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Parshas Shemini: Cholov Yisrael No definitive Halacha LeMa'aseh conclusions should be applied to practical situations based on any of these Shiurim.
Among the different animals which the Torah states may not be eaten is the camel, because it possesses only one of the required physical properties, as it chews its cud but does not have properly split hooves (VaYikra 11:4). The Gemara in Bechoros (6b) indicates that according to one view, because the camel is specified twice in the Torah, once, as Rashi (Ibid. s.v. Gamal) explains, in the Posuk in this Parsha (Ibid.) and once in a Posuk in Mishneh Torah, a nickname for Sefer Devarim (14:7), we may derive that both the camel itself and its milk may not be consumed. The other opinion in the Gemara (Ibid.) is that this prohibition to consume the milk of a camel is derived from an extra word in the Posuk in this Parsha (VaYikra Ibid.). According to both views, there is no question that the Torah forbids a Jew to consume the milk of a camel. Actually, the Mishnah earlier in Bechoros (5b) states that anything produced by a non-Kosher animal is likewise not Kosher itself; the Gemara later (Ibid. 7a-7b) implies that the milk of a non-Kosher animal is included in this statement and is thus forbidden. The first Gemara cited above (Ibid. 6b) explains, however, why milk may have a different set of rules than other animal by-products, and thus a separate derivation is needed to prohibit milk from a non-Kosher animal, as explained as well by the Torah Temimah on the above Posuk in this Parsha (VaYikra Ibid. Os 16). The Rambam (Hilchos Maachalos Asuros 3:1) and the Shulchan Aruch (Yoreh Deah Siman 81:1) clearly rule that milk from a non-Kosher animal may not be consumed, although the Rambam (Ibid.) derives the prohibition from a different Posuk in this Parsha (Ibid. Pasuk 16), based on a statement in the Gemara in Chulin (64b). The Mishnah in Avodah Zarah (35b), when listing various products which, if manufactured by a non-Jew, may not be eaten, states that any milk which was milked by a non-Jew without the presence of a Jew there may not be consumed. The Gemara (Ibid.) explains that such milk is forbidden for a Jew because of the possibility that the non-Jewish manufacturer may have mixed in some milk from a non-Kosher animal. The Rambam (Ibid. Halacha 13) rules accordingly, as does the Shulchan Aruch (Yoreh Deah Siman 115:1); the Ramo (Ibid.) adds that one should not use the same vessels for milk from a Kosher animal that are used for milk from a non-Kosher animal because of the residue from the non-Kosher milk which may remain and become mixed in. The Vilna Gaon (Biur HaGra Ibid. Sif Katan 4) notes that because of this possibility that the vessels used by a non-Jew for milking may indeed contain the residue of non-Kosher milk, a Jew may not drink the milk processed by a non-Jew even if there is no concern that the non-Jew will intentionally mix non-Kosher milk in with the Kosher milk. As is stated clearly by the Mishnah later in Avodah Zarah (39b), if a Jew is watching when the non-Jew does the milking, the milk may be consumed by Jews; milk produced under the supervision of a Jew is popularly referred to as Cholov Yisrael. The Gemara (Ibid.), as clarified by Tosafos (Ibid. s.v. Tanina) indicates that the Jew does not have to actually be watching the non-Jew at all times, but rather must be nearby and able to see at any time what the non-Jew is doing if he wants to. In such a case, we may assume that the non-Jew will not mix in any non-Kosher milk, even if he has the chance to do so, for fear of being caught (Mirtas) and, as the Meiri adds (Beis HaBechirah on 35b Ibid s.v. HaMishnah) of losing his sale. The Rambam (Ibid. Halachah 17) thus rules that if the Jew can potentially see the non-Jew milking the cows at any time, even if he does not see him at every moment, the milk is considered Kosher. The Maggid Mishneh (Ibid.) points out, though, that this is the case only if the non-Jew is milking the cows for the benefit of a Jew and is aware that the Jew cannot consume milk from a non-Kosher animal; he thus will not want to get caught mixing in any milk from a non-Kosher animal. Otherwise, however, one cannot rely on the fact that the Jew is simply able to monitor the non-Jew's actions. The Shulchan Aruch (Ibid.) rules accordingly, and the Shach (Ibid. Sif Katan 3) adds that if the non-Jew was milking the cow for his own needs, the milk is forbidden for a Jew unless a Jew actually watched the entire milking process and saw that no non-Kosher milk was mixed in. The Shach (Ibid. Sif Katan 4) also explains that in order to allow milk which was milked by a non-Jew, it is sufficient if a Jew serves merely as a Yotzei V'Nichnas that is, he regularly comes in and out (unannounced) to the place where the milking is being done, because in such a case, the Mirtas factor is present, meaning that the non-Jew will fear getting caught mixing in any forbidden ingredients since the Jew may walk in at any time, and he therefore will not do it. The Shach (Ibid.) notes that this