Restaurants Serving Meat During the Nine Days
Owners of meat restaurants face a dilemma during the Nine Days. If they refuse to serve meat items during this time, marginally observant and non observant Jewish customers will likely choose to eat non-kosher meat elsewhere. The question is whether Halacha permits storeowners to serve meat during the Nine Days to help prevent others from eating non-kosher food. We will review the basis and development of the custom to avoid eating meat during the Nine Days and some of the parameters of the prohibition to cause others to sin, Linei Iveir Lo Titein Michshol (Vayikra 19:14). We will base our discussion on a Teshuva of Rav Ovadia Yosef (Teshuvot Yechave Daat 3:38) that addresses this issue.
The Custom to Avoid Meat During the Nine Days - Gemara, Rambam, Shulchan Aruch, and Current Practice
The Mishna (Taanit 26b) and Gemara (ibid. 30a) record the rabbinical prohibition to eat meat during the Seudah Hamafseket, the last meal before the Tisha Beav fast. There is no rabbinical prohibition to eat meat before the Seudah Hamafseket. The Rambam (Hilchot Taaniot 5:6) notes that the custom has emerged to abstain from eating meat during the entire week that Tisha Beav occurs (e.g. if Tisha Beav falls on Thursday, one would abstain from meat beginning the previous Saturday evening). The Rambam notes that some avoid eating meat beginning from Rosh Chodesh Av.
The Shulchan Aruch (Orach Chaim 551:9) records three different practices in this regard. Some refrain from meat only during the week that Tisha Beav is observed, some avoid eating meat during the entire Nine Days, and some avoid meat during the entire three weeks. The Rama (ibid.) notes the accepted practice among Ashkenazim is to refrain from eating meat during the Nine Days. Rav Ovadia Yosef notes that the practice among both Ashkenazim and Sefardim in Israel is to abstain from eating meat during the entire Nine Days. The members of Teaneck's Sefardic Congregation (who come from a wide variety of Sefardic sub-groupings) report that the custom to avoid eating meat during the Nine Days is practiced by Sefardim in the Diaspora as well. One difference, though, between Ashkenazim and Sefardim in this regard is that Ashkenazim do not eat meat on Rosh Chodesh Av (Mishna Berura 551:58) and Sefardim do eat meat on Rosh Chodesh Av (Rav Ovadia Yosef, Teshuvot Yechave Daat 1:41).
Understanding the Custom
Halachic authorities view this custom very seriously. The Shulchan Aruch (O.C. 551:11) writes that one who violates this custom "will be bitten by a snake," a term used by Halachic authorities to emphasize the importance of a particular custom and that it should not be lightly dismissed. In fact, the Aruch Hashulchan (O.C. 551:23) deplores the practice of some in his time (late nineteenth century Lithuania) to disregard this custom. He writes that since our ancestors have accepted this practice, it has become a "communal vow," which is a Biblical obligation to uphold. He concludes that God will severely punish those who fail to observe this custom.
There are at least two explanations for this custom (see the Beit Yosef O.C. 551 s.v. Katav Hakolbo). First, the Gemara (Pesachim 109a) states that there cannot be a festive occasion unless meat is consumed. Thus, since the Nine Days are a time of mourning, we should avoid meat, as it is associated with joy. Another explanation is based on the Gemara in Bava Batra (60b) that records that a proposal was made to abstain from meat entirely as an expression of mourning for the destruction of the Beit Hamikdash. Chazal rejected this proposal because they felt that it was an edict that the majority of the community cannot tolerate. We see, however, from this passage in the Gemara that abstaining from meat is a form of mourning for the destruction of the Temple.
The Rama (O.C. 551:9), though, rules that a sick person may eat meat during the Nine Days. Despite the seriousness of this practice, it is still only a custom and is not to be treated with the same severity as a rabbinical obligation. In fact, Poskim assume that our forbearers did not intend to accept to observe customs in case of great need. A competent Halachic authority should be consulted to determine if a situation constitutes a great need to the extent that one may eat meat during the Nine Days.
