The Harm Caused by Eating Citric Acid on Passover Unknowingly

With God's help

A Torah-Halakhic Opinion:

The Harm Caused by Eating Citric Acid on Passover Unknowingly

Rabbi Dr. Michael Abraham

The Institute for Advanced Torah Studies, Bar-Ilan University

Phone: 052-3320543

The Question

The company Prinir marketed products that included citric acid with Passover certification from the Chief Rabbinate. Several days before Passover, it became clear that there was concern that the citric acid had been produced from wheat starch and therefore contained gluten; in other words, concern arose that it involved the prohibition of leaven on Passover. The Chief Rabbinate announced that the product's certification had been removed, but some customers purchased the products while they were still in stores and even used them on Passover.

Following this, a class action was filed against Prinir seeking tort compensation on the ground that consumers had been caused to eat leaven on Passover. The company does argue that it later became clear that there was in fact no gluten in the product at all, but it asked me for a Torah and halakhic opinion regarding the degree of harm involved in eating such a product, assuming—incorrectly, according to the company—that the product did in fact contain citric acid produced from wheat.

As will be explained, this inquiry is not a standard halakhic inquiry, and it requires us to enter a range of Torah, philosophical, and meta-halakhic questions as well.

A distinction between two types of consumers

The Supreme Court judgment (p. 68) distinguishes between two types of consumers to whom separate consideration must be given:

• A person who ate the product without knowing that its certification had been removed.
• A person who did not consume the product because the certification was removed and received no compensation for that.

Our concern here is only with type (1). The question regarding consumers of type (2) is not halakhic but economic-commercial, and as such it is not a matter for a halakhic opinion. Still, I will make one comment here regarding that type.

In sections 1-3 below we shall see that the product was, in fact, kosher by the standards of ordinary certification, and therefore the consumers who refrained from using it were actually misled by the Chief Rabbinate. Their complaint should therefore be directed to it, not to the company.

Moreover, after Passover the product is permitted for use (at most this is a mixture involving doubtful rabbinic leaven), and it does not have the status of leaven that remained in Jewish possession over Passover. Therefore, in principle, they could have used the product after Passover, and no harm would have been caused to them.

Beyond that, consumers who wished to do so could have returned the product to the company and received their money back. If they did not return the product to the company, they cannot seek compensation from it for that product (for the company could have made use of it, at least after Passover). Furthermore, once those consumers did not return the product to the company, even if because they lacked information, the company was at most only an indirect cause ('grama,' in halakhic terminology) of their throwing the product away and not using it. For damage caused only indirectly, Jewish law does not impose compensation.

Of course, all this applies only to consumers of that type who did not try to return the product to the company and get their money back. If there were those who did try and the company did not compensate them, that is a legal-commercial question, not a halakhic one, and it is governed by state law and the courts.

A distinction between subjective and objective harm

As for consumers of type (1), the point of departure is a distinction between two kinds of harm that must be discussed: subjective harm—namely, the distress and injury a person feels when he learns after the fact that he ate a product that was not kosher for Passover, or a product concerning which there was concern for leaven; and objective harm—a spiritual harm that, according to the Torah-religious outlook, is caused to a person by eating such a product.

It should be noted that the term 'objective' here may mislead. It does not mean harm measurable by scientific-objective tools, of course, but rather spiritual harm, which is not measurable by such tools. The use of the term 'objective' here is intended only to distinguish it from subjective harm, which exists solely in the person's consciousness, as defined above.

This distinction is important to our discussion, because we must distinguish here between two kinds of situations:

• A person who consumed the product and never learned that its certification had been removed.
• A person who consumed the product and only afterward learned that its certification had been removed and that he had eaten a non-kosher product.

In case A, we are dealing only with the objective question: whether such a person suffered harm, and how it should be assessed. There is no subjective harm there, since such a person does not know at all that he consumed a problematic product. In case B, by contrast, we are dealing with two kinds of harm: the objective harm described above, and in addition the subjective harm, namely the distress and injury that person feels upon learning that he ate leaven on Passover. With respect to consumers of type (2), this distinction is entirely irrelevant, since they did not consume the product. There is no objective or subjective harm there, but only, as stated, economic-commercial harm.

The inquiry here will proceed in two stages, one after the other: Part A will address the objective harm, and then Part B will consider the subjective harm.

Methodology of the inquiry

Even with respect to the objective question (to be discussed in Part A), this is not a standard question, and therefore it is difficult to treat it as a purely halakhic question. Jewish law deals with questions such as what may and may not be eaten, and it also determines in each case whether there is or is not a prohibition, and if so at what level (Torah-level, rabbinic, custom, and so forth). But here we are dealing with a different question: whether a person who ate such food unintentionally suffered any harm. This is not only a halakhic question, but no less a meta-halakhic, theological, and philosophical one—one that is related to and dependent upon halakhic questions, but not reducible to them.

The subjective question (to be discussed in Part B) obviously depends on this inquiry, but in addition it has a psychological dimension as well (what the person who ate such a product felt, and how deeply he was hurt). This too, of course, is not a purely halakhic question.

An important note: to understand this opinion in broad outline, it is sufficient to read section 9 of Part A (which begins on p. 21), and Part B, which is very short (and even there one can read only the bold and enlarged lines within the text).

• The question of objective harm

The order of inquiry

The question of objective harm is divided into two principal parts: A. To what extent did the consumer commit a prohibition for which he bears responsibility (the question of blame and the punishment due to him)? B. To what extent was spiritual harm caused to him by eating the item?

This question should be examined in the following order:

1. Is there any prohibition in eating citric acid on Passover?
2. If there is such a prohibition, what is its level—Torah-level or rabbinic?
3. Are we dealing with a doubtful prohibition or a definite one?
4. What is the halakhic status of a doubtful prohibition?
5. For purposes of assessing harm, it is also important to clarify the nature of the prohibition of eating citric acid—and of leaven in general—on Passover. Is this an issur gavra (a prohibition on the person) or an issur heftza (a prohibition inhering in the object)?
6. The question of 'timtum halev'—spiritual obtuseness of the heart—that may exist in such eating.
7. Is eating without knowledge, when the product bears a kashrut seal, classified as inadvertence, unintentional involvement, or compulsion, and what is the halakhic significance of each such classification?
8. The question of valuation and of damage that is not externally perceptible.
9. Is there a cause of action for such harm?

We shall now discuss all these questions, one after another. At the end of each section there will be a summary paragraph (in enlarged font) containing the main conclusions relevant to our case.

1-3. Is there a prohibition, and what is its level?

Rabbi Suissa dealt with these questions in his opinion. In order to be brief, I will first summarize the points in his remarks that are relevant to our matter, and afterward I will add an important point that he did not address.

Summary of Rabbi Suissa's position

• We are dealing with glucose separated from wheat starch, and it was mixed into these foods even before Passover in an extremely small proportion (less than 1/60, the proportion that ordinarily prohibits a mixture under Jewish law. This is the concept of 'nullification in sixty').
• With respect to leaven on Passover, a special stringency was stated: even the slightest amount prohibits. That is, a mixture containing leaven is prohibited even if the prohibited component is less than 1/60. However, according to all decisors, this rule is rabbinic; on the Torah level, the leaven is certainly nullified in sixty like all other prohibitions (see Taz, Orach Chayim sec. 447, s.k. 1, who brings the reasons of the medieval authorities). In Mekor Chayim ad loc., s.k. 1, and Mishnah Berurah ad loc., s.k. 2, it was ruled that where there are additional grounds for leniency, one may be lenient in accordance with the She'iltot, which is even more lenient and maintains that leaven on Passover is nullified in sixty like the other prohibitions.
• However, the decisors disagreed as to whether something that was mixed in before Passover in a proportion that nullifies it 'reawakens' on Passover itself and again becomes prohibited even in the slightest amount. The principal sources are cited by Rabbi Suissa in section D, and I will not repeat them here. For practical law, most decisors are lenient on this, though some were stringent; and even according to their approach it is doubtful whether their stringency was also said in a liquid-into-liquid mixture, which is our case (see there).
• He further noted the dispute among the decisors regarding a prohibition that dried out and became 'like dust'—that is, unfit even for a dog to eat—and also took on a new form (its appearance and substance changed). Some hold that its prohibited status is annulled, and it does not reawaken even if it is later mixed into food and, together with that food, again becomes fit for consumption; other decisors disagree.

In summary, this is, at most, a rabbinic prohibition. According to most views it was nullified before Passover and is entirely permitted for consumption. According to very specific views it reawakens, and even there it is not clear whether that applies to liquid-into-liquid mixtures such as the present case. Thus, at most, we have only a slight doubt concerning a rabbinic prohibition. And even on that side of the doubt (for those views that hold there is a rule of reawakening in liquid-into-liquid mixtures), we are still dealing with something whose appearance changed and which dried out like dust, regarding which the decisors themselves disagreed.

If so, this is at most a triple doubt concerning a rabbinic prohibition:

1. Even assuming gluten is prohibited on the Torah level, there is still a first doubt whether there was any gluten in the product at all.
2. Even if there was gluten, it was nullified before Passover, and it is doubtful whether there is any rule of reawakening. Of course, even if there is such a rule, it is only rabbinic, because on the Torah level it is nullified according to all views. According to most approaches there is no rule of reawakening, at least in a liquid-into-liquid mixture. So this doubt is not really evenly balanced; rather, the majority of opinions stand against a minority.
3. Even if there is a rule of reawakening, there is still doubt where the substance became like dust and later again became fit for consumption.

Summary

The rule is that even with a Torah prohibition, when there is a double doubt there is no prohibition; certainly so when there are three doubts. All the more so here, where we are dealing with a rabbinic prohibition, in which case even a single doubt is enough for Jewish law to rule leniently (= there is no prohibition in eating it).

The necessary conclusion from Rabbi Suissa's analysis is that, as a matter of law, no prohibition should be attributed to this product at all.

An additional note: an item that will later become permitted

There is, however, one further point that Rabbi Suissa did not discuss, namely the rule of an item that will later become permitted (davar she-yesh lo matirin). The Talmud (see Beitzah 3b-4a and parallels) rules that if a prohibition is temporary, meaning that after the passage of time it will again become permitted, then during the period in which it is prohibited one does not apply to it various halakhic leniencies, such as the rule that a doubtful rabbinic prohibition is treated leniently or nullification by majority in a mixture. Thus ruled all the decisors as a matter of law as well (see Maimonides, Laws of Festivals ch. 1, hal. 20, and Laws of Forbidden Foods ch. 15, hal. 9-10, and Shulchan Arukh, Yoreh De'ah sec. 102:1, and many others).

