7/07/2005

''Brachot' on Non-Kosher Food

As I mentioned in my earlier post on this issue, the Shulkhan Arukh is pretty clear on this issue. He writes in OC 196:1:
“If one ate a prohibited food, even if it’s only Rabinically prohibited, he may not be included in a zimun, nor should he make a bracha on it, not before nor after [he eats]."

Mishna Berurah (196:3) explains the SA’s rationale:

“Since it’s a prohibited food, and there is a sin in eating it, he is cursing God with his bracha, as it says (Psalms 24) ‘One who blesses the robber (botzei’a) curses God’”

In OC 204:9 the SA continues:

“ If one ate or drank a prohibited food because of danger, he makes a bracha both before and after.”

The central text of this issue is a fairly well-known braita which the Mishna Berurah refers to in his comment. This beraita appears in several places in the Bavli (Sanhedrin 6b), in the Yerushalmi (Sanhedrin 1:1, 18b), and in the Tosefta (Sanhedrin 1:2). Amazingly, there are minor variations in these three occurrences which can have strong practical ramifications. The three occurrences:


תוספתא מסכת סנהדרין (צוקרמאנדל) פרק א הלכה ב

ר' אליעז' בן יעקב אומ' מה תל' לומר ובוצע ברך ניאץ י"י משלו משל למה הדבר דומה לאחד שגנב סאה של חיטין טחנן ואפאן והפריש מהם חלה והאכיל לבניו היאך זה מברך אין זה מברך אלא מנאץ על זה נאמר ובוצע ברך ניאץ י"י:

תלמוד בבלי מסכת סנהדרין דף ו עמוד ב

רבי אליעזר אומר: הרי שגזל סאה של חטים וטחנה ואפאה והפריש ממנה חלה, כיצד מברך? אין זה מברך אלא מנאץ, ועל זה נאמר: ובוצע ברך נאץ ה'.
תלמוד ירושלמי מסכת סנהדרין פרק א דף יח טור ב /ה"א

תני רבי ליעזר בן יעקב אומ' מה תלמוד לומר ובוצע ברך נאץ יי' משלו משל למה הדבר דומה לאחד שגנב סאה חיטין והוליכה לנחתום והפריש חלתה והאכילה לבניו הרי זה מברך ואינו אלא מנאץ

Rather than translate each source, I will give the general thrust and point out the variations. Each gives a metaphor to explain the verse in Psalms cited by the Mishna Berurah. In this metaphor, a person steals wheat, makes bread, makes a bracha – the bracha is a curse.

The variations:
• The Tosefta describes how he feeds the bread to his children, and asks rhetorically, “How can he bless? This is not blessing; it’s a curse!”
• The Bavli doesn’t talk about eating the bread. The person, upon baking, wishes to separate the challah- gift for a Kohen, a mitzvah which mandates a bracha. Upon this the beraita asks rhetorically, “How can he bless? This is not blessing; it’s a curse!”
• The Yerushalmi follows the Tosefta until the last line. Rather than ask a rhetorical question, it simply states, “Behold he makes a bracha, and it is nothing but a curse”.

It’s very difficult to determine the original text of any of these sources, but it is nevertheless clear that all three of these variants go back a long way. It also just so happens that the differences between these variants reflect a four-way dispute among the Rishonim in this sugya!

• Our version of the Bavli seems to be discussing what’s called ‘mitzvah ha-ba’ah be-aveira’ – a mitzvah which is the result of a transgression, in this case making an offering of stolen bread (another classic example is eating stolen matzah – see Yerushalmi Challah 1:4, 58a). The mitzvah itself is not regarded as a mitzvah, and an attempt to make a bracha on a mitzvah like this only further aggravates the hypocrisy. To bless God who has “sanctified us with his mitzvoth and commanded us…” over and act which is an act of sheer hypocrisy, is no blessing at all. R’ Nissim and Rabbeinu Yonah (to both Sanhedrin and Brachot) invoke mitzvah ha-ba’ah be-aveirahi ad loc. As we’ll see, it also seems to be the position of the Ra’avad (on Rambam Brachot 1:19) who insists that the sole determinant of whether one should make a bracha is whether or not he enjoyed eating it (hana’ah – based on Brachot 35a), and in this case he definitely did! R’ Tzvi Pesach Frank (Har Tzvi OC 1:38) is the only source that I’ve seen that explicitly distinguishes between brachot on a mitzvah and brachot on food items in this context, though it seems like a very intuitive distinction, and is at least implicit in several Rishonim.

• The Yerushalmi can be understood to be saying that indeed, even when eating stolen food, one is not absolved from making a bracha. Nevertheless, such a bracha is hypocritical and actually constitutes a ‘curse’ of God. [ Imagine seeing someone steal food and then bless on it, and imagine what that makes you think about that person’s Object of worship]. This is how Tashbetz (4:3:29) and Rosh (Brachot 7:2) understand this beraita. Tashbetz even adds the following argument for making a bracha: “Someone who ate garlic and has bad breath, should he eat more garlic and have even worse breath?!” – i.e., just because one stole, doesn’t mean he should compound the problem by not making a bracha!

