Rabbi Jachter's Halacha Files
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Yom Kippur            10 Tishrei 5765              September 25, 2004              Vol.14 No.3


<< Part 1<<

Pat Akum: Part 2 - Varieties of its Observance and its Application to the Aseret Yemei Teshuvah
by Rabbi Chaim Jachter

In last week's essay, we outlined the range of opinions regarding the observance of the rabbinic edict forbidding the consumption of Pat Akum (bread baked by a Nochri). We cited four primary opinions in the Rishonim and classic Poskim regarding this edict. Some rule that this edict fully applies with no exceptions. Other Rishonim believe that this edict was rescinded and does not apply if one obtains the bread from a Palter (professional baker). Compromise opinions permit Pat Palter if no Pat Yisrael is available. A lenient modification of this approach permits eating Pat Palter of a Nochri even if Pat Yisrael is available, if the Pat Palter is superior to the Pat Yisrael. This week we shall review the application of the Pat Akum edict in the modern context and the preference to avoid Pat Palter during the Aseret Yemei Teshuva.

Application to the Modern Era - Four Possible Leniencies for Factory Produced Bread
Rav Moshe Feinstein (ad. loc.) notes (in 1962) that most observant Jews adopt the lenient approach of the Rama. A defense of this practice beyond the classic leniency of Pat Palter appears in a ruling of Rav Moshe that is cited by Rav Nata Greenblatt and Rav Menachem Genack in Mesorah 1:94. Rav Moshe implies (this seems not to be a full endorsement of this practice, rather a possible avenue of leniency; see Teshuvot Igrot Moshe Y.D. 4:48) that even those who are strict regarding Pat Palter might be lenient regarding factory produced bread. Concern for social interaction and intermarriage is entirely irrelevant when purchasing factory produced bread, as there is no contact between the baker and the purchaser. There is room, by contrast, to be strict regarding the Palter discussed in the classic sources, as there is contact between the purchaser and the Palter, so there is some concern for intermarriage.
One might argue, however, that "Lo Plug Rabbanan," that rabbinic decrees apply even when the reasons for their enactment do not. Rav Moshe suggests that Chazal's edict never applied when the bread is baked using industrial equipment that is not used in a home setting. Chazal's enactment does not apply to industrial baking, since such equipment is never used for baking in a context where there is contact between the baker and purchaser (home or bakery). Interestingly, Rav Eliezer Waldenburg (Teshuvot Tzitz Eliezer 8:15:1:4) presents a similar lenient consideration in the context of the prohibition to use medicine on Shabbat. However, Rav Shmuel Wosner (Teshuvot Sheivet Halevi 6:108:6) clearly rejects Rav Moshe's line of reasoning, at least in the context of Bishul Akum (the prohibition to consume food cooked by a Nochri).