This could change the picture emerging from Rabbi Suissa's analysis. We have indeed seen that in the question before us (a citric-acid mixture) there is a double doubt and nullification by majority, but since leaven is an item that later becomes permitted, there is room to say that it is not nullified by majority and that even the slightest amount prohibits, and that one should not be lenient even regarding doubt (though it is a rabbinic prohibition). Accordingly, one who ate such a mixture on Passover violated a prohibition, even though with an ordinary prohibition such a mixture would be permitted.

Clarification: leaven as an item that later becomes permitted

The medieval and later authorities disagreed about the rationale of this rule. Most of them (see Rashi on Beitzah there, and many others) maintain that the reason is: rather than eat it in a prohibited state, eat it later in a permitted state; that is, one should not permit the eating of the prohibited item through such mechanisms when one can simply wait and eat it entirely permissibly after some time. The Ran, however, on Nedarim 52b wrote that the reason is that it is akin to a same-kind mixture that is not nullified (for the prohibition that is destined to become permitted is already considered akin to the permitted substance, and therefore is not nullified in other permitted matter).

It should be noted that, according to the overwhelming majority of decisors, the rule of an item that later becomes permitted is only rabbinic, and on the Torah level even such a prohibition is nullified by majority. Some did write that according to the Ran it is a Torah-level rule, but others suggested that even according to him it is still only rabbinic. It should further be noted that even according to the Ran, one must distinguish between the stringency of this rule with respect to nullification by majority and its stringency with respect to doubtful rabbinic cases. With respect to doubt, the Ran's rationale does not apply (it pertains only to questions of nullification by majority; in the laws of doubt there is no distinction between a same-kind and a different-kind mixture), and therefore in cases of doubt it is clear that even he concedes that the rule is grounded in the reasoning of the other medieval authorities—rather than eat it in a prohibited state, eat it later permissibly. Hence, in doubtful cases, according to all views this is only a rabbinic rule. It should be remembered that in any event we are dealing here with a doubtful rabbinic prohibition (for with a doubtful Torah prohibition one is stringent even when there is no later permission, though a double doubt can have implications even there). In practice, however, all decisors ruled that even with respect to nullification by majority, this is only a rabbinic rule.[1]

We must now add that some decisors distinguished between a same-kind mixture, which is not nullified, and a different-kind mixture, which is nullified even when it is an item that later becomes permitted.[2] Other decisors maintain that even in a different-kind mixture such an item is not nullified.[3] In practice, Shulchan Arukh, Yoreh De'ah sec. 102:1 ruled that a different-kind mixture is indeed nullified in sixty. We should note that in our case we are dealing with a different-kind mixture (the prohibited and permitted components differ in taste and appearance).[4]

Is leaven such an item? Seemingly yes, for after Passover it is permitted.[5] But rabbinically, a decree was enacted not to eat leaven that remained in Jewish possession over Passover (although this decree was not enacted regarding a mixture of leaven, which is permitted after Passover). We saw above that leaven prohibits even in the slightest amount, meaning that it is not nullified by majority. Some medieval authorities explain this on the ground that leaven is an item that later becomes permitted, but not all the medieval authorities agree.[6] Nachmanides explains that when the Sages penalized leaven that remained over Passover, they certainly did not intend thereby to make it easier for it to be nullified, but rather to make it stricter; therefore, despite the rabbinic prohibition, leaven is still treated as an item that later becomes permitted and is not nullified. In a mixture of leaven, however, there is permission after Passover, and thus there is more room for the view that it is a regular case of an item that later becomes permitted.

Moreover, according to the views that leaven is such an item, the decisors wrote that leaven is more stringent than other items that later become permitted. For with other items, as we saw above, the decisors disagreed whether a different-kind mixture is nullified in sixty, but with leaven some wrote that according to all views it is not nullified, and they were stringent because the Torah says 'You shall eat no leavened thing.'[7]

However, some medieval authorities disagree with all this and maintain that leaven on Passover is not an item that later becomes permitted. The Ran explains this by noting that the whole stringency that such an item is not nullified is only rabbinic (as we saw above). It seems that his intention is the following argument: on the Torah level even such an item is nullified, and on the rabbinic level it does not in fact become permitted.[8] Others explain that leaven returns to prohibited status the next year, and anything that returns to prohibition on its own is not included in this rule.[9]

Practical ruling regarding the citric-acid mixture

Returning to our case: we are dealing with a mixture of leaven, and if this is an item that later becomes permitted, then it should be forbidden to eat it on Passover. This, of course, is according to the views that leaven is indeed such an item. And even according to those views, one must still discuss a different-kind mixture of leaven, and as we have seen there is disagreement on that as well. According to the views that leaven is not an item that later becomes permitted, the ordinary rules of nullification apply here, and we return to Rabbi Suissa's earlier discussion, whose conclusion is that there is no prohibition here at all.

Both opinions are brought by the Rema, Yoreh De'ah sec. 102:4 (and some linked this as well to the two views in Orach Chayim sec. 447:9; see Chavot Da'at there, Chiddushim s.k. 13). It should be noted that even among the commentators on Shulchan Arukh, Yoreh De'ah there, there is disagreement about how to decide the matter.

It is clear that, at most, this is a dispute concerning a rabbinic prohibition. First, the entire rule of an item that later becomes permitted is rabbinic. And even according to the views that, following the Ran, treat it as Torah-level, we saw that this was said only regarding nullification, not regarding doubts. Here we have both nullification (because this is a mixture) and doubt—indeed a double doubt: whether there is a rule of reawakening on Passover, and whether a prohibition that dried out and became a new substance returns to its prohibition, in addition to the original doubt whether there is any gluten in the mixture at all. As stated, with respect to doubts, even according to the Ran, this rule is only a rabbinic stringency.

It follows that here we have only a doubtful rabbinic prohibition, and therefore leniency should be followed here as well. Furthermore, some decisors wrote that the stringency of an item that later becomes permitted was said primarily in cases of factual uncertainty, but in a doubt about the law one may be lenient even there.[10] According to this, since here we are dealing with legal uncertainty, there is even more room for leniency.

It should further be added that we are not dealing with one doubt, but with a double doubt. The decisors also disagreed whether even in a double doubt one should still be stringent regarding an item that later becomes permitted. Another group of medieval authorities maintains that a double doubt is permitted even there, even when the underlying prohibition is Torah-level.[11] Opposing them are those who hold that even a double doubt involving a rabbinic prohibition in such a case is forbidden.[12] Others distinguish and maintain that with a Torah prohibition one should be stringent in a double doubt in such a case, whereas with a rabbinic prohibition one may be lenient.[13] In short, there is a dispute whether, in a double doubt concerning a Torah prohibition, one should be stringent in an item that later becomes permitted or not.

Summary

First, let us recall that the company maintains that the product contained no gluten at all. Even according to the plaintiffs, there is here at most only a concern that gluten was present in the product. Even if there was certainly gluten in the product, it appears that such a product involves no prohibition at all. To conclude nonetheless that there is a prohibition, we would have to assume a great many contested premises: that there is a rule of reawakening; that leaven which reached a state unfit even for a dog later becomes prohibited again in a mixture; that leaven is an item that later becomes permitted; and that, as such, it is not nullified in sixty even in a different-kind mixture. All of these are only rabbinic principles of prohibition, so that at most we are dealing with multiple rabbinic doubts.

The conclusion is that there is only the faintest possibility, if any, of arriving at the conclusion that there is a prohibition here. And even on that view, this is at most a doubtful rabbinic prohibition, while in practical halakhah even a single doubtful rabbinic prohibition does not create any prohibition. In truth, we could have stopped the discussion here and said that the product is simply kosher, and therefore even one who ate it suffered no harm—certainly not on the objective plane.

In order to reinforce still further the conclusion that there is no harm here, from this point onward I will adopt, solely for purposes of the discussion, the highly problematic assumption that there is nonetheless a doubtful rabbinic prohibition here, and we will examine even on that assumption how much harm can be seen in eating such a product.

4. The nature of a doubtful prohibition

As stated, here we are dealing at most with a doubtful prohibition. For what follows, we must examine what precisely the status of a doubtful prohibition is. It is not clear whether doubtful prohibitions are a regular prohibition, or whether there is here only a fence and not a substantive prohibition. Below we shall see the implications of this question for our case.

The status of doubtful prohibitions

Jewish law is fully aware that a person bound by it may find himself in situations of doubt, and it must provide guidance as to how he should act in such situations. The agreed rule in Jewish law is that the guidance depends on the character of the prohibition involved. If the doubt concerns a rabbinic prohibition, one may be lenient; but where there is doubt about a Torah prohibition, one must be stringent (see Beitzah 3b and parallels, and the decisors). As to the obligation to be stringent in cases of doubtful Torah prohibition, the medieval authorities disagreed:[14] Maimonides and those aligned with him maintain that the obligation to be stringent is only rabbinic, whereas on the Torah level one may be lenient.[15] Rashba and those aligned with him, by contrast, maintain that the obligation to be stringent is itself Torah-level.

Explaining the essence of doubtful prohibitions

The later authorities discussed the essence of the obligation to be stringent in doubtful cases. This is a broad and deep topic, and here I can bring only the gist of the discussion by one of the great later authorities, Rabbi Shimon Shkop, who discusses it at length in his Sha'arei Yosher, Gate 1, where he surveys and summarizes the various approaches.

Let us begin with an example. A piece of meat lies before me, and I am unsure whether it is pork or kosher meat. In such a case I am obligated to be stringent (because the prohibition against eating pork is on the Torah level). What happens if I am nevertheless lenient and eat the piece of meat? Apparently I violated a prohibition, for Jewish law requires stringency in such a case. I transgressed the rule that doubtful Torah prohibitions are treated stringently (which itself, according to Rashba, is a Torah prohibition, and according to Maimonides, a rabbinic one). But what if it later emerges that the meat I ate was in fact kosher—did I then violate a prohibition? Seemingly yes. True, I did not violate the prohibition of eating pork, but I did violate the obligation to be stringent in cases of doubt. One may say that I violated a prohibition of 'entering a house of doubt'—that is, that the obligation to be stringent in cases of doubt is essentially a prohibition against taking a halakhic risk of committing a transgression.

