Yoreh Deah "Relying on a A'kum in the Law of Forbidden Mixtures"

1. In all forbidden mixtures, if the prohibited part gives a taste to the permitted part, the mixture is forbidden. If it does not give a taste, the mixture is permitted. We determine the presence of taste according to the rule of sixty parts. We pressume that from sixty parts and up there is no taste. Alternatively, we may actually taste the mixture to assess the the pressence or non-pressence the prohibited part. If the prohibition is limited to an Israelite, as in the case of Maaser, we can have Levite Jew taste the the mixture. Where the mixture would be prohibited to all Jews we can ask an A’kum (idol-worshipper) to taste it. This Shiur is about the second method (tasting), and does not deal with the arguements as to whether tasting is prefered to the rule of sixty or the opposite.

2. Let us ask two questions about tasting:

1. Does the tasting have to be by a k'fela (an expert) or can anyone taste the mixture? Is it necessary to have an expert do the tasting since his taste is more perceptive and he can therfore distinguish tastes that an ordinary person will not notice. Or do we rule that anyone can taste since we are only concerned about the taste discernable to ordinary people.

2. In the event that an A’kum does the tasting, do we require the he should tell us about the taste masiach l'fi tumo? Masiach l'fi tumo means that the taster does not know that we are depending upon him to permit or forbid the food. It is abbreviated and refered to as maslat is the Hebrew. Or is this requirement unnecessary? In general we assume that an A’kum will lie if he knows that a Jew depends on him

Generally the Torah prohibits an A’kum from being an acceptable witness except in the case of an agunah. An A'kum can give evidence that a missing husband is dead, thus enabling the wife to remarry, only under the condition of maslat. One may ask, perhaps maslat is only acceptable in the case of an agunah where we are lenient? Both the Shach and the Taz answer that in the case of eissur and heter, we also accept his opinion based on maslat because it is not a question of evidence, but a giloui milta (revealing of information that is available to all).

3. Gemora: Hullin 97a:

Braissa: One should not cook milk in a vessel in which meat was cooked. If it was cooked, it is forbidden when the meat gives a taste to the milk (notan ta'am). One should not cook hullin in a vessel in which trumah was cooked. If it was cooked, it is forbidden when the trumah gives a taste to the hullin (notan ta'am).
Said Rava: I had a problem, at first, understanding the teaching of the Braissa. The case of trumah is understandable since a Cohen can taste it, but in the case of meat in milk, who could possible taste it?

Rava did not understand the practical application of this case.For in this case a pot was used to cook meat and then re-used to cook milk. This pot would prohibit the milk if it was possible to discern the taste of the meat in the milk. How could a Jew taste the milk if it was possibly prohibited.

When Rava heard that Rabbi Yochanon taught that a dish of meat into which an issur had fallen can be given to a k'fela arameh (an A’kum who is an expert in tasting) to ascertain whether he could taste the issur, he answered, so too in the case of the milk cooked in a meat vessel, a k'fela arameh, can be relied upon.
(The Gemora continues):For Rava said, the Rabbonon say by taste, the Rabbonon say by k'fale and the Rabbonon say by sixty.

There are three possibile ways to test the permissability of a two substance mixture:

1. When the mixture may have the taste of a food which is permitted to one Jew and forbidden to another. For example: Trumah and Hullin (which are permitted to a Cohen and forbidden to a Yisroel) or something which an individual has taken a vow not to eat ot drink. In these cases we give the mixture to a Jew to whom it is permitted to check whether the taste which is forbidden to his friend can be discerned.

2. When the mixture might contain a taste which is forbidden to a Jew, we may rely on a k'fela arameh.

3. In two cases we may rely on the rule of sixty (i.e. if the issur is more than one part in sixty of the mixture it is forbidden and if less, it is permitted):

1. When the mixture is min b'mino. In such a case both the heter and issur substances are of the same type and thus it is impossible to discern the taste of one in the other.
2. Where the mixture is min bs'eino mino and there is no k'fela arameh available.

Take note of the fact that the Gemora uses the term k'fela arameh three times. This suggests that the tasting must be by an expert and that an ordinary A’kum is not sufficient. On the other hand, in the case of Trumah, the Gemorrah refers to a Cohen without qualification, suggesting that the tasting does not have to be by an expert but that any Cohen may taste. This discrepency will be explained by the Rishonim.

4. There three possible ways to understand the Gemora:

1. If the requirement for a k'fela is based on tasting there is no logical reason to distinguishing between an A’kum and a Cohen. In both cases an expert would be needed, and an ordinary person would not be reliable. However, as we have learned elsewhere, there is a distinction between an A’kum and a Jew in that with an A’kum we would also require maslat.

2. If the requirement for a k'fela is based on credibility, then we would only require an expert in the cases which where we employ an idol-worshipper. For an idol-worshiper's credibility is questionable. Nonetheless, we would maintain that in the cases where we use a k'fela (an expert), the expert will not lie and therefore we can depend on his word. We say based on the fact that his livelihood depends on his reputaion as an expert taster and therefore he will not wish to damage his reputation. We may even say that this factor alone will establish his credibility without maslat. In the case of a Jew the tasting of an ordinary person would, however, be reliable.

