Torah from Our Beit Midrash

This week, we moved from discussing the principle of ta'am ki'ikar, the taste of something is like its essence, to its practical application in halakha.   If there is a mixture of kosher and non-kosher food, how are we to determine whether the non-kosher food can be tasted?  The Mishna and Gemara speak of two ways to measure this - one, by actually tasting - te'ima, and the other, by a quantitative approximation - the standard of 1/60th.   The question is how these two measurements relate to one another.  Which test is the primary one?  Can either test be used, or is it possible that both tests are necessary?

In the mishnayot (Shi'vi'it 7:7, Challah 3:10, Arlah 2:7, Avoda Zara 5:2 and 8, Hullin 8:3, Tosefta Trumot 8:22), we find that whenever it deals with a mixture of kosher and non-kosher food, it says that it is a problem if it is noten ta'am, if it gives taste, and does not tell us how to determine that this is the case.  The only time the mishna describes a way to measure this is when it is dealing with a case of min bi'mino, of like objects, so that no real tasting can be done (Hullin 7:4-5, and Zevachim 8:6).  The implication of all of these mishnayot is that when it is a mixture of min bi'eino mino, of like and unlike, then it must actually be tasted to determine if there is a problem.

Now, how can this tasting be done?  This is answered by R. Yochanan and Rava (Hullin 97a), that if it is kosher food that got mixed in (for example, some milk got mixed into the vegetable soup, and we want to know if it is now milkhig), we can taste it ourselves to determine whether it is a problem.  And if it is non-kosher food that got mixed in, we can ask a non-Jewish chef to taste it (Rishonim discuss whether in this case a chef is actually needed, or we can rely on any non-Jew to taste it).

What do we do, however, if it is min bi'mino that got mixed together?   Here is where the mishna tells us to use a comparable model.  If it is meat and a gid hanashe, the forbidden sinew, that were cooked together, we look at it as if the meat were a turnip and the gid hanashe were a piece of meat, and if the proportions are such that the meat would impart taste into the turnip, it is a problem.  Now, this seems to be a non-exact model, as a turnip will probably easily absorb the taste of the meat (however, see Meiri, who tries to argue that it is a precise model).  This makes sense, as we are trying for an approximation, and thus we want to be more strict to play it safe. 

[Interestingly, when blood of sacrifices gets mixed with wine, the mishna (Zevachim 8:6) states that we treat the wine as if it were water, and if in such a case the water would have a bloody appearance, then the blood is not batel and can still be sprinkled on the altar.  [When we are not dealing with food items, bitul  is measured by the mixture's appearance not the mixture's taste, on the basis that sight is our primary sense and that appearance is our primary means of identification of objects.]  The two cases are similar in that the model we use is one where we imagine a neutral substance (when it is in a turnip/water, as opposed to meat/wine) in which the issur/additive (gid hanashe or blood) is mixed.  This leads in the case of the gid hanashe to a stringency - we have to throw out the stew, and in the case of the blood to a leniency - we can still sprinkle the mixture on the altar.  It seems that Chazal understood that regardless of whether the model it is strict or lenient, when the actual mixture cannot actually be measured, we use a model of an additive into a neutral, and easily changed, substance.]

The Gemara then describes an evolution of moving from this approximation model to a more standard, quantitative measure.  First it states, in contrast to the mishna, that one should not imagine an entirely different mixture, but rather just change the issur and use the model of an onion.  Treat the prohibited item as if it were an onion, says the Gemara, and determine if an onion the size of the issur would impart its taste into the current mixture.   This model makes more sense, as it keeps the heter as it is, and just creates a substitute for the issur.  An onion, although probably more pungent than the issur, is used because it even an onion can't be tasted, then you can be certain that the issur cannot be tasted.   

The Gemara then records a shift from such substitution approximations to more quantifiable approximation, and tells stories of rabbis who would approximate, or considered approximating, based on numbers such as 30, 43, 45, 47, 60 and 61.  That is, if there is 30, or 45, or 60 times as much heter as issur, then the food is permissible.

