Lifnei Iver, Kosher Meat, and the Nine Days

The nine days period is characterized by numerous prohibitions, including abstention from meat and wine. The Mishna (Taanit 26b) and Gemara (Taanit 30a) record an issur d’rabbanan to eat meat during the Seudah Hamafseket, the last meal before the Tisha B’Av fast. There is no rabbinical prohibition to eat meat before the Seudah Hamafseket. The Rambam (Hilchot Taaniot 5:6) notes that the custom has emerged to abstain from eating meat during the entire week that Tisha B’Av occurs (e.g., if Tisha B’Av falls on Thursday, one would abstain from meat beginning the previous Saturday evening). The Rambam notes that some avoid eating meat beginning from Rosh Chodesh Av. The Mechaber (Orach Chaim 551:9) records three different practices in this regard. Some refrain from meat only during the week that Tisha B’Av is observed, some avoid eating meat during the entire Nine Days, and some avoid meat during the entire three weeks (The Tur says that the Avi haEzri wrote that some afflict themselves by not having meat and wine… the practice in Germany is that the elite avoids meat and wine from the seventeenth of Tammuz, and everyone stops having meat and wine from Rosh Hodesh Av, except for Shabbat in which they eat and drink regularly as any other Shabbat). The Rema there notes the accepted practice among Ashkenazim is to refrain from eating meat during the entire Nine Days. Hakham Ovadia Yosef notes that the practice among both Sepharadim and Ashkenazim in Eretz Yisrael is to abstain from eating meat during the entire Nine Days (although Sephardim typically will eat meat on Rosh Chodesh Av).

The severity of the Minhag: The Mordechai, Taanit #639, says that one who ignores the minhag and eats meat is oiver the issur of “al titosh torat imecha,” do not forsake the law of your mother, which refers to minhagim that are binding on klal yisrael, even if Chazal never forbade them. The Arukh Ha-Shulchan (551:23) adds that one who eats meat during these days violate a Torah prohibition, as this custom has attained the status of a communal vow, writing “she’avotenu kablu alehem zeh.. neder shel klal yisrael,” that our ancestors were mekabel this upon themselves, giving it the force of a neder of klal yisrael, and those who eat meat are “ovrim issur d’oraita mi’taam neder.” The Mechaber says (Orach Chaim 551:11) the following about those who breach this minhag: “Kol mi she’ochel basar bemakom shenohagim bo isur, poretz geder hu veyinshechenu nachash.” Anyone who eats meat in a place where they have the minhag to abstain has a din of “poretz geder,” a fence-breaker, and a snake shall bite him (Kohelet 10:8- u’poretz geder, yishchenu nachash); emphasizing the importance of this minhag.

Given the severity of this minhag, what should the policy be of a hashgacha which certifies a meat restaurant, especially considering the maximalist view that the hechsher applies to aspects beyond the issur v’heter status of the food products being sold? Should a hechsher not enforce any prohibition on  meat products being sold, on the grounds that customers may be goyim, cholim (the Rema paskens that a choleh may eat meat during the nine days, Orach Chaim 551:9- Umatzni’im merosh chodesh va’eilach  hasakin shel shechitah she’ein shochatim ki im letzorech mitzvah kegon lecholeh o shabbat o milah.), or out of concern that there may be those who are going to be oiver the minhag but who otherwise seek kosher meat (and if they don’t have access to kosher restaurants during this period, they may go to a nonkosher meat establishment and come to violate serious issurei d’oraita and d’rabbanan).

Before discussing the shitah of Hakham Ovadia, it should be noted that Rav Chaim Kanievsky held it was assur to open a meat restaurant during the period. A man came to Rav Chaim Kanievsky and said, “I operate a kosher restaurant in a secular neighborhood in Israel. My restaurant is the only kosher restaurant in the area, and when my restaurant is closed, my customers go elsewhere and eat nonkosher food. Should I keep the restaurant open during the Nine Days, even though I serve meat, so that these people will eat kosher food?” Rav Kanievsky replied: Leaving the restaurant open and having a frum person serve meat during the Nine Days is a chillul HaShem. That is one of the most severe issurim, and it is a stronger consideration than serving kosher food. You should not open the restaurant.” (Rav Chaim Kanievsky on the Three Weeks, Artscroll, p. 23). It is also said that the Maharasham notes that to allow people to eat meat is one thing, but to institutionalize the heter by publicly allowing a restaurant to serve meat a under community hechsher is a different thing. What is permissible on an individual basis, given certain circumstances, should not always be taken as a blanket heter around which to formulate a public policy.