In Gate 1, chapter 3 (letter 31 in the Bar-Ilan responsa edition), Rabbi Shimon discusses this question and links it to the essence of doubtful prohibitions: the question is whether we are dealing with a prohibition on 'entering a house of doubt,' that is, a prohibition against taking a halakhic risk, or whether there is here only a warning against the substantive prohibition itself. He ties this to the disagreement between Maimonides and Rashba that we mentioned:

According to Rashba's view, every doubtful prohibition contains an additional prohibition: besides the underlying prohibition itself, which depends on the reality of the matter—whether he actually encountered a sin or not—there is an additional prohibition in the very fact that he places himself in a doubtful prohibition. This additional prohibition is definite; that is, even if he did not encounter the underlying prohibition, he still violated the additional prohibition, because he acted against the will of the Merciful One by placing himself in a situation of doubt. But according to Maimonides there is no additional prohibition at all in a doubtful prohibition, for the Merciful One did not warn against this. The choice is left to the person: if he wishes to place himself in doubt, he may do so and remains entitled to do so. But he should know that if he does not in fact encounter the underlying prohibition, he is free of all punishment; whereas if he does encounter the underlying prohibition, he will receive his punishment, whether at the hands of Heaven or of the court, according to the appropriate law. In such a case he cannot claim compulsion or inadvertence because he did not know at the time of the act, for he knew that the doubt was evenly balanced and that both possibilities were open and equally weighted. Therefore, according to the view that a doubtful warning counts as a warning, he is also liable to punishment by the court.

He explains that according to Maimonides there is no prohibition against 'entering a house of doubt'; rather, doubtful prohibitions are only a warning against the prohibition itself. That is, if it turns out that I ate pork, the laws of doubt served as a warning, and now I cannot claim that I was coerced or merely inadvertent. But the prohibition I violated was the prohibition against eating pork. If I did not eat pork, then there was no prohibition at all in what I did. According to Rashba, by contrast, beyond the prohibition of pork itself, the very essence of doubtful prohibition is a prohibition on the very act of 'entering the house of doubt.' Therefore, even if it later turns out that the meat was kosher, according to Rashba one who ate it violated the prohibition of entering a doubtful situation, because he took a risk he was forbidden to take.

Later there he adds and summarizes (there, at the beginning of letter 34):

According to what has been explained, all doubtful cases were not truly permitted by Torah law; rather, the Torah simply did not issue a warning, and the doubt concerning the prohibition remains in place. Anyone who cares for his soul certainly ought, in the way of Torah, to separate himself from a doubtful prohibition.

He argues that according to all views it is clear that the laws of doubt do not render the forbidden food or act itself permitted. If I ate pork, there was certainly an act of forbidden eating here (whether inadvertent, coerced, or intentional). The laws of doubt merely instruct a person how to behave in cases of uncertainty (whether he may or may not take a risk), but it is still proper for anyone to be stringent out of concern that he may in the end encounter the actual prohibition (for even where the laws of doubt allow leniency, or tell a person not to take the risk, the prohibition itself remains where it is). Therefore, according to Maimonides, the Sages were stringent and imposed on us a duty not to take the risk, even though in his view the Torah itself permits it.

And in chapter 4 there (letter 37) he raises a difficulty in light of the conception we have just described:

My mind is still not settled regarding all the laws of doubt, for once we have explained and proved that the prohibition itself has not been removed, how is it possible that the Sages or the Torah would permit a person to commit a doubtful prohibition in an evenly balanced case and leave him to chance to stumble against the will of the Merciful One, and even to incur punishment at the hands of Heaven or through the court?

If the prohibition itself remains in force and the laws of doubt merely warn him away from inadvertence (according to Maimonides), or prohibit or permit him to enter a doubtful situation (according to Rashba), how can that be? Is it conceivable that we would permit a person to enter uncertainty and take a risk of violating a prohibition with open eyes?

And in letter 39 there he explains:

Accordingly, one may say that this is the matter in all the laws of doubt according to Maimonides: the Torah did not warn of any additional prohibition concerning a person's conduct when he has doubt about the underlying prohibition, and in some of these cases the Sages too were lenient and allowed him to act leniently. For at the time when he does not know, no sin rests upon him because of the prohibition; only when it becomes known to him afterward that he transgressed is the sin and punishment renewed upon him, and he becomes liable to bring an offering. Therefore, even in a case of doubtful impurity in the public domain, it can later combine to obligate him in the sliding-scale offering. And even without such combination, if it later becomes known to him that he became impure, one could say that he would be obligated in an offering—unless we were to say that he is considered intentional when the doubt was evenly balanced and clarification was readily available.

He explains that according to Maimonides there is no prohibition on entering a doubtful situation, because as we saw, only if it later becomes clear that he ate something forbidden has he committed an offense. So long as he does not know about the prohibition, no prohibition rests upon him. Torah prohibitions are not an objective essence; they depend, at least in part, on the consciousness of the person who violates them.

What happens with rabbinic prohibitions?

In our case we are dealing with a rabbinic prohibition. As we have seen, with a rabbinic prohibition there is no obligation at all to be stringent. Therefore, if a person ate a doubtful rabbinic prohibition, he committed no prohibition at all—even if it later becomes clear that there was indeed forbidden food or a forbidden act there. The whole discussion above proves that the debate concerns only Torah prohibitions. But with rabbinic prohibitions consumed in a state of doubt, there is no problem at all, even if one consumed them intentionally—which is in any case not our situation.

One might, however, raise an objection from the rule of an item that later becomes permitted, which we discussed above. We saw that according to most medieval authorities, the stringency in a doubtful rabbinic case involving such an item stems from the consideration that it is preferable not to permit a person to be lenient if he can later eat the item in an entirely permitted way. Therefore the usual rule that one is lenient with doubtful rabbinic prohibitions does not apply in that category. At first glance, this seems to indicate that a doubtful rabbinic prohibition has some element of prohibition within it; for if not, why not permit leniency even where later permission exists? In what sense is it better that he eat the product later permissibly, if even now he eats it in complete permissibility?

But this argument can be rejected, because it is entirely possible that the Sages were weighing a subjective educational consideration here. In order to train us not to take prohibitions lightly, they tell us to be careful even in doubtful rabbinic situations where, in truth, leniency is permitted. Thus they instruct us to prefer eating the item later permissibly rather than relying on the leniency of a doubtful rabbinic prohibition. And in fact, as Rabbi Shimon argued above, if there were an element of real prohibition in a doubtful rabbinic prohibition, there would be no place at all for the rule that doubtful rabbinic prohibitions are treated leniently. Below we shall see that rabbinic prohibitions in general are probably person-centered prohibitions.

Summary

In our case we are dealing with a rabbinic prohibition, and we saw that with a rabbinic prohibition there is no obligation at all to be stringent. Therefore, here it is clear that one who is lenient has not violated a prohibition, even if it later becomes clear that he did in fact encounter a prohibited matter. The whole discussion above is not relevant to him.

Moreover, up to this point we have been discussing someone who intentionally violated the obligation to be stringent in a doubtful Torah case, or someone who intentionally ate a doubtful rabbinic prohibition. But if someone does this inadvertently, in unintentional involvement, or under compulsion, the conclusion that he did not violate any prohibition becomes all the more compelling. This will become clearer below.

5. Between issur gavra and issur heftza

When discussing the question of harm caused by eating something prohibited, one must first distinguish between issurei heftza and issurei gavra. The commentators divide halakhic prohibitions into two types: issurei heftza are things prohibited in their very substance; issurei gavra are prohibitions on the person to perform an act or to eat, without implying that there is something intrinsically harmful in the thing itself. We shall consider here whether the prohibition against eating leaven is an issur gavra (a prohibition on the act of eating) or an issur heftza (the leaven itself is considered an object of prohibition, and bodily benefit from it is a forbidden result).

Rabbinic prohibitions and temporary prohibitions

The Talmud in Nedarim 2a distinguishes between vows, which are prohibitions of the object, and oaths, which are prohibitions on the person. It is commonly explained that when a person vows to prohibit to himself a particular object, the prohibition takes effect on the object itself, and that is what is called an issur heftza. The object changes spiritually and becomes prohibited like pork. The prohibition on the person to eat the prohibited object (the issur gavra) is a result of the object's having become prohibited. By contrast, when a person takes an oath, he does not turn anything into a prohibited object. The oath imposes on him a prohibition regarding an act or a certain eating. That is an issur gavra—a prohibition on the person. The later authorities broaden these distinctions to other prohibitions as well and define two categories of prohibition: issurei heftza and issurei gavra.[16]

In Atvan De-Oraita, principle 10, the author discusses whether prohibitions that depend on time are issurei gavra. The reason is that issurei heftza are fixed prohibitions. If the object is inherently prohibited, that ought not change with time. Once a prohibition changes with time, it seems likely that it is an issur gavra—that is, the person is forbidden to eat and must keep away from this object for a certain period, but the object itself is not intrinsically prohibited.

Later in that principle, he discusses rabbinic prohibitions as well, and there he too cites views that the Sages lack the power to change reality itself, and therefore rabbinic prohibitions are also issurei gavra rather than issurei heftza. One well-known source for this reasoning is Netivot HaMishpat sec. 234, who proves from the Talmud that one who unwittingly violates rabbinic prohibitions does not require repentance or atonement. The explanation is that if the person transgressed unwittingly, he did not know that the Sages prohibited the act. But the whole essence of a rabbinic prohibition is rebellion against the command of the Sages. A person who did not know of the command did not rebel against it, and therefore he did not violate a prohibition. With a Torah prohibition, which is an issur heftza, even if the person transgressed unwittingly, he nevertheless performed a prohibited act; only his blame is reduced because he did not know. But with a rabbinic prohibition done unwittingly, this is not reduced blame; rather, there is no prohibited act at all. Therefore repentance and atonement are not required. It should be noted that while quite a number of later authorities wrote as he did, his position is not unanimously accepted.[17]

It should be noted that in our case we are dealing with the prohibition of leaven, which is time-dependent, and we have seen that it is at most a rabbinic prohibition. Thus, the remarks of the later authorities cited above are enough to raise real doubt whether this is an issur heftza or an issur gavra. It should be noted that it is enough to assume just one of the following premises—either that rabbinic prohibitions are issurei gavra, or that time-dependent prohibitions are issurei gavra—to reach the conclusion that this prohibition is person-centered. That itself already constitutes a double doubt.

The laws of doubt

We saw in the previous sections that in our case we are dealing with a doubtful prohibition. We also saw that regarding doubtful prohibitions there are conceptions according to which the entire prohibition is only entering a doubtful situation, and that is precisely the definition of an issur gavra. The person is commanded not to take risks, but the eating itself is not prohibited. If so, we now have yet another consideration: since our case is one of doubtful prohibition, from this angle too there is room to regard it as an issur gavra rather than an issur heftza.