In the end, the Gemara settles on the number of 60, and states that this is the number to be used at all times for determining if the issur is batel.  Rava (Hullin 97a-b) pulls all this together and states that if there is a non-Jew available to taste it, one can rely on that, and if there is none available, or if the mixture is min bi'mino, then one uses the number 60.

That would seem to be the end of the story.  However, the issue is not so simple, for the Gemara then introduces an entirely new sugya.  Right after 1 1/2 pages on discussing this evolution of approximation of taste, the Gemara introduces a statement in the name of Bar Kapara that kol issurin she'bi'Torah bi'shishim ­- all prohibited foods in the Torah are determined by 60, together with another tradition that all foods are determined by 100.  The Gemara then goes on for a full page discussing this statement.  In contrast to the earlier sugya, this passage derives the need of 60 or 100 from a Biblical verse, suggesting that it is an independent standard, and it never hints that 60 is a way of determining the presence and absence of taste.  More than that, this sugya seems prima facie to state that the principle of ta'am ki'ikar is not d'oraitta, and this is how Rashi reads this sugya. 

Read thus, this sugya is not concerned with taste, and we are not trying to approximate taste.  Nevertheless, for bitul to occur, it is not enough to have a simple majority of heter, but rather an overwhelming majority is needed.  Or, in the words of Rambam, something is only batel when is proportionately and quantitatively insignificant, m'otzem mi'uto (Rambam, Laws of Forbidden Foods, 15:4).    The numbers of 100 and 60 thus make a great deal of sense.  If the issue is less than 1/100, it is less than 1%, and hence totally insignificant.  Similarly, 60 is a number that we use for measurement (mintues: hour, seconds: minute) because of its high divisibility, and less than 1/60th could also be a measure of total insignificance.  (My student Dani Passow found on Wikipedia that the Babylonians had a 60-based number system going back to 3100 BCE.  This would work very nicely with my thesis).

It thus seems that there were two schools early on.  The school of Rebbe, that was concerned with ta'am and that created models to determine ta'am when it could not be directly measured.  This school finally came to 60 as the quantifiable measure for determining ta'am.  The general principle of this school was kol issurin she'bi'Torah bi'noten ta'am (Tosefta Trumot 8:22) - all prohibitions in mixtures are measured by whether they give taste.  The opposing school, that of Bar Kapara, was unconcerned with ta'am and defined bitul based on something's quantitative insignificance, otzem mi'uto.  The principle of this school was kol issurin she'bi'Torah bi'shishim ­(Hullin 98a) - all prohibited foods in the Torah are determined by 60.  The measure of 60 was always required, and ta'am, if it were a problem, was at most a rabbinic one.

How did the Rishonim reconcile these two sugyot - one that focuses on taste as the core concern, and on that focuses on 60 as such?  We find 3 schools in the Rishonim regarding this - Tosafot, Rashi (and Ramban), and Rambam.  Tosafot (s.v. Kol (98a), s.v. Ela (99a), and similarly Rosh and Rashba) states, like the mishna, that taste is the primary concern.  If something can be tasted by a non-Jew, that suffices, even if there is more than 1/60th of the issur in the mixture.  If it cannot, then 60 can be used as an approximation of taste.  Because 60 is a worst-case approximation, if you know that you have less than 1/60th, you do not even need to find a non-Jew to taste it, because it surely does not give any taste.   [Tosafot so emphasizes taste, that he does not acknowledge that the sugya of  60 and 100 are presenting a different model, and rather attempts to reconcile it with the school that everything is based on taste - see Tosafot 99a, s.v. Ela.]   This approach is the standard one in the Rishonim.

