Lo Basi Ella L’orer: Ein Mevatlin Issur Lechatchila

OU Kosher Staff

A Jew is not permitted to intentionally be mivatel any issur, even an issur d’rabbanan (Y.D. 99:5-6). Additionally, Chazal instituted a k’nas, forbidding the food for the mivatel and any intended recipient. Rebbi Akiva Eiger (99:5) based on Teshuvas Rivash (498) includes in this k’nas any consumer for whom the product was intended for sale, and extends the k’nas not only to the food but also to require kashering keilim.1

However, Rav Moshe Feinstein zt”l in his famous teshuva about margarine (Igros Moshe Y.D. II:41) says that this k’nas is only on a Yisroel. There is no k’nas on a non-Jew even if he intentionally is mivatel issur for the sake of selling it to Yidden. Only if a Yisroel asks a non-Jew to be mivatel issur is it considered as though the Yid was mivatel it himself, and the k’nas would apply. Similarly, one may not certify a product in which issur is batel since at the very least this would be included in what Rav Moshe refers to as michuar hadavar. Although most Poskim are of the opinion that there is no issur to purchase this product, it is preferable to avoid doing so, as this is considered by some to be a form of bitul issur 2 and also leads to questions of ikro l’kach.3

Rav Belsky said that he had heard from Rav Moshe zt”l that one may not suggest to a company that they lower the amount of issur that they add to their products in order that it should be batel. An RC or RFR might have an interest in doing so in order to avoid having to kasher the keilim. This too would be included in the issur of being mivatel issur lechatchila, since the issur is becoming batel on the say so of the Yisrael. For example, if a company adds 1.8% gelatin to a product, and this will now require kashering keilim, one may not suggest to the company that if they lower the amount of gelatin to 1.5%, we can avoid the need for kashering. Likewise, if the company adds 1% gelatin but it is added first as a premix, one should not advise the company to add the gelatin directly to the vat so that it will become batel.

Although Rebbi Akiva Eiger (cited above) writes that if a Yid is mivatel issur the keilim must be kashered, Rav Belsky felt that this would have limited implications for Jewish owned companies. In most cases, the intention of the company is not to be mivatel issur, but rather to manufacture their product. If it just so happens that the amount that they need to add is batel, but bitul was not their intention, then they would not be subject to the k’nas, since they are not intending on creating a kosher product. However, if the Jewish company knows that by lowering the amount of issur that they add they can avoid kashering their keilim, then this will not help. In this case they are intentionally trying to be mivatel issur and the keilim must be kashered.

In summary:

  • A Jew may not be mivatel any issur
  • If a Jew is mivatel issur there is a k’nas on the food and keilim
  • There is no k’nas on a non-Jew that is mivatel issur, though it is proper for a Yid not to buy such a food
  • If a non-Jew is mivatel issur, there is no need to kasher the keilim.
  • One may not recommend that a company be mivatel issur to avoid kashering
  • A Jewish company would only need to kasher if they intended to be mivatel. If they had no intentions of bitul there is no need to kasher. If they intentionally lowered the amount to avoid kashering, it would not help

Notes:

1 Rebbi Akiva Eiger is based on Tevuas Shor (39:2), which is based on Teshuvas Rivash. Some poskim such as Yad Yehuda (99:18) disagree and maintain that there is no k’nas on the keilim.

2 Radvaz 3:547; Though Rav Moshe zt”l in this teshuva is clear that he is not choshesh for this chumrah.

3 Teshuvas Harashba brought by Shulchan Aruch (Y.D. 134:13) holds that if a non-Jew intentionally adds issur it is not batel. However, Noda B’Yehuda shows that the ikar halacha does not follow Rashba, and Rav Moshe zt”l (Igros Moshe Y.D. I:63) limits psak of Shulchan Aruch to issurim such as stam yeinam which are assur b’hana’ah. Rav Belsky has said that aside from Pesach and issurei hana’ah, the minhag is to follow the Noda B’Yehuda.