As is known, the Ran at the end of the first chapter of Kiddushin discusses causing another to stumble with orlah outside the Land. What about causing another to stumble with a doubtful prohibition that is unknown to the person being caused to stumble? See Shev Shema'tata I.

The prohibition of leaven as a historical prohibition

Beyond the fact that the prohibition of leaven is temporary, beyond the fact that we are dealing with a rabbinic prohibition, and indeed with a doubtful rabbinic prohibition—all of which are reasons to treat it as an issur gavra rather than an issur heftza—there is another aspect that bears specifically on the prohibition of leaven.

In my article, 'What Does the Sciatic Nerve Have to Do with Leaven on Passover?' [18] I showed that Maimonides, at least, treats the prohibition of leaven and the prohibition of the sciatic nerve—both dietary prohibitions grounded in historical memory—in a highly consistent way as issurei gavra. I explained there that although dietary prohibitions are generally understood as prohibitions inhering in the object, the nature of historically based dietary prohibitions is different. Leaven and the sciatic nerve are not repulsive in themselves, for we were forbidden to eat them only for historical reasons and not because of their inherent nature. Refraining from eating leaven is part of the commemoration of the Exodus from Egypt, and refraining from eating the sciatic nerve is to remember Jacob's struggle with the angel. Therefore, the focus of such prohibitions is the person's act, not the object consumed. The Torah wants us not to eat them, but not because there is something repulsive or degraded in them themselves; rather, because the act of eating them is what is objectionable. I demonstrated there a number of clear halakhic implications of this conception, and I will not repeat all that here.

What emerges for our purposes is that the prohibition of leaven is a historical prohibition, and as such it too is certainly an issur gavra and not an issur heftza. The leaven itself is not objectionable; what is imposed upon us is the caution not to eat it.

Caution regarding even the slightest amount of leaven

In this connection it is important to add one further implication of our conclusion. As is well known, the Jewish people practice extraordinary caution with respect to the prohibition of leaven, even searching for crumbs in order to eliminate and burn them. The Ari writes that whoever is careful even about the slightest amount of leaven on Passover is promised that he will not sin all year. Chida likewise writes, by way of witticism, that on Passover 'leniencies cease.' Therefore Jews have customarily been more stringent regarding leaven than regarding other prohibitions.

The Torah itself already forbids leaven not only in eating, but even in being seen and being found in one's possession—something not found with other prohibitions. It is forbidden not only for consumption but even for benefit, and beyond that there is also an obligation to inspect for it, nullify it, destroy it, and burn it. We saw above (sections 1-3) that leaven on Passover prohibits even in the slightest amount (that is, unlike other Torah prohibitions, it is not nullified by majority or by sixty). What is the meaning of all these exceptional stringencies?

In light of what we explained above, it is clear that this does not reflect a greater defect in leaven itself. Rather, it is a duty imposed on the person to act so as to beware of leaven and what it symbolizes. But there is no question here of caution against damage done to the soul by eating an issur heftza (see the next section), that is, caution against a harmful result. The duty to be careful about even the slightest amount of leaven is a duty on the person to engage in acts of caution and avoidance, not a result-based prohibition (where eating or benefiting from even the slightest amount of leaven actually harms the person). As stated, leaven is in no way defective in itself.

It should also be noted that even those who explain the stringency regarding nullification and doubt in leaven through the rule of an item that later becomes permitted assume that there is no real stringency in it beyond what exists in other prohibitions. Rather, the stringency exists because, rather than eat it in a prohibited state, one can later eat it permissibly (see above, sections 1-3). We should also recall that Chavot Da'at wrote that the criterion of 'same kind' regarding nullification of leaven in sixty depends on the name of the thing and not on its taste, and this too indicates that we are not dealing with an issur heftza but with an issur gavra.

To reinforce the point, let us add that many preachers, commentators, and even decisors explained the prohibition of leaven on the ground that it symbolizes the evil inclination. For example, Radbaz, a major decisor, in his responsa (vol. 3, sec. 977), explains the need for special caution even regarding the slightest amount of leaven on the ground that the midrashim compare it to the evil inclination ('the leaven in the dough'). Once again, we see that the slightest amount of leaven does not cause real damage. The act of being careful about even the smallest amount is undertaken for a purely consciousness-forming purpose.

This is important for our case, since here the consumers did in fact exercise some level of caution regarding leaven, whether better or worse, insofar as they purchased a product bearing a kashrut seal. Even if they erred, no harm befell them, for they fulfilled the duty of caution. The damage supposedly caused by the leaven itself does not exist in an issur gavra (see also the next section). And if they did not fulfill the proper duty of caution because they satisfied themselves with the minimal certification of the Chief Rabbinate (rather than a stricter certification), that was not something the factory (Prinir) caused; it was their own choice, and therefore it is certainly not grounds for a tort claim against the factory.

Summary

We have seen that in our case we are dealing with the prohibition of leaven, which is time-dependent, and at most rabbinic. We have also seen that this is a doubtful prohibition, not a definite one. Accordingly, the remarks of the later authorities cited above are at least enough to raise a strong doubt whether this is an issur heftza or an issur gavra. It should be noted that it suffices to adopt one of the following assumptions—either that rabbinic prohibitions are issurei gavra, or that time-dependent prohibitions are issurei gavra, or that doubtful prohibitions are issurei gavra—to reach the conclusion that this is an issur gavra. That itself is already a triple doubt, leading us to the conclusion that leaven is an issur gavra.

All this is true even if leaven were an ordinary time-dependent prohibition. But finally we saw the special nature of the prohibition of leaven itself: by its very essence it is an issur gavra, even if one does not accept all the previous considerations.

Our conclusion is that leaven is probably an issur gavra, according to the vast majority of views. We also saw that the duty of caution regarding even the slightest amount of leaven is likewise a duty on the person: we are obligated to beware of leaven, but a person who ate it under compulsion suffers no spiritual defect from the eating itself. The question whether the consumers exercised sufficient caution or not is certainly unrelated to what the factory did, and therefore in any event it certainly does not establish a tort claim against it.

6. The question of 'timtum halev'

Maimonides, in Guide of the Perplexed III:25-26 and onward, emphasizes that the Torah's commandments are not arbitrary. If the Torah commands or forbids something, there is presumably some benefit or harm involved. That result can be in the world, in society, or in the individual himself, and of course it may differ from commandment to commandment. Rabbi Elchanan Wasserman, in his Kovetz Ma'amarim, in the essay on repentance, goes one step further with this distinction and shows that in every commandment or transgression there are two aspects: the substantive aspect (the benefit or harm) and the aspect of obedience or rebellion with respect to the command. For example, if a person ate pork, he has violated the Torah's command (this is the aspect of rebellion), and he has also produced some undesirable result (that is the result for whose sake we were commanded not to eat pork—the substantive aspect of the transgression). The same applies to a positive commandment. A person who put on tefillin thereby fulfilled the Torah's command (the aspect of obedience) and also brought about the benefit for whose sake we were commanded to put on tefillin (the substantive aspect), whether in himself, in the world, or in society.

This brings to the surface two aspects that may exist in eating leaven on Passover, as in our case: (1) non-obedience to the command not to eat leaven; (2) the harm caused to the eater, to the world, or to society by that eating. The question of the severity of the transgression is what we have dealt with thus far. The question of the character of the rebellious act in this transgression—whether it is coerced, inadvertent, or intentional—will be discussed in the sections that follow. Here we must examine the question of the substantive consequences of the transgression. We saw that these can be in the world, in the person himself, or in society. But since the subject of the lawsuit with which we are dealing is the harm allegedly caused to the consumers, the question of damage to the world or to society is irrelevant. The subject of this claim is compensation to the plaintiffs for harm caused to them personally. They cannot sue for compensation for spiritual harm caused to metaphysical worlds or to society as a whole. Therefore, here we must discuss only the impact of eating the product (and of the leaven transgression, if there really was one) on the consumers themselves. This spiritual harm is what is called in Torah literature 'timtum halev.'

'Timtum halev': the primary source

The source of the idea is the rabbinic midrash on the verse in Parashat Shemini (Leviticus 11:43):

Do not make yourselves abominable through any swarming creature that swarms, and do not defile yourselves through them, lest you become defiled through them.

The word 'and you become defiled' is written without an aleph, and therefore the Sages expounded it as follows (Yoma 39a):

A teaching was taught in the school of Rabbi Ishmael: Sin dulls a person's heart, as it is said, 'Do not defile yourselves through them, lest you become defiled through them.' Do not read 'and you become defiled' but 'and you become dulled.' The Rabbis taught: 'Do not defile yourselves through them, lest you become defiled through them'—if a person defiles himself a little, they defile him a great deal; from below, they defile him from above; in this world, they defile him in the World to Come.

The commentators explain that timtum halev is a kind of spiritual grime that is caused to the soul as a result of sin. For example, Rashi there explains that a transgression blocks a person from understanding wisdom. Rabbeinu Behaye there explains that timtum halev prevents the Divine spirit from resting upon a person.

It should further be noted that some commentators explain that timtum halev is caused only by forbidden foods (which is the subject of the verse and of the passage generally), and not by all transgressions. For example, Nachmanides on Parashat Mishpatim (Exodus 22:30) writes:

'You shall be holy people to Me'—the meaning of this verse is that until now Scripture mentioned the laws and warned against ugly things. Now, when it comes to begin the prohibition of foods, it opens and says: 'You shall be holy people to Me.' For it is fitting that a person eat whatever sustains life, and the prohibitions in foods are only for purity of soul—that one should eat clean things that do not generate thickness and coarseness in the soul. Therefore it says, 'You shall be holy people to Me,' meaning: I desire that you be holy people, so that you may be worthy of cleaving to Me, for I am holy. Therefore do not defile your souls by eating detestable things. Thus it says (Leviticus 11:43-44): 'Do not make yourselves abominable through any swarming creature that swarms, and do not defile yourselves through them, and become defiled through them. For I am the Lord your God; sanctify yourselves and be holy, for I am holy.' Thus creeping things make the soul abominable, whereas torn carrion does not involve abomination, but there is holiness in guarding oneself from it.

