Oh no! A congregant at Congregation Shaarei Orah, the Sephardic Congregation of Teaneck, used a meat spoon to stir burning hot cheese mixed with noodles in a pot! What to do? Of course, the first response is to call the rabbi.
The Status of the Cheese and Noodles
Invariably, the rabbi’s first question will be whether the meat spoon was used with meat in the past twenty four hours. If the spoon was not used with meat within the past twenty four hours it is a “Notein Ta’am Lifgam,” or “Giving off a bad taste” situation: Chazal determined that after twenty four hours, the food particles absorbed in a utensil become rancid and the taste they omit does not render the food into which it falls as forbidden (Avodah Zarah 75b-76a).
Moreover, Tosafot (Avodah Zarah 38b s.v. Ee Mishum) present Rashi, Rabbeinu Tam and the Ri as all agreeing (which is, to say the least, not the usual situation) that this rule applies even if one is uncertain whether the utensil was used within the past 24 hours. The reason is that a S’feik Sefeika (double doubt) applies in such a case. One Safeik is that perhaps the utensil was not used within the past 24 hours. The second doubt is that even if the utensil was used within 24 hours, perhaps the mixture of the absorbed material and the food currently cooked is Lifgam, not a good taste.
Thus in our case, if the meat spoon was either certainly not used in the past 24 hours or even just possibly not used within the 24 hours preceding its insertion in the hot cheese dish, the Notein Ta’am Lifgam rule applies and the cheese and noodles are not rendered non-kosher.
The Status of the Spoon
The spoon nonetheless must be kashered since it has absorbed both meat and milk particles, as mandated in the aforementioned Gemara in Avodah Zarah:
The Torah forbids only [food cooked] in a pot used within the past twenty four hours (Ben Yomo), since it is not Notein Ta’am Lifgam. After 24 hours, it is not initially (Lechatchilah) permitted to be used for cooking [an item of the “opposite gender”], lest one confuse an Eino Ben Yomo utensil with a Ben Yomo utensil.
Disaster Strikes Again!
The spoon would thus be set aside until a minimum of 24 hours had passed (until it became Eino Ben Yomo) and would be immersed in an Eino Ben Yomo pot brimming with boiling hot water. As is the custom, the newly kashered utensil is then immediately placed into cold water.
However, disaster struck again, and before the kashering could take place, the spoon became mixed up with the rest of the spoons of the house. The rabbi was called again! Must all of the household spoons be kashered? After all, there were not sixty kosher spoons to nullify (Mevateil) the spoon that needed to be kashered to render it “Bateil BeShishim,” nullification by ratio of sixty to one.
When Non-Kosher Keilim Become Mixed with Kosher Keilim
In the case of the spoon, there is still hope. The requirement of a sixty-to-one ratio to nullify a forbidden item applies only to a mixture referred to as “Lach BeLach” (lit. “wet in wet”), when both the items thoroughly mix. However, in the situation of “Yaveish BeYaveish” (lit. “dry in dry”), where identical items are not thoroughly mixed but the forbidden item is not identifiable, only a Rov (majority) of permitted items is needed to nullify the forbidden item. Thus, since the mixture of the forbidden spoon with the other spoons is a Yaveish BeYaveish situation, the spoon should be Bateil BeRov.
Davar Sheyeish Lo Matirin
Not so fast, however! The rules of Bitul do not apply in a situation of a Davar SheYeish Lo Matirin. A Davar SheYeish Lo Matirin is an item which will become permissible at a later point. For example, if a Muktzeh spoon becomes mixed with a number of non-Muktzeh spoons on Shabbat or Yom Tov, the spoon is not rendered permissible by virtue of it being Bateil BeRov because the spoon itself is not forbidden to be moved and has a time when it is permissible; after Shabbat or Yom Tov the spoon can be moved, and thus, the rules of Bitul and Rov do not apply to the Muktzeh spoon. Accordingly, the spoon in our case should not be Bateil BeRov, since the entire mixture of spoons can be kashered!
Let us spend a moment explaining the logic behind the rabbinic rule of Davar SheYeish Lo Matirin. There is no doubt that on a Torah level, the forbidden item is permitted if it is Bateil BeRov. However, Chazal forbade the mixture if it is a Davar SheYeish Lo Matirin. The simplest explanation for this rule is articulated by Rashi (Beitzah 3b s.v. Afilu BeElef): why should we rely on the leniency when there is an option to avoid the need to rely upon it?