3. It is possible to maintain that there is no requirement for an expert at all. The Gemorrah refers to a k'fela only because it is common to use an expert to taste, but there is no necessity for this. Again, as we have learned elsewhere, there could be a distinction between an A’kum and a Jew. An A’kum would require maslat. Alternatively, it is possibile to hold that we accept his opinion even without maslat. For, it is not a question of evidence, but of giloui milta (revealing information that is available to all).

5. The views of the Rishonim.

1. Rashi:
Rashi comments: "Leta'ameh k'fela (an A’kum Baker) This comes to tell us that it is permissible to rely on him ‘maslat’. We do not tell him that we need him for a matter of eiser and heter."

Rashi requires both factors: 1.The A’kum is an expert and 2. He is maslat. It would appear that Rashi's reason for requiring an expert is based on the experts superior tasting ability. Therefore an expert would also be required in the case of a Jew. This view seems to be like the first possibility above.

2. Tosefot:
Tosefot comments: "We rely on a k'fela even though he is a idol-worshipper. Since he is a k'fela he does not lie, so as not to lose his standing as an expert."

Tosefot clearly state that the reason for requiring an expert is based on his credibility. They do not expressly state whether a non-expert would be believed if he were maslat. It appears that this is an open question in the understanding of Tosefot. We can infer that a Jew is considered reliable even if he is an ordinary person and not an expert. This view seems to be like the second possibility above.

3. Rashba:
The Rashba holds that if the A’kum is a k'fela we do not need him to be maslat. If he is not an expert we can rely on him if he is maslat. Clearly according to the Rashba the reason requiring an expert is credibility.

4. Rambam:
The Rambam (Halachot Macholot Asurot: Chapt.15, Halacha 29/30) holds that we may rely on any A’kum. We do not require maslat. It would seem that since this is a question of gilui milta and not of evidence, we do not assume that the A’kum would lie. We therefore neither require expertise in taste nor special credibility. This view seems to be like the third possibility above.

6. The views of the Poskim:

1. The Shulchan Oruch ( Simon 98:1) states, "Eiser that is mixed with heter min sh'aino mino should be tasted by an A’kum. If he states there is no taste of eiser... it is permitted. It is necessary that he does not know that we are relying upon him, maslat.

On the face of it, the Shulchan Oruch makes no mention of a k'fela. It merely requires any ordinary A’kum provided that he is maslat. This appears to be unlike any of the four shitot of the Rishonim above. However, it is clear from the Beis Yosef that the Shulchan Oruch holds like the Rashba. In addition to the din stated in the Shulchan Oruch, if the A’kum is indeed an expert, we may rely upon him without maslat.

2. The Rama writes: "Today we are not nohag (accustomed) to rely upon an A’kum at all. We measure everything by sixty."

Difficulties of the Achronim with the Rama:

1. The Achronim ask about the source of the Rama's law. It is not logical to assume that either the expertise or the credibility of an A’kum through maslat was worse at the time of the Rama than at the time of the Rishonim. Why should he not be reliable on the basis of expertise or maslat or both?

Rabbi Akiva Eiger explains the position of the Rama by saying that the Rama takes into account the stricter ruling of all the above Rishonim. We must explain, however, why an A’kum is not reliable on the basis of both expertise and maslat together.

We have seen that Rashi requires a k’fela who is maslat. The k'fela does not know that he is being asked to clarify eiser and heter and, although, we need him for his expertise, in order to rely on his tasting, we cannot inform him that we are relying on him. According to Tosefot, however, he must be told. For only when he knows that we rely on him does he have credibility. We do not require his expertise in order to rely on his tasting, but rather to insure his credibility. Because we cannot satisfy both views, the Rama holds that we cannot rely on an A’kum at all.

The Matei Yehonaton, commenting on the Shulchan Oruch, asks on Rabbi Akiva Eiger's explaination of the Rama: Let us ask two k’felas, one maslat and one who knows that we rely on him for eiser and heter?

2. There is another difficulty with the Rama. If we are concerned with all the stricter rulings, how could we rely on a regular Cohen in the case of Trumah or a regular Jew in the case of a neder? We should require an expert in order to take into account the apparent view of Rashi who requires expert for his discernment of taste. However, the Shach learns the Rama as stating that we do not rely on an A’kum, but we do rely on a Jew in an appropriate case without the requirement of being an expert.

It may be possible to answer fthe objections against Rabbi Akiva Eiger with the Tiferet Yacov's explaintion of Rashi. The Tiferet Yacov'sexplains the reason why we need a k'fela who is maslat and not a regular A’kum who is maslat is not because of a general concern that an expert has a finer sense of taste, but because a regular A’kum who is maslat will not pay so much attention to be able to discen the taste. Therefore we cannot rely on him. Whereas an expert can always be relied on to discern a taste. A Cohen, on the other hand, since he knows that he is being asked to taste for the purpose of eiser and heter will take notice and can be relied on even though he is not an expert. Further, the Tiferet Yacov observes that Rashi does not require us to tell the k’fela that we need him for eiser and heter. We may tell him that we want to know if there is the taste of the eisur for some other reason such as for matters of health. If we also have to take into account this possibility in Rashi, we cannot rely even on two k’felas as was suggested in the difficulty of the Matei Yehonaton.

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