Sunday, May 15, 2005

Halav Yisrael

Why I eat OU-D:

(NOTE: Consult your rabbi on this matter, although you presumably already have.)

The Orthodox Union certifies as kosher-dairy (OU-D) food that is dairy, even if not Halav Yisrael. The question that arises is how they can do so (their explanation is here) and, even if they choose to be lenient, perhaps to accomodate those who would otherwise eat non-kosher, how I can rely on such a leniency. The following is my personal approach. Note that this is an ex-post-facto explanation, because I was consuming non-Halav Yisrael long before I learned this material, and my rabbi does also even though we have never discussed the matter.

The Mishnah (Avodah Zarah 35b) tells us that the milk drawn by a non-Jew is considered non-kosher because there might be non-kosher milk mixed in with it. It is for this reason that we can only drink Halav Yisrael, milk drawn by or under the direct supervision of a Jew.

However, the question remains whether this prohibition is still in place when one is sufficiently certain that there is no non-kosher milk mixed in. Is this a rabbinic decree that remains in effect until it is officially annulled by the proper authorities, or is it a pragmatic prohibition that only applies when the reason exists?

The Mishnah (AZ 29b) states that cheese made by a non-Jew is also prohibited, and the Gemara discusses the reasons that it might be non-kosher.

The Rambam (Mishneh Torah, Hilkhos Ma'akhalos Assuros 3:13) writes:

Therefore, the law is that any milk that is in a gentile's possession is forbidden because he may have mixed into it milk from a forbidden animal. A gentile's cheese is permissible because milk from a forbidden animal cannot congeal. However, in the time of the sages of the Mishnah they decreed against gentiles' cheese and prohibited it...
The comparison of the Rambam's language in formulating the prohibition against cheese and the prohibition against milk is telling. The latter he states is a decree. The former, clearly, is not. The implication is that when there is no suspicion of non-kosher ingredients, milk is permitted but cheese is not.

This inference was made by the Radbaz (Responsa 4:74), who ruled accordingly. Others ruling in this way are the Rashbatz (Tashbetz 3:143; his son, Rashbash (Responsa 554); the Peri Hadash (Yoreh De'ah 115:6); the Or Ha-Hayim, in his Peri To'ar (115:2); Mahari Bruna (Responsa 78). Tosafos (Avodah Zarah 39b) might also allow this.

However, this leniency is not brought down in Shulhan Arukh, Yoreh De'ah 115, and the Rema seems to rule against it in par. 1. Therefore, non-Halav Yisrael milk should be prohibited regardless of how certain we may be that it is strictly cow's milk. If it isn't milked by a Jew, it should be considered non-kosher due to an official rabbinic decree. In particular, the Arukh Ha-Shulhan (ad loc. 5-6) is particularly insistent that it is prohibited.

However, the Darkhei Teshuvah 115:6 has a long list of posekim who debate whether normative halakhah should follow this leniency, despite its absence from Shulhan Arukh, with many authorities on both sides of the issue.

Because there is such a strong minority opinion to be lenient on this issue -- much stronger than for such leniencies as saying kiddush on a tiny cup of liquor or not eating in a sukkah on Shemini Atzeres -- the Hida in his Shiyurei Berakhah (Yoreh De'ah 115:1) rules that except in places where the custom is to be lenient, one must be strict. Clearly, where the custom exists to be lenient on this matter it can be followed without hesitation.

It is my contention that the dominant custom in America has been, and continues to be, to rely on this strong minority opinion and consume non-Halav Yisrael when there is no question of non-kosher mixtures. Since that is the case, this custom can be followed le-khat'hilah and without hesitation.

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