The Ran (Nedarim 52a s.v. VeKashya Lehu) presents an elegant but intricate explanation of this Halachah. He notes the well-known dispute between Rabi Yehudah and the Rabbanan as to whether two like items, “Min BeMino,” one of which is forbidden and one of which is permissible, can ever be nullified (Chullin 98b). Rabi Yehudah argues that Min BeMino can never be nullified. His proof is from the fact that on Yom Kippur, the blood of the Sa’ir (goat) and blood of the Par (bull) is mixed and poured together on the Mizbei’ach. The blood of the Par is far more voluminous than the blood of the Sa’ir, yet the blood of the Sa’ir retains its identity despite its being Bateil BeRov.
The Rabbanan disagree and respond that when a forbidden item mixes with permissible items, conceptually speaking, it is a Min BeSheEino Mino mixture, a mixture of two different items. The fact that one item is permitted and the other item is forbidden renders the two items as fundamentally different even though they are physically identical. For Issurim, there would never be a case of Min BeMino.
Therefore, argues the Ran, when there is a forbidden item that has the possibility of being permissible at a later point in time, it is fundamentally not a forbidden item but rather a permitted item. Thus, a Davar SheYeish Lo Matirin that mixes with permissible items is regarded as a mixture of Min BeMino even according to the Rabbanan, who agree with Rabi Yehudah on this point as a Chumrah due to the fact that there is nothing intrinsic to separate the object from a permissible object and it extremely close to a situation of Min BeMino.
An Exception to the Davar SheYeish Lo Matirin Rule
The spoon in our case seems to be forbidden due to its status as a Davar SheYeish Lo Matirin. Nonetheless, the Shulchan Aruch (Yoreh Dei’ah 102:3, citing the Rashba) rules that the Davar SheYeish Lo Matirin principle does not apply in a case where kashering is required due to the expenditure that is necessary to kasher the spoons. The Pri Chadash (Y.D. 102:8) and Chochmat Adam (53:23) explain that this situation is not regarded as a Davar SheYeish Lo Matirin since Tirchah (considerable effort) would be needed to kasher the utensils.
The Shach notes that the Maharil disagrees with this ruling, arguing that Davar SheYeish Lo Matirin applies even when Tirchah and a small expenditure is involved. His proof is from Bava Metzia 53a, which states that a mixture of normal food and Ma’aseir Sheini (second tithe, which is forbidden to be eaten outside of Jerusalem) is not nullified since it can be brought to Yerushalayim to be consumed, where travel expenses are certainly a Tirchah.
The Shach makes a compromise between the Rashba and Maharil and limits the lenient ruling to when the forbidden utensil is Eino Ben Yomo and forbidden only rabbinically. The Chochmat Adam (ad. loc.) rules in accordance with the Shach. Hacham Ovadia Yosef (Halichot Olam 7:87) also prefers the approach of the Shach, despite Rav Yosef’s usual strong tendency to hew carefully to the rulings of Rav Yosef Karo. Thus in our case, we would wait 24 hours from the time the spoon was placed in the hot cheese, and we may rely on its being nullified in the kosher spoons in which it became mixed.
A Stringency from Rav Soloveitchik
We are not out of the woods yet. Rav Hershel Schachter cites Rav Yosef Dov Soloveitchik, who ruled that the Shulchan Aruch’s ruling applies only to a situation when kashering utensils involves difficulty. This was the situation in the pre-modern world when obtaining water was not as simple as turning on a faucet. However, argues Rav Soloveithcik, since obtaining water in modern conditions is easy, the Rashba’s lenient ruling no longer applies.
I mentioned this ruling to Rav Menachem Genack, the CEO of OU Kosher and a leading student of Rav Soloveitchik, who reacted with surprise. He noted that Tirchah is still involved in Kashering even in the modern-day context. Indeed, the contemporary (and quite stringent) commentary on Yoreh Dei’ah, the Badei HaShulchan, does not cite any authority who agrees with this ruling of Rav Soloveitchik. Thus, I ruled that the spoons were all permitted after waiting 24 hours from the time the spoon was placed in burning hot cheese.
We Jews love Hashem and His Torah, and therefore, we make every effort to investigate that we are properly observing His beautiful laws. This thorough investigation and discussion is not viewed by us as a burden but as a labor of love, toiling in the vineyard of Hashem!