It follows from his words that timtum halev (= 'they produce thickness and coarseness in the soul') is caused only by dietary prohibitions, and especially by eating creeping creatures and vermin, which is the subject of the verse—not by other transgressions. Let us recall that here we are dealing with leaven, which is indeed a prohibition of eating (though not creeping creatures or vermin), and therefore there is room for the claim that this question is relevant to our discussion.

The dispute

At first glance, one might understand that every transgression—or at least every transgression of eating—produces a result of timtum halev in the transgressor. It is important to know that despite this rabbinic statement, that conclusion is not accepted by all commentators. This is not the place to enter into detail on this theological issue, on which the views are many. I will only try to present sources indicating the different conceptions.

Prof. Yohanan Silman published a series of articles in which he brought sources for two conceptions in Jewish thought regarding this issue:[19] nominalism holds that the essence of transgression is violation of the law, while realism holds that the command has a source in reality itself. How would the nominalists explain the Talmudic saying quoted above? They would say that it is a metaphorical description, or that it is merely one position among several already present in the Talmudic discussions. For example, there is a saying of the Sages that establishes (Sifra, Kedoshim, parashah 4, chapter 9):

Rabbi Elazar ben Azariah says: From where do we know that a person should not say, 'I do not want to wear a wool-linen mixture, I do not want to eat pork, I do not want to engage in forbidden sexual relations,' but rather, 'I do want to, but what can I do? My Father in Heaven has decreed this upon me'? Therefore Scripture says, 'And I have separated you from the peoples to be Mine.' Thus one abstains from transgression and accepts upon himself the yoke of Heaven.

It should be noted that the midrash there also deals with dietary prohibitions such as pork (see also Maimonides, Eight Chapters, chapter 6).

There is, of course, no room here for full halakhic adjudication, and therefore at first glance we would remain with both these views. Still, the decisors too made a few comments on this question.

For example, Shulchan Arukh, Yoreh De'ah sec. 81:7 ruled:

A gentile woman's milk is like the milk of an Israelite; nevertheless, if possible an infant should not nurse from a gentile woman, because the milk of a gentile woman dulls the heart (Rabbenu Nissim in the name of Rashba). Likewise a wet nurse—even if she is Jewish—should not eat forbidden foods (Hagahot Asheri). And likewise the infant himself, for all this harms him in his old age.

He advises not to have a Jewish infant nursed by a gentile woman, because she eats forbidden foods and this causes timtum halev. At the end he writes that such prohibited food harms the child in adulthood.

Is there timtum halev in issurei gavra?

Some wrote that timtum halev is a result of eating issurei heftza, but issurei gavra do not generate timtum halev. For example, Netivot HaMishpat sec. 234, mentioned in the previous section as a source for the view that rabbinic prohibitions are issurei gavra, adds that this principle explains the Talmudic rule that if a person sees his teacher violating a rabbinic prohibition, he should remain silent and allow him to do so, and only afterward ask in order to learn. By contrast, where Torah prohibitions are concerned, the student must warn his teacher, so that if he turns out to be correct and the teacher mistaken, he will prevent him from the prohibition. From this it seems natural to infer that there is no problem of timtum halev in rabbinic prohibitions because they are issurei gavra, and therefore Jewish law is not concerned that the teacher who violates the prohibition will suffer spiritual obtuseness.

However, the Shakh there, s.k. 26, wrote on the words at the end of that halakhah:

'And likewise the infant himself,' etc.—that is, although when a minor eats foods forbidden rabbinically his father is not commanded to separate him, as explained in Orach Chayim sec. 343, that is only as a matter of strict law. Nevertheless, one should separate him, because it harms him in old age, for it dulls the heart and causes a bad disposition.

He argues that although there is no obligation to separate minors from prohibition, since they are not yet obligated in commandments, nevertheless a minor's eating of prohibited food creates timtum halev in him—even with a rabbinic prohibition—and this will manifest in adulthood. It seems that he also explains timtum halev differently from the blockage described above by Rashi. He writes that it gives rise to a bad nature (apparently cruelty and the like). It is not clear whether, in his view, rabbinic prohibitions are nevertheless issurei gavra that still generate timtum halev, or whether he holds that rabbinic prohibitions too are issurei heftza.

The Shakh there in s.k. 25 (and likewise the Taz and Pri Chadash there) adds another important point:

'Likewise, the wet nurse—even if she is Jewish,' etc.—that is, although she is forbidden in any case to eat forbidden foods, nevertheless for the sake of the infant as well she should not eat them. The practical difference is that if she is ill in a manner that requires her to be fed forbidden foods, the father should not allow the infant to nurse from her, but should hire him another Jewish wet nurse.

We see here that in his view, even if one eats the forbidden food permissibly (for example, for the sake of saving life), it still causes timtum halev and produces the harm. It is important to clarify, however, that a number of medieval authorities (see Rav Chananel; and also Rashba, Meiri, Nimukei Yosef, Ritva, and others on the sugya in Ketubot 60a, and Ran on Avodah Zarah 26a) explained that there is in fact a prohibition against nursing from such milk, which proves that in their view there is no timtum halev without prohibition.

Thus, at least according to the Shakh, even eating rabbinic prohibitions, and even eating done permissibly, may generate timtum halev, that is, may cause spiritual harm to the transgressor. Yet it still remains unclear whether, in his view, issurei gavra generate such harm. According to Netivot HaMishpat, it appears that they do not. As we saw above, the prohibition here is at most rabbinic, and the consumers violated it unwittingly; and beyond that, the prohibitions of leaven, by their very nature—even when Torah-level and intentional—are nothing more than issurei gavra. Therefore there is strong reason to say that according to all views, those who ate this product did not suffer timtum halev because of it.

I also found that in the work Chinukh La-Na'ar it is brought that the later authorities disagreed whether there is timtum halev in prohibitions that depend on time. Sha'arei De'ah (cited in Darchei Teshuvah, Yoreh De'ah sec. 81, s.k. 91) holds that there is not, and Arugot HaBosem sec. 138 disagrees. As stated, time-dependent prohibitions are regarded by many as issurei gavra.

Timtum halev in a transgression done inadvertently or under compulsion[20]

As stated, the transgression here was not intentional. In the following sections we shall discuss whether it should be classified as inadvertence, compulsion, or unintentional involvement. In any event, it is clear that there is no blame at all on the eater. Where there is no blame on the transgressor, there is certainly room to argue that no timtum halev was caused. True, we saw in the Shakh that even permissible eating of prohibited food (for example, in a life-threatening situation) gives rise to a bad disposition, but we have already noted that some disagree with him. Moreover, there is room to suggest that even the Shakh did not mean to say that timtum is produced merely by the eating of the prohibited item without any blame on the part of the eater. Perhaps his claim is only that if there was some possibility of avoiding the matter, then timtum is created even where the eating is permitted. But in situations where there is no possibility of avoiding it, even the Shakh would concede that timtum halev is not created.

Instead of elaborating, I will bring here a clear example from a major authority for this conception. In the responsa Rav Pe'alim of the author of Ben Ish Hai, at the end of vol. 4 there was printed a section called Sod Yesharim, which deals with matters of Kabbalah and esoteric teaching. There, in sec. 5, he discusses exactly this question and writes sharply and clearly:

By its very nature, the kabbalists are the ones who tend to adopt the view that transgressions cause timtum halev. Ben Ish Hai, besides being a very important decisor, was also one of the great kabbalists, and he too held that view. Nevertheless, he proves there with several arguments that what causes timtum halev is the transgression, not the mere object that is forbidden to eat (= the heftza). He therefore concludes that there is no timtum halev at all in one who committed the transgression under compulsion and without blame. Who would come after such a king and say that there is timtum halev in one who ate a doubtful rabbinic prohibition under compulsion?![21]

These remarks concern clear issurei heftza such as eating creeping creatures and vermin. If so, they apply doubly in the case of prohibitions that are issurei gavra. In our case we are dealing with possible eating of a doubtful rabbinic prohibition of leaven (which is by its essence an issur gavra, as we saw in the previous section), and all of this was done inadvertently. Hence there is almost no doubt that no timtum halev was generated at all; and even if a plaintiff claims otherwise, the burden of proof is certainly on him.

Moreover, even if the plaintiffs were to prove that timtum halev was created here, that would only be in a situation where the eater himself is at fault (for example, if he decided to eat under a non-stringent certification). If so, there is an 'either way' argument here: if the eater is at fault, then perhaps timtum halev was created—but then it is his fault, and he should not sue the company. If he is not at fault and sues the company, then there is no cause of action, because without blame timtum halev is not created at all. Therefore, either way, there is no cause of action here.

We shall discuss the eater's blame and responsibility in the next section.

Where there is someone who causes another to stumble

Even if we go very far and say that there is timtum halev in such a transgression, we are dealing with a case in which the transgressor was caused to stumble by others and himself acted only inadvertently. The Sages state that one who causes his fellow to sin enters in his place for punishment (see Rashi at the beginning of Parashat Mattot). Moreover, Maimonides in the laws of kilayim (and parallels in the laws of the Nazirite and corpse impurity) writes that if Reuven causes Shimon to stumble and Shimon was inadvertent, Reuven receives lashes. From here we see that where there is one who causes another to stumble and the one stumbled is inadvertent, the prohibition is considered to have been violated by the one who caused the stumbling, not by the victim. If so, a case involving such a cause is even lighter than ordinary compulsion. Even if one adopts the view that compulsion still counts as the act of the coerced person but without blame, a transgression committed inadvertently because one was misled is not considered the act of the transgressor at all, but of the one who caused him to stumble (as stated, according to Maimonides that person is even flogged for it). If so, the same is likely true with respect to timtum halev.

Damage that can be repaired: the role of repentance

Later in that same passage in Yoma 39a we find:

The Rabbis taught: 'Sanctify yourselves and be holy'—if a person sanctifies himself a little, they sanctify him a great deal; from below, they sanctify him from above; in this world, they sanctify him in the World to Come. We shall return to you, 'The Appointed One Said to Them.'

We see that just as transgression causes timtum halev, sanctification purifies it. Rashi indeed explains there that impurity and sanctification stand opposite one another:

They defile him a great deal—meaning, they allow him to become greatly defiled; thus the verse says: Do not defile yourselves through them, and if you do defile yourselves, in the end you will become dulled.

'Sanctify yourselves'—a little; 'and be holy'—a great deal; one who comes to purify himself is assisted.

The conclusion is that there is a repair for spiritual harm: one can sanctify oneself and repent.[22] If so, even if eating the product caused timtum halev, repentance erases that timtum. We are thus dealing with damage that can be repaired by the injured party.

