Nullification of Prohibited Mixtures Part II

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August 28 2008

Nullification of Prohibited Mixtures

Part II

In the previous issue, we discussed nullification of a non-kosher item that was accidentally mixed into a kosher food.  The previous issue focused on mixtures that are liquid or mixtures where the non-kosher item was cooked together with the kosher items.  In this week's issue, we will discuss dry mixtures.  As we noted, the conceptual difference between liquid mixtures and dry mixtures is that in liquid mixtures, if one is allowed to consume the mixture, it is assumed that the non-kosher item will automatically be consumed as well.  As such, the mixture is considered one uniform entity.  Regarding dry mixtures, if one only consumes a portion of the mixture, it is possible to consume the kosher food and avoid the non-kosher food.  In a dry mixture, one item does not physically affect the status of another item.  It is only the doubt that arises regarding which items are kosher and which are not kosher that affects the status of the mixture.  [As such, the definition of a mixture for these purposes is not necessarily limited to items that are physically mixed together.  See P'ri Megadim, M.Z. 109:1, who observes that if there are three pieces of meat in three different places and one is not sure which of those three pieces are kosher, the three pieces are considered a dry mixture for the purposes of this discussion.]


The Standards and Significance of Nullification of Dry Mixtures

The classic case of dry mixtures is one where there are three items, two of which have one status and the one of which has the opposite status.  For example, there are three pieces of meat, two of which are kosher and the other is not kosher.  The Gemara, Chullin 99b-100a, states that regarding dry mixtures, a simple majority is required for nullification.  If majority of the pieces in the mixture are kosher, and the non-kosher pieces are not recognizable, the mixture is considered kosher.  The Gemara also notes that there are certain cases where the pieces are considered significant entities and in those situations, the rabbis did not allow any nullification.

The Rishonim address an important question regarding dry mixtures whose majority comprises kosher food and whose minority comprises non-kosher food.  What is the mechanism that allows one to eat this mixture?  Does the "majority rules" principle allow one to view the entire mixture as having the status of the majority or does it merely allow one to rely on the probability that any given piece is a kosher piece?

Rabbeinu Asher, Chullin 7:37, addresses this question regarding one who wants to eat the entire mixture simultaneously.  Rabbeinu Asher asserts that although eating the entire mixture simultaneously assures that one will certainly eat the non-kosher pieces, it is nevertheless permitted.  He explains that when a majority of the pieces are kosher, the non-kosher pieces are transformed into kosher pieces.  Therefore, there is no concern that one is certainly eating the non-kosher pieces because those pieces are now rendered kosher.

Rashba, Torat HaBayit He'Aroch, 4:1, 17a, states that the permissibility to rely on a simple majority is based on probability.  When one takes the first piece out of the mixture, he may rely on the probability of greater than 50% that the piece is kosher.  The same applies to all subsequent pieces.  When he reaches the point where probability does not allow him to assume that the remainder of the pieces are kosher, he can then assume that the non-kosher pieces were already consumed.  [In other words, the probability of any given piece being a kosher piece is not changed by his decision to eat another piece assuming that it is a kosher piece.  If for example, there are five pieces, three of which are kosher, he may consume all five pieces and assume that each piece, including the last two, has a 60% probability of being kosher.]  Rashba notes that based on this understanding of how nullification of dry mixtures operates, it is prohibited to eat the entire mixture simultaneously.  If one does so, there is a 100% probability that he is eating a non-kosher piece.  [See P'ri Megadim, op. cit., who posits that Rashba's prohibition against eating the entire mixture simultaneously is only rabbinic in nature.]

Tosafot, Chullin 100a, s.v. Beriyah, extend the scope of the question of how one understands the nullification of dry mixtures.  Tosafot question whether a single individual may eat the entire mixture (even if he eats the pieces at different times).  Tosafot Rid, Baba Batra 31b, s.v. Shtei, states definitively that if one individual eats the entire mixture, he violates a biblical prohibition.  It is possible that Tosafot and Tosafot Rid understand the mechanism of nullification of dry mixtures in a manner similar to Rashba.  However, instead of focusing on the probability of each individual piece, they focus on the probability of the person eating a non-kosher piece.  It is prohibited to partake of the mixture if the probability of eating the non-kosher piece is 50% or greater. 

Shulchan Aruch, Yoreh De'ah 109:1, rules in accordance with the opinion of Rashba that if the majority of the pieces are kosher and the minority of the pieces are non-kosher, one may not eat the entire mixture simultaneously.  Shulchan Aruch also cites the opinion of Tosafot that one individual may not eat the entire mixture.  Rama, ad loc., rules that one should follow the opinion of Tosafot.  Rama adds (based on the comments of Issur V'Heter He'Aroch 23:11) that as an added stringency, one should dispose of one of the pieces or give it to a non-Jew.  This stringency seems to be an added measure to ensure that one person does not eat the entire mixture.


Questions that Involve Dry Mixtures and Liquid Mixtures

In theory, the discussions about dry mixtures and liquid mixtures are two different discussions that don't relate.  However, in reality, there are cases whose questions involve a combination of both of these discussions.  Let's start with our example of three pieces of meat, two if which are kosher and one of which is not kosher, that were mixed together.  Suppose all three pieces were then used in a soup whose total volume is only five times greater than any of the pieces.  All three of those pieces now impart taste into the soup.  What is the status of the soup and what is the status of the pieces of meat?

Rashba, op. cit., and Rabbeinu Asher, op. cit., both address this question.  Rashba rules that according to his own theory regarding nullification of dry mixtures, the entire mixture is prohibited.  He explains that dry mixtures are only permissible when the probability of eating the non-kosher is less than 50%.  However, if one cooks all three pieces together, the taste of the non-kosher piece is present throughout the mixture and therefore, the entire mixture is prohibited. 

Rabbeinu Asher is also consistent in his opinion that when three pieces of meat are mixed together, they all assume the status of the majority.   Therefore, he rules that when the piece of non-kosher is nullified within the majority of the kosher pieces, it can no longer impart non-kosher taste into the rest of the mixture.  However, Rabbeinu Asher does note that in order for nullification of the dry mixture to occur, one must realize that the items were mixed as a dry mixture before they were added to the soup.  If one does not realize that the non-kosher piece of meat exists within the mixture until after the soup started to cook, one must treat the entire mixture as an ordinary liquid mixture and the standards of nullification are sixty to one.

Shulchan Aruch, Yoreh De'ah 109:2, is consistent in his opinion and therefore rules in accordance with the opinion of Rashba who prohibits the entire soup.  Rama seems to diverge from his original ruling.  Rama ad loc., rules that in a case of loss, one rely on the opinion of Rabbeinu Asher who permits the entire soup.

Rama's position requires explanation.  The question of eating all three pieces simultaneously seems to be directly connected to the question of cooking all three pieces in a soup.  Rama not only rules that one should not eat all three pieces simultaneously, he rules that one person should not eat all three pieces.  He also adds a stringency to dispose of one of the pieces.  Why then, does he permit eating a soup that contains all three pieces?

Rama, in his commentary to Tur titled Darkei Moshe, Yoreh De'ah 109:4, notes that both questions are inextricably linked and the conclusion of one must be the same conclusion as the other.  However, he notes that in certain cases one may rely on the opinion of Rabbeinu Asher.  Therefore, one can explain that Rama's opinion is that ideally, one should even show deference to the opinion of Tosafot and even dispose of one of the pieces.  However, if the pieces were all cooked together and following the opinion of Rashba (or Tosafot) will cause a loss, one may rely on the opinion of Rabbeinu Asher and permit the entire mixture.


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