Jews We Can No Longer Trust

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by R. Gidon Rothstein

Parshat Tazri’a: Yoreh De’ah 119, Jews We Can No Longer Trust

Yoreh De’ah 119 takes up a topic probably more relevant today even than in AH’s time, Jews we can and cannot trust on halachic issues. There are twenty se’ifim in SA, fifty-five in AH, so we’re not going to finish it this week, and next week is the week before Pesach, so I’m going to do a special Pesach-themed Aruch HaShulchan. We’ll start now, and, be”H, finish up after Pesach.

Starting From a Point of Trust

Two baraitot in the Gemara, from Avodah Zarah 39b in the first se’if of this siman, and from Shabbat 32a in the second paragraph, set up a default position allowing us to trust fellow Jews regarding matters of prohibited food. The AZ text bans purchasing wine, fish juice, milk, cheese, and other foods from storekeepers in Suria, unless the person has a particular reputation as an expert.

We can eat these same foods in private homes in Suria, however, and also what such a person sends us. The baraita means to outline a particular situation, Rashi explains, the dishonesty of storekeepers, who will ignore lifnei iver, the prohibition to cause a fellow Jew to stumble, will sell what is not allowed, what they would not eat. [Not the same as selling what many rabbis permit despite one oneself accepting a more stringent view.]

In a home, even in Suria, we can trust the kashrut, as we can for what others send us, because they will not be so dastardly as to gift us prohibited food.

Thus sayeth Rashi, Ran, Ra’avad, Tur, and SA, according to many commentators. Jews have a chezkat kashrut, a presumption of fidelity to observance, exempting us of the worry they would sell us prohibited food, or switch our permitted for prohibited if we leave it with them. Unless there is specific cause for suspicion [today, this is sadly less true, because while some amei ha-aretz are observant if ignorant, others have no idea of what observance is. We’ll get there.]

The second source has R. Shimon b. Gamliel note the Torah’s trust of Jews without great knowledge, whom we may believe if they say they gave the proper agricultural gifts to a kohen or Levi. Rashi explains there was originally no need to supervise such people, we were allowed to take them at their word [Imagine!]. True, Chazal did set up the idea of demai, tithing produce bought from a Jew whose observance we think shaky, but that’s an exception, based on Chazal noticing a specific breakdown in observance. In general, we trust one Jew (and not necessarily one who could give testimony in court) about any factual questions, including whether some food is permitted.

Expertise Needs Expertise

The world of tum’ah and taharah, what has or has not come into contact with materials that require keeping it separate from matters of kodesh, related to the Temple, presents a glaring example otherwise. The Gemara already clearly did not trust the average Jew on such questions; doesn’t that mean we think they will violate the Torah willfully?

Nope. Rambam in Metam’ei Mishkav u-Moshav 10 attributed it to the complex rules, an idea we see in Menachot 42b regarding techelet (the bluish dye for some tzitzit strings). With tum’ah/taharah, Chazal also made extra rules to safeguard observance (the less knowledgeable certainly don’t know those), and techelet can be easily confused with kale ilan, giving us pause before we believe just anyone. Too, Rambam in Laws of Tzitzit 2;3 thinks tzizit must be made lishmah, with the intent to fulfill the mitzvah, an idea we fear the ignorant do not know that would then invalidate the tzitzit.

Thus far, we would stick with our general trust of Jews, with carve-outs for expertise-needed situations, or where we have a clear reason for suspicion.

Suria, Outside Israel, and Jews in General

Rambam to Ma’achalot Assurot 11 read the baraita about Sura more generally, in two ways. He thought the original system trusted Jews in Israel, required us to verify what we receive from outside. When general observance deteriorated, Rambam thought we had to re-establish the presumption of trust before we relied on a particular Jew.

AH in se’if four thinks Rambam took the baraita to reveal an expectation, storekeepers’ interest in profit will entice them to act badly. He relates it to Baba Batra 89a’s rule for courts to set up a bureau of standards, a system to check local stores’ weights and measures [I’ve told this story before, but I was once in MealMart on Ave. M, and an inspector from the NY State Bureau did a surprise inspection, and not only was the scale accurate, the guy had given a little more to account for the plastic of the container! Mucho cool].