Hakham Ovadia held a different opinion (Yechaveh Daat 3:38); he is answering a butcher who asked whether he can sell meats during the Nine Days to customers who will be oiver on the minhag (he was concerned he’d lose their business, and that they would go and buy neveilot and trefot instead). This is a classic question of lifnei iver lo titen michshal, the prohibition on placing a stumbling block before the blind. The severity of the minhag notwithstanding, Hakham Ovadia accepts that this is a minhag in question (he doesn’t attribute to it the din of a neder shel klal yisrael), and he writes that this is a minhag lower than an issur d’rabbanan; he cites the shitah of the Radvaz (5:1579) that the issur d’rabbanan of mesayeia (aiding a sinner) applies only to aiding one who is transgressing an issur d’oraita. According to the Radvaz, there would be no mesayeia since only a minhag is involved (notwithstanding the shita of the Aruch haShulchan). In addition, Hakham Ovadia cites the Ramban’s psak (quoted by the Ran, Dapei haRif, Avodah Zarah 6a) that there is no issur d’rabbanan of mesayeia where there is no issur d’oraita involved, and considering that the butcher would face a hefsed gadol, he paskened the butcher may remain open during the Nine Days. In this case, the butcher feared that his customers may go to a nonkosher store if he does not sell meat during the Nine Days; his customers have other alternatives. The gemara, Avodah Zarah 6b, says that the issur of lifnei iver only applies in cases of “trei avrei d’nahara,” literally, two sides of a river. When a Nazir is on one side of a river and wine is on the other side so that he cannot get to the wine on his own, the one who extends it to him is oiver the issur of iifnei iver. On the other hand, according to the Gemara, if the Nazir and the wine are on the same side of the river (chad avra d’naharai), so that he could get to the wine on his own, then the person who gives it to him is not in violation of lifnei iver. The assumption is that the prohibition will be violated in any case. The prohibition applies only when one facilitates the performance of a sin that would have otherwise have been difficult or impossible to perform. Since there are many other restaurants the customers can go to, therefore, a restaurant owner or butcher who serves meat is not oiver lifnei iver. This is in line with the shita of Tosfot, Avodah Zarah 6b, DH Minayin, which posits that there is only an issur of lifnei iver where there is a case of trei avrei d’nahara. The case is where the sinner is in a place where he cannot get to the object he will do the prohibition with unless this person hands it to him. This is as the Gemara concludes, that they are on two sides of the river (with the sinner being unable to cross to obtain the object).

In the teshuva, Hakham Ovadia is concerned, at least in principle, with the Mishneh LeMelech, Hilkhot Malveh v’Loveh 4:2; there, the Mishneh LeMelech says the Torah level prohibition of Lifnei Iver applies even if it is not a Trei Avri Denahara situation.  (This is like Tosafot, Shabbat 3a, DH Bava D’reisha, which says that there is an issur d’rabbanan to aid a sinner even if it is not a situation of Trei Avri D’nahara:  if someone passes a cup of wine to a Nazir, he only transgresses Lifnei Iver if the Nazir was on the other side of the river and could not have obtained it by himself. Even so, he is transgressing an issur d’rabbanan, as he is obligated to stop the person from sinning.) The Ran asserts that midoraita, lifnei iver is only violated when the aider ‘s assistance is necessary for the commission of the prohibited act, while rabbinic law prohibits this conduct even when the aider’s assistance is not needed. The Mishneh LeMelech adds to this, saying that in order for the action to be mutar midoraita, it has to be able to be done by a goy, or a person otherwise not obligated in this commandment of lifnei iver generally, rather than be able to be done by any person. The Mishneh LeMelech’s approach is based upon his understanding of Tosafot (Chagigah 13a, DH Mosrim) that chad avra d’nahara means when the principal can do it on his own or through the assistance of a non-Jew. This makes sense only within the conceptual framework of Tosafot and the Ran, as it seems irrelevant that others can aid in the prohibited act if they too are obligated not to do so. However, Hakham Ovadia feels that since only a minhag is involved, and since many poskim argue with the Mishneh LeMelech and maintain that even if the only way to violate the sin is through the help of another Jew, no prohibition of lifnei iver exists, it is appropriate to be mekil.