In Jewish law it is accepted that if Reuven causes Shimon damage that can be repaired, he is not obligated to pay him. If there are expenses involved in the repair, then Shimon is expected to repair it, and in certain cases (provided this is not merely grama) Reuven must reimburse those expenses.[23] There is no point entering into that here, however, because here there are certainly no expenses involved in the repair. At most, those who ate need to repent (and even that not fully, since there was no transgression in what they did, but only perhaps a purification from timtum halev).

And what of those who do not know that they ate the product, or do not know that it was not kosher (if indeed it was not kosher)? At first glance, they would seem to have damage that was not repaired and cannot be repaired, and perhaps they should therefore receive compensation. But this claim is irrelevant to our discussion, for they will not receive compensation here in any event (this is a precedential class action). Beyond that, as we saw above, a transgression done inadvertently or under compulsion apparently does not cause spiritual harm.

Summary

We have seen that there is a dispute whether transgressions produce timtum halev at all on the metaphysical-spiritual plane, or whether this is only a normative matter. Even if there is metaphysical timtum, there is a side according to which it exists only in issurei heftza and not in issurei gavra. We also saw a side according to which it exists only in prohibitions concerning creeping creatures and not in all dietary prohibitions. We further saw a dispute whether it exists in rabbinic prohibitions. And even if it exists in rabbinic prohibitions, one must still ask whether it exists in temporary prohibitions such as leaven (which, even when prohibited on the Torah level, is an issur gavra). And even if all that were true, where the transgressor is inadvertent or coerced, Ben Ish Hai rules that there is no timtum halev in such a case (see in the next section that in the situation with which we are dealing, the consumers are coerced or fall under the category of unintentional involvement), and we noted that the Shakh may well agree.

We also saw that even if this were not so, where there is one who caused another to stumble there is yet further reason to be lenient. And finally we saw that even if all this is wrong and timtum halev was in fact created, a person can repair it through repentance, and therefore the one who caused him to stumble is at most only an indirect cause exempt from payment, especially since the eater incurred no expenses in repairing it.

Finally, in light of everything above, the eater cannot sue for this damage because of the 'either way' argument: if he bears no blame, then there is no timtum halev. And if he bears blame, then he cannot sue another for the timtum created by his own fault.

And as for those who do not know that harm was caused to them and therefore cannot repair it through repentance, we explained that they are not the plaintiffs here. The compensation will not reach them in any case.

7. Is such eating inadvertent, unintentional involvement, or compulsion, and what is its halakhic significance?

In Jewish law we distinguish between different states of lack of awareness with respect to a prohibition, because they produce different degrees of blame and responsibility. The categories relevant to our case are inadvertence, compulsion, and unintentional involvement. These distinctions matter for our purposes because they may affect the question whether one who ate the product in fact violated any prohibition. A transgression under compulsion is commonly understood not to be a transgression at all. As to unintentional involvement, as we shall see, the views are divided. By contrast, an inadvertent transgression is usually understood as a transgression with diminished blame. These distinctions may therefore determine whether the company really caused those who consumed the product on Passover without knowing the facts to violate the prohibition of leaven or not.

Inadvertence, unintentional involvement, and compulsion

Inadvertence is a state of missing information, whether halakhic or factual. A person who kindled a fire on the Sabbath inadvertently could have done so in two principal ways (see Mishnah Shabbat 67b): (a) a factual mistake—he kindled the fire because he did not know that today was the Sabbath; (b) a legal mistake—he kindled the fire because he did not know that it is forbidden to kindle fire on the Sabbath.

But what if the person did not know at all that he was kindling a fire (it happened without his noticing, in the course of doing something else)? In that case he is commonly defined as engaged in unintentional involvement.

In Iggerot Moshe, Even HaEzer IV:9, this threefold distinction is stated explicitly:

Something similar we find with the labors of the Sabbath: if one did not know that he was performing a labor, there is no prohibition at all, for the Torah forbade only intentional, thoughtful labor. It is not considered that he performed labor, even though the labor was in fact done by his hands. Only where he knew he was performing a labor but thought it was permitted, or forgot that it was Sabbath, is he considered to have committed a prohibition inadvertently.

The halakhic status of inadvertent, unintentional, and coerced transgressions

In the two forms of inadvertence, the person is not regarded as entirely exempt. In some cases he must bring a sin-offering for his inadvertence, and the offering atones for him. Many commentators (see, for example, Nachmanides on Leviticus 1:4, and the quotation from Maimonides' laws of inadvertent sin to be brought immediately) explain that the offering is brought because there is an element of negligence in such inadvertence. He should have been more aware and should have clarified the law and the relevant facts. There are, however, those who explain that inadvertence is basically a kind of compulsion, and that the reason he is obligated to bring an offering is that his stumbling into inadvertence shows that Heaven caused him to fail because previously he committed an intentional transgression and was not punished.[24] That is an eccentric opinion, and its logic is rather dubious. It is not likely that Heaven causes a person to sin. It is more reasonable to suppose that Heaven would punish him directly, not cause him to do an act that God Himself does not want done.

Compulsion, by contrast, is a state in which the person could not avoid committing the transgression. In such a case he bears no blame and is exempt from bringing a sin-offering. For example, when a person is threatened with a gun in order to make him commit a transgression, he is coerced, because he had no alternative. An example sharpening the distinction between inadvertence and compulsion appears in the law of accidental homicide. One who kills his fellow inadvertently must go into exile. Jewish law (see Maimonides, Laws of Murder ch. 6, hal. 1-4) distinguishes for this purpose between inadvertence close to compulsion and inadvertence close to intention; both are exempt from exile—the first because there is too little blame, the second because there is too much blame (and then exile is not enough to atone for it).

This is explicit in Maimonides, Laws of Inadvertent Sins ch. 5, hal. 6:

If a man had relations with his wife not at the time of her expected menstruation and she saw blood during intercourse, both are exempt from a sin-offering, because this is like compulsion, not inadvertence. For an inadvertent person is one who should have checked and inquired carefully, and had he investigated thoroughly he would not have come to err; because he did not trouble himself with inquiry and investigation before acting, he requires atonement. But here, what could he have done? She was in a state of purity, and he had relations not near her expected time; this is nothing but compulsion. Therefore, whether blood is found on her cloth or on his, they are exempt. But if he violated the rule and had relations close to her expected time, thinking he could have relations and withdraw before she saw blood, and she saw blood during intercourse, they are liable to an offering, for this is inadvertence. Therefore, if blood is found on his cloth, both are impure and liable to an offering. If it is found on her cloth, then if she wiped herself immediately when the husband withdrew and did not delay, both are impure and liable to an offering; if she delayed long enough to reach under the pillow or cushion, take a cloth, and examine with it, both are impure by doubt and exempt from an offering; and if she delayed long enough to get down from the bed and wash herself and only afterward wiped herself and blood was found, her husband is pure.

See also Rashba on Shevuot 18a, who inferred this from the Talmud there. The conclusion is that a coerced person is one who had no way to act so as to avoid the transgression (to check), and that is what distinguishes him from the inadvertent actor.

With respect to transgression under compulsion, the transgressor bears no blame at all. Therefore, the common conception is that there is no transgression here at all, for a transgression without blame is meaningless. Can one imagine that Heaven would come with complaints against a person for something he did without any blame? Even those who formally define such an act as a transgression necessarily do so only by severing the concept of transgression from the question of blame. True, one could still discuss the metaphysical consequences of the act (= timtum halev), but regarding that we saw in the previous section that where there is compulsion (that is, absence of blame), timtum halev does not exist.

As for unintentional involvement, this refers to a person who was not aware at all of the act he performed, like one who intended to lift something detached and instead cut something attached (see Sanhedrin 62b and parallels, and Tosafot s.v. 'Nitkaven,' Shabbat 72b). In such a case it is commonly held that there is no transgression at all, because the act was not done with the person's awareness and decision and therefore is not attributed to him. On its face, this is a form of compulsion. It is, however, well known that Rabbi Akiva Eger in his responsa (Psakim, responsum 8) argues that even unintentional involvement counts as a transgression like ordinary inadvertence, except that the Torah exempts such a person from a sin-offering. As a practical matter, most later authorities rejected his view and wrote that it is entirely permitted.[25] In any case, it is clear that even Rabbi Akiva Eger does not see real blame here, and therefore there is certainly no timtum halev even in a transgression of this type.

By contrast, an inadvertent transgression is one that may require a sin-offering. We explained that it contains some element of blame, and therefore in principle one could speak of timtum halev created in the transgressor. However, in the previous section we saw that even there it is unlikely that timtum halev would be created; and as we shall now see, our case is not one of inadvertence in any event, and that whole discussion is therefore irrelevant here.

These distinctions are far from sharp. Moreover, even the halakhic status of each category is not wholly clear or agreed upon. But such clarification is not the point here. What matters for our purposes is only the question how to classify a transgression committed because of an erroneous ruling by an authorized sage or court. In our case, the product was eaten because the Rabbinate ruled that it was kosher for Passover, and after the fact it became clear that the ruling was mistaken. We must therefore examine the status of a person who commits a 'transgression' because of an erroneous halakhic ruling.

It turns out that even such a seemingly basic question is far from clear. The opinions range from one extreme to the other. Above all, it is not clear whether such a case should be defined as compulsion, inadvertence, or unintentional involvement. Before entering that analysis, let us note briefly the law of unintentional involvement.

The law of unintentional involvement in our case

Although by the simple definition there is room to identify consumption of such a product in the absence of knowledge as unintentional involvement, in our case it is not clear that this doctrine can be applied at all. The rule is that one who is unintentionally involved in eating forbidden fats or in prohibited sexual relations is nevertheless liable, because he derived pleasure (see Sanhedrin 62b and parallels), meaning that with prohibitions rooted in eating or prohibited sexual intercourse, even one who was merely unintentionally involved is liable because he derived benefit. Here we are dealing with consumers who ate the product, and thus, at first glance, the doctrine of unintentional involvement should not apply.

However, in our case the prohibited matter is mixed with permitted matter in a proportion of less than one part in sixty, and therefore it has no taste. True, we saw that on Passover one is stringent because of the unique severity of leaven on Passover, which is prohibited even in the slightest amount; but it is clear that in practice there is no enjoyment here from the prohibited element, and therefore it seems that one cannot impose liability here on the ground that he derived benefit.