In opposition to this is Rashi, who focuses primarily on the need for 60.  Rashi states that ta'am ki'ikar is not d'oraitta, and thus taste is not the primary concern.  Rashi even suggests that the need for 60 - independent of taste - is a Biblical requirement.  For Rashi there are two criteria for bitul - first and foremost, it must be quantitatively insignificant - it must be less than 1/60th.  After that is satisfied, it needs to be tested - if possible - to make sure there is no taste, in order to address the Rabbinic issue of ta'am.  Because for Rashi 60 and taste are unrelated, 60 cannot be used as an approximation of taste, and both tests are necessary.   Certainly for him, not tasting it does not suffice, as the primary concern is 60. 

Ramban (Hullin 98a, s.v. Kol Issurim) follows Rashi's model, but nuances it somewhat.  Ramban states that if all that is present is taste - if, for example, the piece of pork fell into the soup and was then removed - then one only need to nullify the taste, and does not need to worry about 60 as an independent criteria.  [In this case, 60 can be used to approximate taste, but if a non-Jew tasted the soup and said the pork could not be tasted, it is permissible even if there is more than 1/60th.]  This is the case of ta'amo vi'lo mamasho, the taste and not the essence, which both Rashi and Ramban state is not a Biblical problem of ta'am.  In contrast, when the pork itself is mixed in - when it is ta'amo u'mamasho, the taste and the essence - then in addition to not being able to taste it, there must be 60 times as much heter to create bitul.  When there is real issur present, it is not enough to negate its taste, but it's very essence must be negated by virtue of it being so quantitatively insignificant, m'otzem mi'uto.

Last is Rambam's model (Forbidden Foods, 15:1-5, 13-14, 17, 21-24, 29-30).  Rambam states that ta'am ki'ikar is d'oraitta and therefore the primary test is to taste it or, if it is issur, to have a non-Jew taste it, just like Tosafot.  However, if that test is not available - one cannot ask a non-Jew or it is a case of min bi'mino - then one switches to the track of quantities insignificance.  One uses the measure of 60 to define the presence of issur as quantatively insignificant, and not as an approximation of taste.  This leads to a departure from Tosafot's rulings.  According to this, even if you know that there is less than 1/60th, you must test it if testing is possible, because 60 cannot serve as a taste approximation (this is noted by Beit Yosef, siman 98). 

Rambam apparently derived this model of otzem mi'uto from other cases, such as trumah and arlah, where bitul is defined by small quantities and not by taste.   Misahnayot teach that when mixed in a min bi'mino mixture, Trumah is only batel in 100 times its amount, and Arlah and Kilayim in 200 times their amount.  Clearly this is about proportional insignificant and not about taste. Rambam puts 60 on this list, and makes it another case of proportional, quantitative insignificance.  Because of this grouping, Rambam makes a new ruling, and states that even when Trumah and Arlah are mixed in a min b 'eino mino mixture, one goes by taste, but - says Rambam - if there is no way to taste it, one must use the measure of 100 or 200  (the normal assumption would be that one can use 60 as an approximation of taste).  This is consistent with Rambam's approach - when taste is not possible, we switch tracks and go by quantitative insignificance.

In short, there are 2 models - taste and a trivial quantitative amount (1/60).  Tosafot makes it all about taste, and 1/60 as a taste-approximation;  Rashi states that there are two tests - taste for a rabbinic concern of taste, and 1/60 to create real bitul (Ramban - only when there is mamasho - the thing itself present);  and Rambam states there are two tracks - we first use the taste track (and 60 is meaningless here), but if that is not available, we switch to the track of quantitative insignificance.

In psak halakha, Shulkhan Arukh rules like Rambam, and ignores 60 as a taste approximation, while Rema rules like Tosafot, and states that taste is the primary test, but 60 can be used instead.  In the end, however, Rema states that we no longer use taste and always use 60 (this follows a general Ashkenazic approach to have simple, quantifiable standards).   So, in the end, while Rema starts with a Tosafot approach, the ruling to always use 60 most closely approximates Rashi's approach of always requiring 60.  This shift has a number of halakhic implications, to be explored in a later shiur.