Lifnei Iveir Lo Titein Michshol
Accordingly, it is forbidden to serve meat to a healthy individual who is a guest in one's home during the Nine Days. However, the storeowner is in a somewhat different situation. There are many alternatives to his restaurant and the non-observant Jew will eat at the non-kosher establishment if the kosher restaurant does not serve meat during the Nine Days. The Gemara (Avoda Zara 6b) states that the prohibition of Lifnei Iveir applies only in a situation of "Trei Avri Denahara," which literally means "two sides of the river." This means that the prohibition applies only when one facilitates the performance of a sin that would have otherwise have been difficult or impossible to perform. For example, if one brings wine to a Nazirite from one side of the river to another side of the river, he has violated the Torah level prohibition of Lifnei Iver. Accordingly, the restaurateur does not violate the Torah level prohibition of Lifnei Iver since there are many other restaurants available to serve meat.
The Rishonim debate, though, whether there is a rabbinical prohibition to assist someone to sin in a situation where there are many others available to assist in the performance of the sin. Tosafot in Avoda Zara 6b (s.v. Minayin) imply that there is no prohibition if it is not a situation of Trei Avri Denahara. On the other hand, Tosafot in Shabbat 3a (s.v. Bava Dreisha) assert that there is a rabbinical prohibition to aid a sinner even if it is not a situation of Trei Avri Denahara. The Rama (Yoreh Deah 151:1) cites both opinions and concludes that common practice is to follow the lenient opinion but it is best to abide by the stricter opinion.
Thus, a restaurateur has a Halachic basis to serve meat during the Nine Days, as common practice is to rely on the lenient opinion of Tosafot that appears in Avoda Zara 6b. In Israel, however, the situation is a bit more complicated. In Israel, Jews own the alternative establishments that serve meat during the Nine Days (especially now that Jews avoid frequenting Arab restaurants due to security concerns). In such a situation, argues the Mishna Lamelech (commenting on Rambam's Hilchot Malveh Veloveh 4:2), the Torah level prohibition of Lifnei Iver applies even if it is not a Trei Avri Denahara situation. The Acharonim vigorously debate whether the Mishneh Lamelech is correct (for a summary and analysis of the opinions see Rav Yosef Shalom Eliashiv's Kovetz Teshuvot number 20). It appears that the general consensus is that one should abide by the strict ruling of the Mishneh Lamelech.
Selecting the Less Severe Transgression - Rav Akiva Eiger and Israeli Chief Rabbinate
There might be another reason to permit serving meat during the Nine Days based on a controversial ruling of Rav Akiva Eiger. Rav Akiva Eiger (commenting to Shulchan Aruch Yoreh Deah 181:6) suggests that it is permissible for a woman to shave a man with a razor if the man would have otherwise shaved himself with the razor. This is because if a man shaves himself with a razor he violates two prohibitions - the prohibition to shave with a razor and the prohibition to be shaved with a razor (see Makkot 20b and Shulchan Aruch Y. D. 181:4). However, a woman is not prohibited to shave with a razor (see Kiddushin 29a). Thus, when a woman shaves a man with a razor, the man violates only the prohibition to be shaved. This ruling is quite relevant for female nurses who are required to shave male patients.
The logic for Rav Akiva Eiger is that the essence of the prohibition of Lifnei Iver is that one should not offer "bad advice" to another. Causing another to sin is certainly offering bad advice. However, if by one's actions one minimizes the severity of the sin that would have been violated in any event, then he might indeed be offering good advice rather than bad advice.
The Israel Chief Rabbinate permits meat restaurants to serve meat during the Nine Days because of a similar rationale. They are aware of the fact that in Israel today a very significant percentage of the population fit the description of the Gemara (Chullin 4a) that "Lo Shvak Heteirah Veachil Issura," that they will not eat kosher if Kosher food is available. Thus, they reason that it is certainly preferable that these people violate the Minhag to abstain from meat during the Nine Days rather than violate the Torah prohibition to eat non-kosher meat. Thus, the restaurateur is saving his customer from violating a severe transgression by serving him meat during the Nine Days.
Conclusion - Rav Ovadia Yosef
Although many authorities do not accept the approach of Rav Akiva Eiger (see the sources cited in Rav Eliezer Waldenberg's Teshuvot Tzitz Eliezer 15:19), Rav Ovadia Yosef endorses the approach of the Israeli Chief Rabbinate. He notes that one may rule leniently because we are dealing with the question of the observance of a custom, and the fact that some authorities reject the aforementioned stringent approach of the Mishneh Lamelech. Although the Israeli Chief Rabbinate's lenient approach is somewhat debatable, it certainly is an expression of love and concern for the spiritual health of all of Am Yisrael.