Jew may rely upon a S’feik S’feika where both prongs run counter to the ruling of Maran, this applies only if Maran does not completely dismiss the opinion.  In our situation, since Maran in his Beit Yosef commentary to the Tur (Y.D. 113, s.v. VeLo Asru) does not even cite the opinion that permits Bishul Akum if a Jew lights the fire, it cannot be used as a prong in a Sefeik Sefeika.  The fact that Rav Karo does not record the opinion demonstrates that he rejects it and its use as a component of a Halachic decision is not legitimate for Sephardic Jews. 

Conclusion

Next week iyH we will present how Hacham Ovadia and his son Hacham Yitzhak on the one hand defend their views from the critique of Rav Messas and Hacham Ben Zion, and on the other hand, modify their position regarding this issue in light of the cogent critique. 

[1] My essay, archived at http://www.koltorah.org/ravj/12-16%20Bishul%20Akum.htm, presents the basic parameters and scope of this prohibition. 

[2] One example is Teshuvot Yabia Omer 2 Orach Chaim 16. 

[3] Two Sephardic food industry professionals, Nissim Douek and Shalom Shushan of Congregation Shaarei Orah, report that the Sephardic standard is very invasive, awkward and cumbersome to implement in a professional cooking setting.  This explains why even the Badatz, the Chareidi Beit Din of Yerushalayim which adopts a very strict stance regarding Halacha, follows (or followed) the lenient approach (as noted by Rav Yosef, Yabia Omer 9 Y.D. 6:2).   

[4] Rav Messas is particularly incensed at establishments with a “Kosher L’Mehadrin” designation whose Bishul Akum standards do not meet Maran’s requirement of placing the food on the fire.