01 Nov FOOD IN THE HANDS OF A NON-JEW

 There are many halachos which apply to leaving food in the hands of a non-Jew. Is there a difference between sending food in the hands of a non-Jew and basar shenisalem min ha’ayin? Which foods does this

halacha apply to? Does this issue always apply or only in certain situations? Is it permitted to allow a non-Jew to make a delivery of food? May one send his non-Jewish employee shopping? Many stores get

deliveries of bread in the morning in unsealed boxes. Is this permitted? Can Italian bread be sent to a store with the top of the bag opened? May one leave a sandwich unattended when on an airplane? These issues and much more will be addressed in this issue.

Basar Shenisalem Min Ha’ayin

There is a discussion in the Gemorah whether we must be concerned with the possibility of a bird taking unattended meat and switching it with non-kosher meat. We (Ashkenazim) follow the opinion that there is no such concern (even in a city where most butchers are non-Jewish), if it is found in the same place where it was left. This differs from the concern which we will be focusing on, which is the possibility that a human exchanged kosher food for non-kosher food.

Based on the above, our discussion will focus on sending food in the hands of a non-Jew, since for all practical purposes basar shenisalem

min ha’ayin is permitted (according to Ashkenazim).

Food in the Hands of a Non-Jew

Generally speaking, any food item which is entrusted or sent in the hands of a non-Jew requires a seal to ensure that the item was not exchanged. Items whose consumption is d’oraisa in nature require two seals, including but not limited to wine (see footnote),

meat, chicken and fish. Concerning Pesach, a food which the non-Jew may switch for chametz would require two seals. However, those foods whose consumption is of d’rabbanan in nature such as cooked wine, milk, cheese, bread (see later on), honey, and oil only require one seal.

Some explain that the need for two seals is because these items are expensive and the non-Jew might make an effort to exchange it for an

inferior product. Therefore, two seals are required as a deterrent. In addition, when there are two seals it would be a bother for the non-Jew to undo them and switch the product, so for d’oraisas we require two seals. Wine requires two seals because everyone likes wine and there is a concern of switching it for non-kosher wine.

Sender Will See the Seal

If the food product being sent by the non-Jew will eventually be seen by the sender (after he sent it in the hands of the non-Jew) then there is no concern the non-Jew will switch the product, since he is afraid that the sender will notice the wrong seal. However, if the sender will not see the product then it would require the two necessary seals, unless the messenger is informed that the receiver knows how the seals look.

Meat

Everyone knows the scandals which took place regarding switching

meats; therefore, one should require two seals and should not accept

meat without it.

Unreliable Frum Jew vs. Non – Jew

There are some who differentiate between an unreliable frum Jew and a

non-Jew in regard to these halachos. Some say that there is no need for two seals if the food is being sent through a non-Jew, and two seals are only required if the food is being sent through a unreliable frum Jew. The reason for the differentiation is that the Jew feels that he is above suspicion and might exchange the item, but a non-Jew knows that we are concerned about switching, so only one seal is required. As a matter of halacha l’maseh this is not relied upon l’chatchilah but only after the fact (b’dieved).

L’chatchilah or B’dieved?

There is a discussion if one is permitted to send items with a non-Jew if the food has the correct seal or seals. Some only permit the item after the fact (b’dieved), but prohibit the practice. The custom follows the opinion which permits it even l’chatchilah.

Hefker

If the item of food was left in a hefker place and not in the hands of the non-Jew there is no concern of him switching the food (we will see later how this relates to hospitals).

After the Fact

A food which was sent with a non-Jew without the required seals and was used by a Jew would render his utensils non – kosher.

Tevias Ayin

If one has a tevias ayin (recognizes) that this food is from a Jewish company because of the way the food is made or shaped, then there is no requirement for the food to have a seal.

Bread

The Shach is of the opinion that if there are no non-kosher breads on the market, then if the non-Jew switches the kosher (with a hechsher) bread with different bread (without a hechsher) it is pas paltar which is permitted. However, modern breads are made with non-kosher ingredients; therefore the heter of the Shach would not apply (see below).

Although the concern of switching with pas paltar may not apply if the non-Jews do not place non-kosher ingredients into bread, still we should be concerned that the non-Jew will switch the bread with pas ba’al habayis (bread which was made in a non-Jew’s home) which is not permitted.

Based on the above, one should not send kosher bread with a non-Jewish delivery truck and leave it outside, since there is no siman. Some explain that the Jewish owner might come to the store and see if his product is different. Therefore, the non-Jewish driver may be scared to switch the products (see below). Based on the lenient opinion, a kashrus agency is permitted to give a hechsher to such a company.