logic is accepted in other areas of Halacha as well; the Taz (Ibid. Sif Katan 3) among others, concurs, citing another example of such a situation. The Ramo (Ibid.) writes that it is proper for the Jew to be present at the beginning of the milking process and to first check to make sure that there is no prohibited food already in the vessels into which the milk will be placed; he also rules (Ibid.) that even a young child can serve as the supervisor for this purpose. The Shach (Ibid. Sif Katan 12) and the Taz (Ibid. Sif Katan 5) quote that the child must be at least nine years old; the Chochmas Adam (Klal 67 Sif 4) allows even a child of six to do this, provided that he is an intelligent child. He does quote, however, that some did not rely on a child for this supervision at all; this is the position of the Ritva in his commentary on the aforementioned Gemara in Avodah Zarah (Chidushei HaRitva on Avodah Zarah Ibid. s.v. Yosheiv) where he specifically requires an adult. It should be stressed that if no Jew can even possibly see what the non-Jew is doing when milking the cow, the milk is obviously forbidden, as indicated by the Meiri (Ibid.) and others. The Mordechai in Avodah Zarah (Siman 826, in 41b in the Rif) quotes an authority who holds that if it can be ascertained that the non-Jew has no access to non-Kosher milk, a Jew may consume the milk provided by this non-Jew even though no Jew was present during the milking process, but he rejects this view, preferring the other authorities he quotes who hold that even in such a case, a Jew must be present at least at the start of the milking process. The Shulchan Aruch (Yoreh Deah Ibid.), as explained by the Taz (Ibid. Sif Katan 2), requires that a Jew must at least be nearby for the milk to be permitted. The Radvaz (Sheilos V'Teshuvos HaRadvaz Chelek 4 Siman Aleph 147), however, rules clearly that if it is absolutely certain that no milk from a non-Kosher animal can be found which the non-Jew could obtain, a Jew may consume the milk processed by a non-Jew even if no Jew was present during the milking. He asserts that other authorities agree with him and that there never was a ban on all milk processed by a non-Jew regardless of the circumstances. Rather, the prohibition against consuming milk provided by a non-Jew was formulated merely because of the possibility that non-Kosher milk would get mixed in with the Kosher milk. Where no such possibility exists, there never was a prohibition. The Chasam Sofer (Sheilos V'Teshuvos Chasam Sofer Chelek Yoreh Deah Siman 107), however, writes that the prohibition against consuming milk processed by a non-Jew was a general, broadly intended prohibition, which therefore applies in all cases, even when it is clear that the original reason for the prohibition, namely, the possibility that non-Kosher milk may get mixed in with the Kosher milk, does not apply in a particular situation. He also writes (Ibid.) that the long-standing Jewish practice to drink only Cholov Yisrael constitutes the acceptance of this behavior as a Neder a vow from the Torah, and thus it cannot be changed. The Chochmas Adam (Ibid. Sif 1) writes that the major Poskim do not accept any leniency in this regard; the Aruch HaShulchan (Yoreh Deah Ibid. Sif 6) likewise stresses that one should not be lenient in this Halacha, documenting with an interesting story that the problem of non-Kosher ingredients in milk can come up even when not at all expected. It must be noted, however, that Rav Moshe Feinstein (Sheilos V'Teshuvos Igros Moshe Yoreh Deah Chelek 1 Siman 47) suggests a leniency which is applicable today, at least in the United States, where government laws strictly regulate the manufacturing of milk for public sale, and where government inspectors regularly visit dairy plants to guarantee that certain standards are met. Since mixing in other types of milk (such as from non-Kosher animals) with milk from a cow (which of course is Kosher) would adversely affect the product from the government's point of view, no dairy plant worker would risk doing this because he would undoubtedly be caught by the inspectors and would likely be penalized or perhaps lose his job. A dairy plant which did such a thing would likely face a fine and perhaps even have to shut down. Rav Feinstein therefore rules (Ibid.) that the government's inspection of dairy plants and their certification of dairy products is a valid substitute for the required Jewish supervision of the milking process, because the definitive knowledge of something is the equivalent of actually seeing it. He asserts that all the Poskim would agree to this; this ruling is also articulated by the Chazon Ish (Chelek Yoreh Deah Siman 41 Os 4). Rav Feinstein does conclude (Ibid.), however, that it is proper for one to be strict and drink only real Cholov Yisrael, not relying on the government's standards, which is the practice he himself followed. It should be pointed out that there is also some discussion among the Poskim regarding other dairy and milk products in terms of the above Halachos. If you have any questions or comments, please click here |