11 Feb Treifing Food
What if someone renders your food non-kosher? You are cooking a meat meal and someone pours milk into it, rendering it completely forbidden. You must throw the food out and kasher the pot. Can you sue that person for damages?
I. SPIRITUAL DAMAGE
The Mishnah (Gittin 52b) lists three similar cases in which the person who causes damage is obligated to pay if he damages intentionally but not if he does it accidentally: Someone who 1) renders impure another person’s produce (so you cannot eat it pure), 2) mixes a regular crop with terumah (so only a kohen can eat it), 3) mixes regular wine with wine used for idolatrous libations (so all the wine is forbidden). In each case, the damage you cause is purely religious. From a physical perspective, there is nothing wrong with the food. The damage is real but invisible to the eye — hezek she-eino nikar.
According to the Gemara (ibid.), you are not biblically obligated to pay for this kind of damage. However, the Sages imposed a penalty to prevent mischievous people from causing financial damage without penalty. In the Gemara (ibid., 53a), Rav and Shmuel disagree whether this rabbinic penalty is a general rule or confined to these three cases, which may have been common problems in Mishnaic times. It is not clear which we follow.
The Rambam (Mishneh Torah, Hilchos Chovel U-Mazik 7:2), in listing these three cases, adds: “or the like” (ve-chen kol ka-yotzei ba-zeh). From the phrase “or the like,” it seems that Rambam believes the penalty applies to all hezek she-eino nikar. However, the Shach (Choshen Mishpat 385:1) lists a number of authorities, including the Ramban, from whose words he deduces that they believe the penalty applies only to the three Talmudic cases. Be that as it may, everyone agrees that someone who accidentally causes hezek she-eino nikar is not required to pay a fine.
II TREIF DAMAGE
If causing food to become non-kosher constitutes hezek she-eino nikar, then someone who does so accidentally would be exempt from paying for the damage he has caused. Rav Avraham Shmuel Binyamin Sofer (Responsa Kesav Sofer, Choshev Mishpat 26) addressed a question of some who intentionally threw a piece of non-kosher meat into someone else’s pot that was on a fire. Rav Sofer quotes Tosafos (Bava Basra 2b s.v. ve-chayav). Tosafos say that causing everything in a field to become kilayim by planting a vine there does not constitute hezek she-eino nikar because people can see the vine in the field. Even though the field’s product does not change visibly, the field itself has a visible change. In contrast, someone who renders food impure causes hezek she-eino nikar even if he introduces a visible insect onto the food. Even if you see the insect, you have to know that the food has been rendered susceptible to impurity through a gemar melachah. Since knowing about the damage requires independent knowledge, the damage must be eino nikar.
Similarly, says Rav Sofer, if you throw meat into a pot, how can an observer know that the meat was non-kosher? Since recognizing the damage requires independent knowledge, it must constitute hezek she-eino nikar. However, if the meat is obviously non-kosher — it’s a piece of ham or bacon that is easily recognizable — then the damage is nikar. Therefore, someone who accidentally drops a piece of bacon into a pot of otherwise kosher food must pay for the damage he caused.
III. CATERING DAMAGE
Rav Yitzchak Zilberstein (Chashukei Chemed, Avodah Zarah 59b) addresses the case of a new worker for a caterer who realized they were 5 chickens short of a large order for 500 meals. The enthusiastic worker went across the street and bought with his own money 5 chickens and put them in the oven with the other chickens. While these 5 chickens were supervised by an excellent kosher supervision agency, it is a different agency than the one that supervises the caterer. Due to agency rules, those 5 chickens cannot be served. The kosher supervisor (mashgiach) detected this but realized that it was an accident. However, based on the rules of his agency, he had to instruct the worker to throw out all 500 chickens.
Must the worker pay for the 495 of the caterer’s chickens that were discarded? The Shulchan Aruch (Choshen Mishpat 306:5) and Rema (ad loc.) rule that a shochet who renders an animal definitely non-kosher must pay for the damage he caused. However, if the animal is non-kosher out of doubt, then the shochet cannot be forced to pay. The Shach (ad loc., 10) quotes the Terumas Ha-Deshen (1:186) who disagrees. Rav Zilberstein believes that the Terumas Ha-Deshen is correct in cases where a rule is firmly established in standard guidebooks, even if the rule was determined based on doubt. A shochet is negligent if he causes damage forbidden in standard guidebooks.
In the case of the caterer, the rule is clear and the worker should have known it. Although perhaps he can claim ignorance because was new. Regardless, adds Rav Zilberstein, the damage caused by the caterer’s worker constitutes hezek she-eino nikar. An observer cannot tell the difference between chickens under different kosher supervisions. Therefore, the worker is not liable to pay for the 495 chickens he caused to be discarded.