This may, however, depend on the rationale of the exemption for unintentional involvement. Two major approaches are found on this point: that of Kehillot Yaakov and that of Kovetz Shiurim:

• In Kehillot Yaakov, Shabbat sec. 34, it is written that the Torah forbade only an act that the person knows he is doing. According to that approach, awareness attaches the act to the person, and therefore one who was merely unintentionally involved is exempt because the act is not attached to the doer. The reason that one who is unintentionally involved with forbidden fats or prohibited sexual relations is liable is that the pleasure attaches the act to the person in place of awareness. I later saw that so too wrote Even HaEzel, Laws of Sabbath ch. 1, hal. 8, s.v. 'Ve-hineh,' and Atvan De-Oraita, principle 24. According to this, in our case, as explained, since there is no enjoyment to the eater (because of the tiny amount in the mixture), the act cannot be attached to him.
• In Kovetz Shiurim II, sec. 23, s.k. 6, it is explained that in prohibitions involving pleasure, the prohibition concerns the result and not the act, and therefore the exemption of unintentional involvement does not apply. According to this explanation, one might argue that in prohibitions of eating, even when there is no enjoyment, one who is unintentionally involved should be forbidden on the same ground. But there are several sources suggesting that not all prohibitions of eating and sexual relations are necessarily result-prohibitions (perhaps this is the dispute between Rabbi Yohanan and Reish Lakish whether the prohibition is the benefit of the throat or the benefit of the intestines). In particular, in light of what we saw in the previous section regarding leaven—that it is entirely a prohibition on the person and not on the object—it is difficult to see it as a result-prohibition. Therefore, even according to the approach of Kovetz Shiurim, there is no room here for liability on the ground that he derived benefit.

It should further be noted that with the prohibition of leaven on Passover there is no obligation of a sin-offering, and with transgressions of that kind (such as forbidden sexual acts punishable only by ordinary negative-commandment liability and not by a sin-offering), several decisors wrote that one cannot say at all that unintentional involvement is liable, for there is no punishment and no offering here. See Ra'avad, Laws of Forbidden Relations ch. 1, hal. 12, who questioned Maimonides there for writing that one unintentionally involved in such relations is liable, asking: liable to what? Indeed, the Maggid Mishneh there altered Maimonides' text because of this difficulty and wrote that it was a scribal error. According to them, it is clear that even where unintentional involvement is liable to a sin-offering (as in prohibited sexual relations), the offering is not brought because of blame or transgression. For if that were so, they should have explained Maimonides' words (as Kesef Mishneh does there) and said that even with ordinary negative commandments that do not carry a sin-offering, a person who was unintentionally involved is still a transgressor and liable to punishment at the hands of Heaven for his transgression.[26] From here it is clear that they understood that with unintentional involvement there is no transgression and no punishment at all, but at most only a residual issue of timtum halev. And where there is a sin-offering, even that does not come for an actual transgression. As stated, there is no timtum halev here either, so no residual result remains from eating the product under discussion.

In summary, there is almost no doubt that there is no liability here on the ground that he derived benefit, since the prohibition of leaven is a prohibition of action, and in our case this is a mixture below the threshold of taste, so there is no enjoyment from eating it. If the doctrine that he derived benefit does not apply, then we are left only with the law of unintentional involvement as such. We saw that according to most later authorities, there is no prohibition at all in such a case and it is treated as entirely permitted. And even those who see it as some kind of prohibition (following Rabbi Akiva Eger) appear to understand it only as a need for atonement (cleaning and purification from timtum halev), not blame or criminal transgression—something that in any event does not create timtum halev. Finally, we saw that this cannot be classified as prohibited on the ground that he derived benefit.

Is every lack of knowledge inadvertence?

In our case we are dealing with a transgression committed out of lack of knowledge. At first glance, lack of knowledge is precisely the definition of inadvertence. Yet we must still ask whether every kind of lack of knowledge is necessarily inadvertence, or whether there are cases in which we would treat it as compulsion or as unintentional involvement (which, as stated, is also a form of compulsion). Such a case may arise when the person's lack of information is entirely not his fault or responsibility.

In the Encyclopedia Talmudit, entry 'Ones' (around notes 8-9), the matter is summarized as follows:

Included in compulsion is also compulsion through error, as they said regarding an oath: 'your heart compelled you' (Shevuot 26a), or compulsion through forgetfulness, or through sleep, or through seduction, as they said regarding a minor girl: 'the seduction of a minor girl is compulsion' (Yevamot 33b), for all these arise from lack of knowledge and awareness.

We see that there is a lack of knowledge that counts as compulsion and not as inadvertence, and the proof is from Shevuot 26a, where a person who swore falsely about something by mistake (because he did not know the truth) is regarded as coerced and exempt from a sin-offering.

And indeed we find in Meshekh Chokhmah, Exodus 13:10, who wrote:

And I say likewise here: since the majority of animals are not non-kosher, we need not be concerned for the minority, for we follow the majority. And even if one in a thousand then eats non-kosher meat, this is not attributed to a transgression at all; it is as though he did not eat it. Thus the eating is negated from him and he did not transgress at all… With this I explained Maimonides, Laws of Leaven and Matzah 5:9: because it is said, 'You shall guard the matzot'—that is, you must be careful with the matzah and guard it from every possibility of leavening. Therefore the Sages said that a person must be careful with the grain from which he eats on Passover that no water come upon it after it is harvested… According to what I wrote, this is well understood. For truly there is no need to be concerned with any minority at all. But that is throughout the days of Passover, when the issue is the prohibition not to eat leaven; once the law requires no concern, then if he eats it, it is as though he did not eat leaven at all. Not so on the first night, when there is a commandment to eat matzah. If one grain in ten thousand were leavened, would you say that he ate matzah? Certainly he did not eat matzah—whatever the reason may be. Therefore guarding is required.

We see that if a person relies on the halakhic rule that the majority of animals are not torn and therefore eats an animal slaughtered by an authorized slaughterer, and it later turns out that the animal he ate was in fact non-kosher, that is not a transgression at all; it is as though he did not eat non-kosher meat. It stands to reason that the same applies to someone who relies on an authorized court's ruling and eats on the basis of that ruling. True, one could distinguish and say that when a court erred, that is not really a ruling, because it was given in error. But it still seems that in reality most things given a kashrut seal by an authorized court are indeed permitted, and therefore one who eats based on that seal is at least like one who relied on the majority and committed no prohibition.[27] More than that, we find in the Ran at the end of the first chapter of Kiddushin that he permits causing a person to stumble with definite orlah outside the Land, since the eater is in a state of doubt, and doubtful orlah outside the Land is permitted (see also Shev Shema'tata I). Thus it would seem that one who stumbles and eats by virtue of the rule of majority—which is a valid permission throughout the Torah's prohibitions—has violated no prohibition at all.

On the other hand, in several places it seems that lack of knowledge, and acting on the basis of a court's ruling, are always classified as inadvertence and not as compulsion. A first example is Maimonides' ruling in Laws of Inadvertent Sins ch. 13, hal. 1, based on Horayot, that an individual who acts in accordance with a court ruling is considered inadvertent and not coerced (and therefore must bring a sin-offering). Likewise, Maimonides there, ch. 5, hal. 5-6, regarding an agunah who remarried based on a court ruling, holds that she is obligated to bring a sin-offering—meaning that she is inadvertent and not coerced. Similarly with the 'captured infant': there the dispute is between Rav and Shmuel on one side and Rabbi Yohanan and Reish Lakish on the other (see Shabbat 68a-b), and in practical law one rules like Rav and Shmuel that he owes one sin-offering for each category of transgression. If so, even a captured infant is not regarded as coerced but as inadvertent.

But all this is very difficult. First, we saw that from Shevuot 26a it is proven that lack of knowledge can be compulsion and not inadvertence. It is also difficult conceptually, for, as we saw, compulsion is defined as a state where there is no blame, whereas inadvertence contains some element of blame (because of negligence). When a person relies on an authorized authority, there seems to be no blame at all. What could he have done? Seemingly, where there is no negligence on his part, this should be compulsion and not inadvertence.

One could, however, distinguish and define compulsion as a state in which the person was forced to commit the transgression (and not merely a state where he is blameless). In a case of lack of knowledge, he may indeed be blameless, but in principle he still had a choice, since he could have refrained from eating until he checked for himself. According to this definition, there is room to see such a case as inadvertence and not as compulsion. This is also implied by Rashi in Yevamot 87b, who wrote regarding a woman who remarried on the basis of a court ruling that she is not coerced because she should have waited and not remarried.

But this can be rejected. In Shevuot 26, Rav Assi and Rabbi Ami swore regarding something they did not know, and they were certainly under no obligation to swear—they could have spoken without an oath—yet the Talmud still regarded them as coerced. And even from that very Rashi it is clear, on his own terms, that the case is not compulsion only because the person could have checked or waited. But in our case, the facts would not have become clear even had they waited until Passover; therefore here it is clear that this is complete compulsion. Moreover, even if a person wanted to travel abroad to the sources supplying Prinir's raw materials and check for himself, he would not have been allowed in and would not have been given the information; and even if he had, he lacks the expertise to examine the product's components. In short, here the person had no alternative at all, and waiting would have done him no good.

What remains is only the argument that he could have refrained from eating anything except what he himself checked, and anything he did not check he should not eat. And if he did eat it, then he is no longer considered coerced, because although he is blameless, he nevertheless had the practical option of avoiding the transgression.

This is, of course, a very far-fetched argument, for nowadays it is practically impossible not to eat anything that was not grown at home and checked directly by ourselves. Beyond that, the sugya in Shevuot 26 explicitly indicates otherwise. And from all the decisors whose words will be brought below, it appears that even if they are stringent with respect to an individual who acted in accordance with a court ruling and treat him as inadvertent rather than coerced, this is only because they think there is in truth some level of blame in him. And if anyone were to regard him as a transgressor even without that, then once again it is clear that he would not mean blame and criminality in the ordinary sense, but at most something that requires atonement (cleaning or purification of timtum halev). In the previous section we saw that in our case timtum halev does not apply.

Let us now see something of what the decisors wrote on this issue.

An individual who acted on the basis of a court ruling: a survey of views and sources[28]

The Rema, Even HaEzer sec. 17:58, writes on the basis of a responsum of Rashba (also brought by Beit Yosef at the end of that section):

But if they forced her to marry, or if a court erroneously instructed her and she married on their authority, she is deemed coerced and is permitted to her first husband (Responsa Rashba no. 1189 cited in Beit Yosef).