Safek (Possible) Pat Akum
One may suggest (based on Diyunei Halacha page 582) two other approaches to further defend those who adopt the lenient approach (although the author of that Sefer encourages adopting the strict approach to this issue, especially during the Aseret Yemei Teshuva). The first of these approaches is that although the major accepted Kashrut organizations in this country adopt the lenient position regarding this issue, some Mashgichim make the effort to render the bread that they supervise as Pat Yisrael. (However, Rav Menachem Genack, Rav Yaakov Luban of the OU, and Rav Daniel Senter of the Kof-K informed me that only a minority of the Mashgichim do this).
The Shulchan Aruch (Y.D. 112:9) rules in accordance with the Rambam (ad. loc.) and Tosafot (Avoda Zara 38b s.v V'ata) that it is extremely easy to render bread as Pat Yisrael. He rules that as long as a Jew engaged in even the most minimal participation in the baking process, such as adding a stick to the fire (see Chelkat Binyamin 112 pp.34-36 for a full discussion of whether this is only Bediavad or even Lechatchilah), the bread is considered Pat Yisrael. Indeed, it is related that Rav Yisrael Salanter would make every effort to throw a toothpick into the oven used by the local Nochri baker from whom Jews purchased bread, in order that the bread that the Jews of that locale ate would not be Pat Akum. Interestingly, some major Kashrut agencies have developed methods utilizing modern technology that are analogous to the classic adding of a stick, thus rendering the bread as Pat Yisrael. Moreover, Rav Elazar Meyer Teitz (of Elizabeth, N.J.) once told me that the ovens in some bakeries are never intended to be extinguished. Thus, once a Jew makes even a most minimal contribution to the fire, any bread baked in such an oven might be considered Pat Yisrael indefinitely (see Shulchan Aruch Y.D. 112:10, Chelkat Binyamin 112:97, and his Tziyunim number 279).
Accordingly, even if the Kashrut agency does not certify the bread as Pat Yisrael (because they cannot guarantee that it is Pat Yisrael, as they only periodically inspect the factory), it is still possible that the bread is Pat Yisrael. It is thus possible to be lenient, following the rule of Safek Miderabbanan Lekula (one may be lenient in case of doubt if only a rabbinic prohibition is involved), as noted by the Shach (Y.D. 112:20, and see Darkei Teshuva 112:68). We should note that this lenient possibility might be relevant only if there is a considerably strong possibility that the bread is Pat Yisrael (see Tosafot Ketubot 9a s.v. Ve'iba'it Eimah and Shach Y.D. 110 Kelalei Sefeik Sefeika 33). The Kashrut agency that supervises the bread would be able to make such a determination.
A prominent Rav told me, though, that in the context of Pat Akum even a small chance might qualify as a Safek (see Darkei Teshuva ad. loc. which might be interpreted in this manner; however, Rav Binyamin Cohen told me that he is not aware of any of the Poskim who explicitly articulate this idea). Perhaps it is appropriate to hope that the major Kashrut agencies will evolve to the point where they will request that their Mashgichim contribute to the fire in some meaningful manner. They will thus render the products they certify as Pat Yisrael or even Safek Pat Yisrael, which the Shach specifically permits even according to the strict opinions regarding Pat Yisrael. Perhaps technology might be developed that will allow the Mashgiach to remotely turn on a heating element in the oven of a Kosher certified factory, even though it is only visited for inspection on a monthly basis.

Indirect Baking (Koach Sheini)
A third possible avenue of leniency may be relevant regarding factory produced bread. In a factory, the bread is produced entirely by industrial machinery, and the Nochri workers have very minimal involvement in the actual baking of the bread. Based on Chullin 16a, one could argue that only the very first breads that are baked in such circumstances are considered Pat Akum. The rest of the bread that is produced is considered bread produced by an industrial machine (and not Pat Akum) because of the remote connection between the baking of the rest of the bread and the Nochri who set the process in motion (Ko'ach Sheini; see the Rabbinical Council of America's Torah journal Hadarom (72-73:60-61), where I quote a similar lenient approach from Rav Yosef Dov Soloveitchik in the context of Chalav Yisrael). One might be able to assume that the factory-produced bread that one purchases is from the Rov (majority) of breads that are not considered Pat Akum (based on the principle of Kol Deparish Meiruba Parish, see Shulchan Aruch Y.D. 110:3).
However, this lenient approach may be questionable, as even the classic process of baking is accomplished by machine (the oven), with the baker merely setting the baking process in motion. Thus, the action of baking seems to be attributed to the one who started the process in motion, even though his connection to the actual baking is only Ko'ach Sheini. We may respond that in modern industrial machinery, the connection between the baking of almost all of the bread and the one who sets the baking process in motion is even more remote than it is in the classic baking process. Therefore, the Halacha does not consider the bread to have been baked by the one who started the industrial baking process.
A precedent for such an approach might be based on those Poskim who disqualify machine-baked Matza because of the remote connection between the one who sets the process in motion and the Matza-baking process (see the Poskim cited in Teshuvot Yechave Da'at 1:14). Moreover, many of the Poskim (Teshuvot Achiezer 3:69 and Chazon Ish Orach Chaim 6:10) who accept machine Matza are lenient because they believe that in the context of Matza baking, the Halacha only requires Lishmah (that the Matza be baked for the purpose of the Mitzva of Matza). It does not, however, require Ko'ach Adam (that the Matza be created by force of an observant Jew). Thus, even though these authorities accept machine-baked Matza for use at the Seder, they do not consider the Matza to be baked by the observant Jew who set the baking process in motion. Similarly, it is possible that bread that is baked in factories using industrial equipment is not considered Pat Akum.