Another factor to be considered is the religiosity of those at stake. Hakham Ovadia was concerned that the customers would eat nevelot and trefot. R’ Akiva Eiger, Yoreh Deah 181:6, sets forth a controversial psak: he states that when an action is assur, even min ha’Torah, for a person to do himself but is only prohibited for another person to do because of lifnei iver, it is better for the second person to do the prohibited action as that reduces the sum total number of sins committed (perhaps to zero). The aider’s action do not violate lifnei iver/mesayeia, as his conduct decreases rather than increases sins. This rule obviously only applies if the sinner can and will do the act anyway so that there is no Torah prohibition of lifnei over and only the derabanan of mesayeia yedai ovrei averah. He says on the Shulchan Aruch that it is mutar for a woman to shave a man with a razor if the man would have otherwise shaved himself with the razor.  This is because if a man shaves himself with a razor he violates two issurim- the prohibition to shave with a razor and the prohibition to be shaved with a razor. However, a woman is not prohibited to shave with a razor, and when a woman shaves a man with a razor, the man violates only the prohibition to be shaved.  If by one’s actions one minimizes the severity of the aveirah that would have been violated in any event, then he might be benefitting the other party. Thus, for people to violate the minhag of not eating meat on the Nine Days is far preferable to them eating nevelot and trefot, as they fit into the category of what the gemara (Chullin 4a) deems “Lo Shvak Heteirah Veachil Issura;” if there are no kosher restaurants available to them, they will eat treif.

Rav Kook supplied a similar rationale. Mo’adei HaRe’iyah, pp. 539-543, speaks of the following account: the Poel haMizrachi in 1922 opened kosher kitchens for workers, so that they shouldn’t eat treif by the Histadrut. They were the only kosher alternative. During the Nine Days, the menahel, Avraham Mavrach, debated whether they should serve meat or close altogether; if they abided by the restrictions of the Nine Days, the workers would revert to eating nonkosher. Because the Poel haMizrachi kitchen saved many from eating treif, Rav Kook paskened that any meat meals served there during the Nine Days have the din of a seudat mitzvah, as they are a celebration of the mitzvah to stop another Jew from eating nonkosher. Since every Jew has an achrayus to stop another Jew from eating treif, the meal would have the din of a seudat mitzvah for those secular Jews who would be eating kosher meat. Even those who wouldn’t otherwise eat treifos would be able to partake of meat, as the halacha states that anyone present at a seudat mitzvah may eat meat during the Nine Days (Rema 551:10).

In conclusion, we see that there is adequate basis for a kosher restaurant to serve meat during the Nine Days, even to those who are not cholim or making a siyum. They are not being oiver lifnei iver or mesayeia, since people could obtain meat elsewhere (chas v’shalom, treif meat), and the situation is therefore not one of trei avrei d’nahara (rejecting those shitos positing that the minhag has a d’oraita status of a communal neder, and rejecting those positing that there would be an issur of lifnei iver even in a situation that trei avrei d’nahara doesn’t exist). Hakham Ovadia writes: “Mutar l’yisrael ba’al mis’adah kashera l’sapek ma’achalei basar…gam acher rosh chodesh Av.” It is permissible for the Jewish kosher restaurant owner to serve meat after Rosh Chodesh Av, during the Nine Days.

V’yehi ratzon Shenizkeh lirot b’nechemat tzion v’Yerushalayim b’karov amen v’amen. May it be HaShem’s will that we see the rebuilt, comforted Tzion and Yerushalayim speedily in our days.