We fear the temptation for the storekeeper to cheat here and there, particularly on lifnei iver, selling another Jew material that Jew should not use. Rambam ignores the Gemara’s exception for when the storekeeper sends it to the Jew’s house, AH thinks because Rambam treated it all the same.

In this se’if, too, AH points out we sometimes care about a chezkat kashrut, the right to expect a Jew to act properly, and other times need a mumcheh, an expert, for areas needing more than usual knowledge.

Types of Suspicion

It gets stickier when we have grounds to think less than fully positively of a particular Jew. Tur and SA disallow trusting a Jew who violates a certain prohibition—we cannot act on the assurances of a Jew who eats nonkosher that this is kosher.

For meat, a butcher who slaughters himself must establish his credentials, where to sell meat needs no expertise and starts from a position of trust, an idea AH in se’if nine expands to all sorts of foods, including flour for Pesach (back in a time when Jews would use flour on Pesach itself). Except, welcome to modern times, AH adds that nowadays, because so many Jews have left observance, some ideologically some ust in fact, we require certification (he means certification of the person, where we today insist on certification of each food, for reasons I think mix our concern about sellers’ observance with the complications of food production in our world, the need for special expertise to even know if a food is kosher).

Chashud or Muchzak

Someone who cannot be trusted in one area, Bechorot 29b says, must be regarded with suspicion in other areas, too. Someone we suspect of not following the rules of first born animals becomes suspect regarding other meat and hides, shemittah produce, and more. AH in se’if ten thinks it a penalty, where a Jew whose lack of expertise stops us from buying from him/her in one area incurs no such penalty.

Except another Mishnah in Bechorot exempted us from having to worry about a Jew chashud in one area when it comes to other topics. AH in se’if eleven differentiates between a muchzak be-kashrut, a Jew with an established sense of proper observance, who seems to have slipped in one type of situation (for his example, observant kohanim who say a firstborn animal incurred a disqualifying bodily disfigurement on its own still have their chezkat kashrut). Where the Jew has no such overall sense, we let the one issue carry over to others.

The Ordinarily Righteous Jew

A chezkat kashrut does not depend on extraordinary punctiliousness, only that this Jew act as regular Jews do, says AH, puts on tallit and tefillin, prays thrice a day, washes before eating, guides his family to observe the Torah. [Ah, for the times when this list was the obvious minimum of what a Jew would do.]

Where a Jew is known to be lax, we start worrying. Rema in se’if two had said someone who violates the Torah le-te’avon, yields to temptation rather than acts out of principle, does not become a chashud. The Rema’s claim is not immediately understandable, since if the Jew did it le-hach’is, to make a point of his/her disobedience, s/he immediately becomes a min, outside the fold of observance, worse than “just” a chashud.

Taz therefore rejected this idea, Levush omitted it. AH in se’if fourteen thought Rema might have meant that if we see a Jew violate the Torah one time, it is enough to already stop us from trusting this Jew’s testimony (until/ unless he repents and restores his status), enough to require knife checking, if he is a ritual slaughterer, because that requires work and we already see his readiness to opt for the easy and comfortable. It will not make us think of him as an overall sinner.

To become a chashud, the lack of observance must be more regular.

There are Jews expert in arcane areas of law, whose observance is unassailable, whom we trust for all kinds of halachot. On less complex items, we can trust Jews who keep to the ordinary level of observance, or even sin occasionally, as many of us do. Should a Jew descend from there, become a chashud, we have to begin to consider where we may trust him/her regarding the permissibility of what s/he sells or serves, depending on how low s/he has sunk.

Certainly an issue with Pesach ramifications; we will, however, leave it there for now, come back to this, God willing, after Pesach. Next week, the minimal discussion of the mitzvah of sippur yetzi’at Mitzrayim, telling the Pesach story on Seder night, in AH.

About Gidon Rothstein

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