• The version in the Tosefta clearly implies that the problem is with making a bracha upon eating the food, because of the hypocrisy involved. However, there are two ways to understand why one is absolved from making a bracha:

o Because such a bracha isn’t really a bracha. The hypocrisy transforms it into a curse. Thus, technically one still may be obligated to make a bracha, but with no way of discharging the obligation, it becomes moot. This appears to be the position of Rambam (Brachot 1:19) and Rashba (Brachot 45a), as well as the Shulkhan Arukh and latter-day authorities.
o There’s no obligation to make a bracha, because eating prohibited foods, with regard to making a bracha, is not even considered eating! This is the position of Tosafot and Ritva (Both on Brachot 45a s.v. achal).

A practical difference (nafka mina) between these last two positions would be a case of danger or unavoidable accident. According to Rambam et al., there’s no hypocrisy, and therefore the obligation to make a bracha can be discharged. According to Ritva, such an act is still not considered ‘eating’ because of the prohibition, and even adds that if he has no other choice, then he doesn’t actually derive benefit from the eating! (The Ritva there is fantastic. Very worthwhile to see inside because I’m not doing it justice. It’s beautiful).

To summarize, there are 4 positions in the Rishonim:
1. Ra’avad, R’ Yonah – make the bracha, because, hey, if you enjoy the food, you’re obligated to make the bracha.
2. Tashbetz, Rosh – make the bracha, even though it’s hypocritical, because you’re not absolved from the obligation to make a bracha just because you stole the food.
3. Rambam, Rashba (Paskened by SA) – if you’re violating something by eating, then your bracha is an act of hypocrisy and you’re better off not making it.
4. Ritva, Tosafot – any time one eats a prohibited food, even if there’s no direct violation, no obligation to make a bracha has been generated.

It’s worth pointing out that the Magen Avraham, and in his wake Mishna Berurah, advocate bentching in such a situation for two reasons:
a) we’re machmir on a Biblical obligation like bentching
b) in a case where he didn’t realize it was not-kosher until after eating it, there’s not ‘curse’ involved (this is directly against the Rambam, I might add).

There are other sources which might indicate one way or the other, but each position succeeds in neutralizing any potential disproof against it.

That said, I believe that the Ra’avad hit the nail on the head with this one. Brachot have an educational value and transformative potential. Any time we enjoy this world, we are enjoined to link that joy back to God Who created it. It’s counterintuitive to withhold that element from any joyful experience; after all, even if the pleasure is prohibited, it’s still a God-given pleasure.

[I’m also convinced that the Ra’avad’s understanding of the Mishna in Brachot 7:1 is more plausible, and I also believe that at least the Bavli was being very, very precise in its formulation of that braita].

But what can we do? The Shulchan Arukh and everyone else in his wake paskened like the Rambam!

I’d like to suggest that the way we understood the Rambam (indeed, the way the Taz and Mishna Berurah understand the Rambam), that if there’s no act of hypocrisy, then the obligation to make a bracha yet remains, would apply to most contemporary examples of eating prohibited foods. Whether we’re talking about ‘captive children’ or not, it’s very rare that people eat non-kosher as an act of rebellion, or would be hypocritical by trying to acknowledge God when eating, even if the food is not kosher. In essence, we would be expanding the Rambam’s category of ‘oneis’ to include those who simply weren’t educated about kashrut. Thus, they may be encouraged to say brachot, and even the Shulchan Arukh would agree. Given that this understanding is at least plausible within the Rambam, and given that a strong majority of remaining Rishonim would advocate brachot on non-kosher food in any event, I don’t feel that this position is reversing any kind of trend in psak.

Nevertheless, there are two issues that still remain:
1. Is advocating brachot on non-kosher food educationally sound? Would it be construed as ‘condoning’ the consumption of non-kosher food? If yes, then perhaps it’s not the best idea.
2. Though the understanding of the Rambam above makes sense, it’s difficult to maintain that the Rambam himself would accept it. If the dispute remains, then the accepted position, the Rambam as paskened by SA, should remain in practice, especially since one runs the risk of making an unnecessary bracha.

Therefore, I’d advocate the following:
In a situation where one is looking to increase observance, I would encourage them to begin saying brachot and bentching in English (or whichever language is their mother tongue) if they’re eating non-Kosher, but in Hebrew if they’re eating kosher. This resolves the two remaining issues because:
1. By maintaining this distinction between Kosher and non-Kosher, there’s no risk of ‘condoning’ the consumption of non-Kosher, which gets a ‘lesser’ form of the Bracha, though one that’s still perfectly legitimate.
2. The Arukh Ha-shulchan and Chasam Sofer maintain that there’s no issue of making an unnecessary bracha if it’s in a language other than Hebrew. Even though this opinion isn’t accepted as a mainstream position, it warrants use as a se’if le-hakel – a position that can even further mitigate the chance that one would make an unnecessary bracha (i.e., the Rambam might be wrong. Even if he’s right, he might consider most contemporary situations oneis. Even if he doesn’t, if the bracha is in a foreign language, it might not run the risk of a bracha le-vatalah).

Hopefully, this is a temporary solution as we hope for the day that the world is filled with knowledge of God as waters fill the sea.

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