Bread Worthy for Dignitaries (Oleh Al Shulchan Melachim)
A fourth lenient approach regarding factory baked bread is the concept of "Oleh Al Shulchan Melachim." The rabbinic edict that forbids eating food cooked by a Nochri (Bishul Akum) applies only to food that is "fit for a king's table" (Oleh Al Shulchan Melachim; Avoda Zara 38a and Shulchan Aruch Y.D. 113:1). The Acharonim debate (see a summary of the debate in Mesorah 1:86-89) whether this term is defined as something worthy for a king to eat even at an ordinary occasion, such as his breakfast, or whether it refers to food that is worthy to be served at a state dinner. Rav Yosef Dov Soloveitchik rules that the Bishul Akum prohibition applies only to food that is worthy to be served at a state dinner. Rav Hershel Schachter is quoted as ruling that the Bishul Akum prohibition applies even if the food is worthy to be served at a Shabbat table.
It is possible that the Pat Akum edict does not apply to factory produced bread since it is not Oleh Al Shulchan Melachim (according to the lenient interpretation of this rule). However, this suggestion is based on the assumption that the leniencies that apply to the Bishul Akum edict apply to the Pat Akum edict as well. Indeed, we are much stricter about Bishul Akum than about Pat Akum. For example, the Palter leniency does not apply to Bishul Akum (see, for example, Shulchan Aruch Y.D. 112:6). Thus, a leniency that applies to Bishul Akum should apply to Pat Akum as well. Indeed, the Chelkat Binyamin (page 9, Biurim s.v. Shemeikilim and page 26 Biurim s.v. Kichlich) applies a leniency that appears only in the context of Bishul Akum to Pat Akum. Rav Genack commented to me that the Rishonim (cited in the Encyclopedia Talmudit 4:657-658) who believe that the Pat Akum edict predated the Bishul Akum edict would probably reject the idea of applying Bishul Akum leniencies to Pat Akum. They believe that the Pat Akum edict fundamentally is not characterized or controlled by the Bishul Akum edict, and therefore a leniency that the Poskim articulate in the context of Bishul Akum does not necessarily apply to Pat Akum.
Furthermore, many Poskim explicitly or implicitly state that the Eino Oleh Al Shulchan Melachim leniency does not apply to Pat Akum (see Chelkat Binyamin 112:12, Tziyunim 112:112:46, and Biurim 112 p. 5 s.v. Vegam Eino). However, Teshuvot Avnei Neizer (Y.D. 1:92) is inclined to rule that the Eino Oleh Al Shulchan Melachim leniency does apply to Pat Akum as well. Thus, it is possible to use this argument as a lenient consideration regarding a food that is essentially permitted.
Accordingly, there are four possible arguments that factory produced bread is not considered Pat Akum, even if the Kashrut agency does not certify the product as Pat Yisrael. Despite these four avenues of leniency that might apply in the modern era, there may be more reason to be strict about this issue in our times when intermarriage is rampant (and the need to create social barriers between Jews and non-Jews is great), and Pat Yisrael is relatively easy to obtain. One could argue that Chazal and the Rishonim were lenient about Pat Akum because of the great difficulty involved in observing this Halacha in their time. Today, however, while it might not be easy to fully observe this Halacha in many Jewish communities, it is unquestionably considerably easier than it was in generations past. For example, Rav Binyamin Taub (the Kashrut coordinator for the Rabbinical Council of Bergen County) told me (on August 11, 2004) that all of the Jewish owned bakeries in Bergen County are Pat Yisrael (another reason that it is preferable to purchase bread at these establishments is the preference to purchase products from a fellow Jew, Memkar La'amitecha; see Rashi to Vayikra 25:14). One could question whether the tradition to be lenient may be preserved when the original motivation for this leniency is no longer relevant (generally speaking).
We should note that similar questions arise in the context of many other areas where Ashkenazic Jews have traditionally adopted a lenient approach, but the reasons for the leniencies are much less relevant. Examples of this include relying on communal Eiruvin, consuming Chadash in Chutz La'aretz and relying on Mechirat Chametz.