Some say that it is proper that a seal be placed on these boxes, thus eliminating even a slight chance of switching the product.

Italian Breads

It is common to deliver Italian bread in open bags (with a hashgacha) but without a seal. Is this is permitted?

There is an opinion in the poskim that says the same reasoning which allowed an unsealed bread delivery, can be applied to Italian bread, since the Jewish store owner will see the bread and know if it is switched. In addition, the non-Jew does not benefit from switching the kosher product for a non-kosher product (see below). However, in a non-Jewish store it is preferable to have a seal on the bread, even if it means the bread will be less tasty.

Baked Goods

Baked products which have a unique shape or look to them would not require a seal since one is able to tell if it is the kosher product or a substitute. However, if it is not identifiable then a seal is required. Since the price difference is greater for kosher than non-kosher the chances of switching is less of a concern and one seal is enough.

The Seals

We mentioned before that food sent in the hand of a non-Jew requires one or two seals. What is considered a seal? We will discuss this below.

The seal must be difficult for the non-Jew to tamper with or copy. There is a discussion in the poskim whether writing can be considered a seal. Some poskim say that numerous seals in one place are considered one seal, while others dispute this. In any case, one should try to put a seal (i.e. tamper proof tape)[46] in two places.

Plumbas are placed on chicken as a seal. This seal is very hard to tamper with. Therefore, according to some opinions, it is considered like two seals (this would also apply to any seal which is very hard to forge).Others say that the crates should be sealed and havethe name of the company on the box.

A vacuumed packed seal is a siman but should be imprinted with another siman as well.

Leaving a Non-Jew Alone in One’s Home 

All too often, both spouses work all day, and have the practice of leaving a cleaning lady or a repairman alone in the home. There is a possibility that the non-Jewish worker will take the kosher product in the home and switch it for a non-kosher food. Is this a real concern? If so, what are the ways to avoid this?

“Yotzei V’nichnas” (Goes and Comes)

One option to allow a non-Jew to remain alone in the home (or store)[50] is for one to “go and come” from his home; this is known in halacha as yotzei v’nichnas. This is permitted even l’chatchilah. Even a child may be used for the purpose, provided that he is old enough that the non-Jew will fear to do any switching in his presence. This age is nine.

This option applies even if the owner stays away for an extended period of time, as long as the worker is not aware of the owner’s schedule. The reason is that the worker is afraid to make an exchange, as he is concerned that the owner might return at any moment and catch him in the act. If you tell your worker, “I will be back in a number of hours,” then it is prohibited to leave a non-Jewish worker in the home, since the worker knows when the owner is returning and might switch the food. However, as mentioned below, if one is not concerned that the worker has any benefit from switching the food, it is permitted to leave the worker alone.

This option does not apply if the worker can lock the door, since he has no concern of being caught. If the Jew can enter the house (i.e. with a key) then the non-Jew may be left alone since the Jew can enter the home. However, if the Jew closed the door from the outside it is permitted to leave the non-Jew alone since he does not 

realize that he is alone in the home. In any case, if the non-Jew shows signs of not being afraid of you (i.e. does not listen to you) then he cannot be trusted alone in the home. If a security camera is installed in the home and the non-Jew knows you can look at it any time, then he may be left alone in one’s home.

What Constitutes Yotzei V’nichnas L’chatchilah

The l’chatchilah situation to leave a non-Jew in the home or store is when the Jew will be returning within eighteen minutes.

Concern of Switching

The only time a seal is required is if there is a concern that the non-Jew will exchange the kosher item for a non-kosher item. There are many details as to what it means “concern of being switched” which we will begin to discuss.

Benefit From the Switching

One main factor which determines whether or not a food requires a seal is whether the non-Jew will benefit from switching the kosher item with a non-kosher item. Some say that if the non-Jew will not benefit then one can send the food with him l’chatchilah (see below). However, others say one should try to avoid this when possible. As stated above, the halachos regarding benefiting from switching pertain to leaving a non-Jew alone in one’s home as well.

In any case, the halachos of switching apply as long as the non-Jew will benefit in some way from switching the kosher for non-kosher. 

The Non-Jew Does it to Spite

There is a discussion in the poskim if the non-Jew will switch the food just to spite the

Jew even if there is no real benefit from the switching.

The opinion of most poskim is that there is no concern about this issue.

Deliveries Left Outside

It is common for a supermarket to make a home delivery and leave the order outside without proper seals. However, the food is permitted since there is no reason why a non-Jew will exchange the food. If he is hungry then he will take it and you will notice that your order is missing some items.

