Kosher Questions

Perhaps we can find a source for the Mishna Berura’s ruling. The Gemara (Chulin 17a) quotes an interesting opinion of Rebbe Akiva. He holds that the mitzvah of shechita did not take effect until the Bnei Yisrael entered Eretz Yisrael. During the years they traveled in the desert, they were permitted to slaughter cattle in ways that would render the animal a neveilah today.

Rebbe Yirmiya raised the following question: According to Rebbe Akiva, what is the status of beef from animals that were killed in the desert in a non-shechita fashion and subsequently brought into Israel? In the desert, that meat was permitted. However, in Eretz Yisrael, only animals with a proper shechita were permitted. Did the meat that was once considered kosher become “treif” upon its entry into Israel, or do we say that permitted meat retains its kosher status?

The Gemara leaves this question unresolved with a Teiku.

Rashi is bothered by an obvious question: What difference does it make? Today, all animals must be ritually slaughtered. Why even discuss a question that was only relevant at one specific point in ancient history? Rashi answers that we receive reward for expounding Torah concepts even if they are no longer practically relevant.

The Rosh agrees in principle with Rashi; there is, of course, a reward for learning topics of Torah that will never be put into practice. Yet, he notes that it is not the normal construct of the Gemara to record halachic questions that are entirely irrelevant. True, the Gemara does debate and clarify historical facts, but those discussions are usually relegated to Aggadah. Here, the Gemara raised a purely halachic question and left it unresolved with the tag of Teiku, a term exclusively used for matters of practical halacha.

The Rosh therefore suggests that the question at hand is, in fact, relevant in the following modern scenario: A person vowed not to consume meat during a certain stretch of time. However, when the time came for him to start curtailing his meat consumption, he found his fridge full of meat. Can he go on a one-day meat-eating binge to finish off his beef, or do we say that once the calendar date of the vow arrives, he must quit cold turkey?

Much has been written on the Rosh’s comparison between his scenario and the Gemara’s query, with some Acharonim severely restricting the comparison to very specific circumstances. Perhaps we can argue that refraining from consuming fish on Shabbos during a time of price gouging is a mitzvah d’rabbanan. Since the Gemara’s foundational question was left unresolved, we can rely on the principle of safek d’rabbanan l’kula, in cases of doubt regarding a rabbinic decree, we may be lenient. It would logically follow that the gefilte fish, which was entirely permitted before the edict took effect, retains its permitted status.

Some Acharonim use this exact logic to permit eating Shabbos leftovers during the Nine Days. Ashkenazic Jews have the custom to refrain from eating meat from the beginning of the month of Av until after Tisha B’Av. On Shabbos, however, the consumption of meat is permitted. There are those who argue that one may serve the very same meat dishes partaken of on Shabbos as leftovers on Sunday. Because these dishes were permitted on Shabbos, perhaps they retain their permitted status on Sunday as well. This is strikingly similar to the Gemara’s question: does the meat that was permitted in Chutz La’aretz retain its permitted status even after being brought into Israel? Because the custom to refrain from eating meat during the Nine Days is rabbinic in nature, one could argue that safek d’rabbanan l’kula should apply.

The Aruch HaShulchan, however, rejects this logic. He rules that one may not serve any leftover meat dishes from Shabbos during the rest of the Nine Days, and the prevailing custom is in accordance with his ruling.