Aseret Yemei Teshuva
The Tur (O.C. 603) cites the Jerusalem Talmud (Shabbat 3:3) that states that if one is not able throughout the year to eat food that is Tahor according to the rules of ritual purity, then one should strive to eat such food during the Aseret Yemei Teshuva. The Tur then cites the Ra'avya (an important Ashkenazic Rishon) who notes that the Ashkenazic practice is to follow in the spirit of this passage, and therefore even those who adopt the lenient approach to Pat Akum throughout the year adopt the strict view during the Aseret Yemei Teshuva.
The Shulchan Aruch (O.C. 603) rules in accordance with the Ra'avyah. Accordingly, one should obtain Pat Yisrael during the Aseret Yemei Teshuva. Moreover, the Chayei Adam 143 and the Kitzur Shulchan Aruch 130:2 write that one should adopt other Chumrot (stringencies) during the Aseret Yemei Teshuva that one does not observe during the year. For example, Rav Moshe Tendler once stated (in a Shiur at Yeshiva University in 1986) that even one who practices the lenient approach to the Chalav Yisrael issue should drink only Chalav Yisrael during the Aseret Yemei Teshuva.
Nonetheless, one might wonder why so many otherwise carefully observant people seem to neglect this Halacha. It is possible that they are relying on the four lenient considerations outlined above that suggest that any bread that we purchase might not, technically speaking, be defined as Pat Akum. Additionally, later Acharonim (see Sha'ar Hatziyun 603:4, Aruch Hashulchan ad. loc., Chayei Adam ad. loc. and the Kitzur Shulchan Aruch ad. loc.) clearly indicate that this is merely preferred behavior and not, strictly speaking, a required observance. Thus, Rav Neustadt (ad. loc.) writes that one should not rebuke those who do not avoid Pat Akum even during the Aseret Yemei Teshuva. In addition, it might be sufficient to follow the compromise view of the Rashba and the Shach during the Aseret Yemei Teshuva, especially in regards to factory produced bread.
Rav Zvi Soblofsky (a young Posek, who is a Rosh Yeshiva at Yeshiva University) offers an interesting explanation for the practice to avoid Pat Palter during the Aseret Yemei Teshuva. Rav Soblofsky notes that it is clear from the sources we have cited that the Pat Akum decree was not completely rescinded. It was only rescinded in situations when it was quite difficult for most Jews to implement. He suggests that just as the Pat Akum decree was not rescinded regarding home baked bread of a Nochri, so too it was not rescinded for the Aseret Yemei Teshuva, since it is not an excessive burden for most people to adhere to the Pat Akum decree only during these days.
Rav Sobolofsky similarly explains a puzzling ruling of Rav Saadia Gaon (cited by the Rosh, Yoma 8:24), that men should recite a Beracha upon immersing in a Mikva on Erev Yom Kippur (this opinion is not accepted as normative). Rav Saadia Gaon's ruling is difficult as we do not, generally speaking, recite a Beracha on a Minhag (custom) that emerged after the Talmudic era. Rav Sobolofsky suggests that Rav Saadia Gaon seems to believe that the edict of Ezra (in biblical times) that a Ba'al Keri (a man who has experienced a seminal emission) must immerse in a Mikva remains in effect for Erev Yom Kippur, even though it was rescinded for the rest of the year. Chazal (Berachot 22a) rescinded Ezra's edict because it was too difficult for most Jews to follow (Rambam Hilchot Tefilla 4:5; but see Meiri, Berachot 22a). However, it is not an excessive burden for most of the community to observe on Erev Yom Kippur. Thus, Rav Saadia Gaon believes that a Beracha should be recited on the Erev Yom Kippur immersion, since the original enactment of Ezra remains in effect on that day.

Conclusion
The practice in our communities is to follow the longstanding practice of Ashkenazic Jewry in adopting the lenient approach regarding Pat Akum. However, it is proper to follow the strict opinion during the Aseret Yemei Teshuva as well as Shabbat and Yom Tov, since in most Jewish communities it is currently not very difficult to do so. Moreover, it is worth considering the possibility of "upgrading" one's practice regarding Pat Akum at least to the compromise approach of the Shach, at least in regards to bakery bought bread, provided that such a Chumra does not impinge on Shelom Bayit. See the Rama Y.D. (112:15) who presents the extraordinary ruling (that the Rama notes is unique to the issue of Pat Akum) that one who follows the strict opinion regarding Pat Akum is permitted to follow the lenient ruling if his host serves Pat Palter. Thus, one should follow the lenient ruling if his parents or in-laws serve Pat Palter.
Nevertheless, it would seem that Sephardic Jews should make every effort to follow at least the compromise view of the Rashba and Shach. However, there appears to be more room to be lenient regarding factory baked-bread as opposed to bakery-baked bread even for Sephardic Jews, although the lenient approaches to factory-produced bread are each somewhat debatable.
In our next issue, we will (B'ezrat Hashem and Beli Neder) discuss some of the details regarding the Pat Akum edict, such as its application to cakes, cookies, donuts and bagels, as well as its application to bread baked by Nochrim who assist us in our homes.

 

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