Leaving Pots Unwatched

Obviously, a non-Jew alone in our homes has access to our pots. How is this permitted since the non-Jew can use our pots without knowing?

The halacha states that if one is not “going and coming” (yotzei v’nichnas) from his home then he should not leave his utensils with the non-Jew. The concern is that the non-Jew will add some non-kosher ingredients to a cooking dish in order to improve its taste.

If the Jew serves lunch to the non-Jew, there is no concern of a non-Jew cooking non-kosher with one’s pots. Others permit this practice since our utensils are placed in shelves with doors in an orderly fashion, and it would be obvious if the pots were used.

It is a good idea to be present when the non-Jew washes the dishes in order to make sure that she does not mix the meat and dairy together in the same sink (i.e. use the same sponge for both).

Some poskim say that if the non-Jew has cooking responsibilities in the home one must lock up the dishes if she is left alone in the

home.

Passing Through a Heavily Populated Area

It is permitted b’dieved to send food without a seal with a non-Jew who is delivering through a heavily populated area (even if not by mostly Jews). The reason is that he is afraid to switch the food, for someone might see him enter a non-kosher store and will tell the Jew who is getting the food. L’chatchilah one should not rely on this, and should send the food with the proper seal(s). If the delivery man will go through an all Jewish area to deliver the food then it is permitted to send the food without a seal even l’chatchilah.

The above is only true if there are people in that area, but if it is early in the morning or late at night where there are not too many people around then the food would have to be sent with the proper seal(s).

Food Sent With a non-Jew in a Car / Bus etc.

The above heter only applies if the non-Jew is delivering the food by foot or bike, but if he is traveling in a car or on a bus he can act at will. Therefore, a seal is required. For this reason, one should not send unsealed food with a car service since the driver can do what he wants (unless he is scared of getting caught and losing his job).

Airline Meals

One should not accept an airline meal if it is not double wrapped (aside from the kashrus issues of warming it in a non-kosher oven if it was not double wrapped) since the flight attendants may substitute it for non-kosher if there is no kosher meal available. There is a benefit for them because you will not be happy if you have no meal.

Leaving Foods in Hospitals etc.

It is permitted to leave food (i.e. meat sandwich) in a communal refrigerator or freezer in a hospital without the proper seal. There is no concern of the non-Jew switching the kosher for non-kosher since there is no benefit for the non-Jew to do so. Furthermore, none of the people present are the owners, and they all realize that they should not be touching other people’s food. Nonetheless, the food should be sealed and labeled “do not touch”.

Pizza Deliveries

It is very common for pizza to be delivered by a non-Jew to one’s home without a seal or tape on the box. Is this a concern?

As mentioned above, if there is no concern that the non-Jew will benefit from switching the food then there is no need for a seal on the package. The non-Jew derives no benefit by switching the kosher pizza for non-kosher, since if he is hungry he can buy pizza anywhere. However, others say that it is preferable to make sure that the pizza box is sealed with tamper proof tape.

Sending a Worker to go Shopping

Sometimes a non-Jewish housekeeper will be sent to the store to buy some kosher items.

Since she can benefit from buying less expensive non-kosher items and keeping the extra money, one cannot accept the food without a proper seal. However, one can ask the worker for an itemized bill of what she bought and check to see if it was purchased at a kosher store.

Workers Will Not Jeopardize Their Livelihood

There is a concept in halacha that a non-Jewish worker will not commit an act that can jeopardize his livelihood. This applies to these halachos as well. Therefore, if it is a situation where he can lose his livelihood if he is caught tampering seals, then we do not have to be concerned that he will do so.

Based on the above, the custom it to permit a non-Jew to cook food for someone in his home (aside from any bishul akum concerns). However, one should not rely on this heter without consulting with a Rav.

Krispy Kreme Doughnuts 

Krispy Kreme doughnuts are frequently offered for sale in mini stores. These doughnuts may be made with kosher ingredients, but if there is no certification on the showcase assuring that the doughnuts are in fact Krispy Kreme, then one cannot eat them. There are no seals on these doughnuts, and if the owner runs out he can get different ones and claim that they are Krispy Kreme.

Cholov Yisroel Milk in a Non-Jewish store

When going to a non-Jewish store to buy coffee and the store has cholov yisroel milk there, the Jew should make sure the non-Jew opens the milk in front of him, because the non-Jew may put in cholov stam. One who is not makpid on cholov yisroel obviously does not have this concern.