Thus we see here that an individual who acts on a court's ruling is coerced and not inadvertent. In that responsum Rashba further discusses the matter and writes explicitly that even a mistaken ruling by a court is complete compulsion (his proof is from the mishnah in Yevamot 33b regarding exchanged persons).[29]

So too, in Shemesh Tzedakah, vol. 2, sec. 7, a decisor is cited as holding that one who acted in accordance with a sage's ruling is coerced. And in sec. 9 there he adds that even if it is said regarding her that she must leave both husbands, she may afterward remarry either one of them. True, he then expresses some doubt, because perhaps she is not considered coerced, since she could have asked another, greater authority or waited until the matter became clear. But from their words it appears that where one cannot investigate or wait, one is indeed coerced because of the court's ruling.

It should further be added that several later authorities wrote that in the case of a woman, they prohibited her to her husband in order that she should investigate carefully before remarrying, for the permission to remarry is based on the presumption that a woman investigates carefully before remarrying (as implied by the Gra's commentary to Shulchan Arukh there, s.k. 175, and likewise Chut HaMeshulash sec. 13). From this it follows that in an ordinary case such a situation is complete compulsion, and here they were stringent only in order to create that presumption. Therefore one cannot learn from there to our case, because there the woman can be told that she should investigate or wait until the matter is clarified, or an additional prohibition is imposed on her in order to create that presumption. But in a case like ours, as we already wrote, a person cannot check for himself, and there is no basis for demanding that he refrain from eating until he checks. Therefore it is clear that he is completely coerced.

It should be noted that the Taz there, s.k. 71, and Pitchei Teshuvah s.k. 174-175 remarked on this Rashba and Rema and expressed doubt about the ruling, and they also cited Maharik and Radbaz as disagreeing. Their main objection was from the law of the communal bull offered for an erroneous ruling, where the Torah obligates the public to bring an offering when they acted on a court ruling. They also objected from the law of a woman who remarried on the basis of two witnesses and a court ruling: if her husband returns, she is forbidden both to her first husband and to the second, even though she remarried based on a court ruling. We see from there that she is not regarded as coerced. But even they note that this is only because there is a claim against the woman that she should have investigated or waited (see also Beit Shmuel s.k. 172, who says so). Likewise in Devar Moshe (Amarilio), vol. 1, sec. 4, who explains that where she remarried based on two witnesses and a court, the matter could have become clarified, and therefore it is not compulsion. But, as stated, none of this changes our case in any event, because here the person had no possibility whatsoever of checking, and therefore he is coerced even according to the Taz and those who align with him.

They further wrote that if the ruling does not come from the Great Court, there is a claim against her that she should consult a greater court or wait until the sages deliberate among themselves and permit her (see Pnei Aharon sec. 8 and Birkei Yosef, cited in Pitchei Teshuvah here, s.k. 174, and the Radbaz cited there in Birkei Yosef, and others). But this too does not apply in our case, because here there are no other sages who can deliberate on it, since we are dealing with a factual mistake and not with a legal dispute. Nor is it the normal course of things for one sage to come and prohibit a product that another has certified. At most there may be a Rabbinate certification that other kashrut bodies would not themselves grant. But it is exceedingly rare for others to say that a product is actually leaven because the Chief Rabbinate erred in its ruling. Therefore the claim that the eater should have waited for other sages to discuss the matter does not apply here either.

Indeed, Beit David, vol. 2, sec. 16, Noda B'Yehuda, second edition, sec. 131, and Atzei Arazim s.k. 210 all wrote that Rashba's rule is accepted, and that even Maharik and Radbaz did not truly disagree with him; they ruled accordingly in practice. So too ruled Knesset HaGedolah, glosses to Beit Yosef, note 599. And in Shevut Ya'akov I:61, he ruled like Rashba and wrote that although one can challenge him conceptually, he is clearly right that one who acts on a court ruling is complete compulsion. So too Beit Meir, Even HaEzer, end of sec. 17; Divrei Chayim (Sanz) vol. 2, sec. 27; and Gevul Binyamin sec. 64. All of them reason that a person who had nothing else he could have done is deemed coerced. As we saw above, in our case it seems that according to all views—even those who argue on Rashba—everyone would agree that the consumer had nothing else he could have done, and therefore he is coerced.

With respect to the 'captured infant' as well, it was explained that he is not fully coerced because he should have investigated.[30] Beyond that, in my article[31] I showed that the sin-offering of such a person is for not knowing, not for the act of transgression. The act of transgression itself is complete compulsion and does not generate a sin-offering. The captured infant involves a legal mistake, whereas here we are dealing with a factual mistake, and there it is more plausible that a state in which the absence of knowledge is itself compelled counts as true compulsion (for one is not required to know facts beyond what can reasonably be checked, but only to know the law).

One might, however, object from Maimonides, Laws of Inadvertent Sins ch. 14, hal. 3, where he writes:

If the court ruled that the Sabbath had ended because the sun was covered and they thought the sun had set, and afterward it shone again, this is not a ruling but a mistake, and anyone who performed labor is liable, while the court is exempt. Likewise, if the court permitted a married woman to remarry because witnesses testified before them that her husband had died, and afterward the husband returned, this is not a ruling but a mistake, and the woman and her last husband are liable to a sin-offering for their inadvertence. And similarly in all comparable cases.

We see that even a factual error by a court does not exempt the actors from a sin-offering. A factual error is not a legal ruling, and therefore the court's ruling does not exempt those who acted on it. However, those are cases of factual errors that can be checked by any person, such as the sun's being covered. And regarding the woman too, we already noted that there is an obligation on her to investigate carefully before remarrying. Therefore, this is no proof that factual errors by a court do not render the person who acted on them coerced.

Indeed, the Mishneh LaMelekh there asked why Maimonides needed to say that this was not a ruling but a mistake, when Maimonides himself rules elsewhere that an individual who acts on a court ruling is liable anyway (see also Mishneh LaMelekh and Lechem Mishneh there, ch. 5, hal. 5). The same rationale appears there with respect to a woman who remarried, and the commentators there (see Lechem Mishneh and Mishneh LaMelekh) asked the same question. But according to our approach here, the actor is liable there only because the court made a factual mistake about something accessible to the ordinary person, and he should have checked. Therefore Maimonides needed an independent reason there. That is true of the covering of the sun, and likewise of the woman who remarried, where she was required to investigate carefully, as above. But in our case we are dealing with a factual mistake that the eater could not possibly check, and therefore here he is complete compulsion according to all views.

Is a transgression under compulsion a transgression?

We have already seen that according to most views, a transgression committed in a state of unintentional involvement is not a transgression at all. And even if there is some formal sense in which it is a transgression, there is no blame here. And even if there were some element of blame (if we adopted the unreasonable assumption that the consumer is obligated to check before he eats), the result would only be that the blame lies on him and not on the company, and therefore he could not sue the company on that basis.

What remains, then, is only to show that a transgression under compulsion is not a transgression at all. We already saw this in the words of Rav Pe'alim cited in the previous section, and in the words of Meshekh Chokhmah cited here. To complete the picture, let us add a few more references: Kovetz He'arot sec. 75 (who showed that although there is still a prohibition of 'do not place a stumbling block' in causing a person to sin under compulsion, that is not because the coerced person's act is a transgression, but because the one who caused it is regarded as though he intentionally transgressed); the novellae of Rabbi Meir Simcha on Bava Metzia 61b (who repeats what he wrote in the Meshekh Chokhmah passage cited above); Beit HaOtzar I, principle 27 (who even considers whether such a case may count as though he fulfilled a commandment, similar to what we saw in the previous section from Rav Pe'alim regarding invalid tefillin; see also Responsa Pri HaSadeh III, end of sec. 117, who elaborates on this at length). Indeed, the Amoraim in the Jerusalem Talmud, Kiddushin ch. 3, disagreed whether compulsion counts as if one acted. See also Birkat Shmuel on Ketubot sec. 3 and much more.

The accepted view is that compulsion is not a transgression at all, and it does not even require repentance or atonement. According to some views, even a commandment not properly performed under such circumstances is still regarded as though it was performed. To demonstrate this, let us bring several quotations from major decisors of our time.

First, in Responsa Chelkat Ya'akov, Orach Chayim sec. 16, regarding one who bought tefillin from a scribe presumed kosher:

It is obvious that this case is far more lenient than that one… where he erred in the laying of tefillin; an inadvertent transgression requires atonement, for in cases punishable by karet a sin-offering is required… But in our case, where he bought tefillin from a scribe presumed kosher, his law is like one under compulsion, who needs no atonement… In our matter, he committed the transgression not inadvertently but under compulsion, and needs no atonement.

And so too in Responsa Mishneh Halakhot, vol. 5, sec. 1, which discusses the same subject and writes:

He needs no repentance at all… The reason is that here this is not inadvertence in his failure to put on tefillin, which would make him require atonement like any inadvertent transgression; rather he is coerced, and the Merciful One exempts the coerced… Therefore here as well, there is no greater compulsion than this, since the scribe is presumed kosher and a single witness is trusted regarding prohibitions, etc. Hence he is coerced, and the Merciful One exempts him from punishment, and he does not need repentance or atonement… Thus we conclude and reaffirm that this man, whose intention is for the sake of Heaven, needs no atonement or repentance for the compulsion that befell him.

And finally, Tzitz Eliezer, vol. 13, sec. 6:

In practice, regarding the past, in a case like this where they were in no way negligent and were complete onesim, those who laid them out of lack of factual knowledge and those who made them out of lack of halakhic knowledge are not considered to have committed any transgression, and they are even regarded as though they fulfilled the commandment together with the blessings they recited over it properly.

There are, admittedly, some disagreeing views in Jewish law,[32] but according to all views there is no blame here. And beyond that, in tort litigation the burden of proof lies with the plaintiff.

Is there a difference between minors and adults in this regard?

Some of the consumers of the product were minors below the age of commandments. With respect to minors, it appears that there is no transgression at all. Would there nonetheless be timtum halev in them? Those who tie timtum halev to transgression will say that here too there is no timtum halev. Moreover, as a matter of law it was ruled that if a minor eats forbidden carcasses, the court is not commanded to separate him from them (see Maimonides, Laws of Forbidden Foods ch. 17, hal. 27, and many others). Several decisors already wrote on this basis that it follows that a minor's act is not a transgression at all and does not cause timtum halev (see Kovetz He'arot sec. 75, Kehillot Yaakov, Yevamot sec. 31, Yad HaMelekh, Laws of Forbidden Relations ch. 3, Terumat HaDeshen II:62, and others). True, the Shakh (Yoreh De'ah sec. 81, s.k. 26), cited in the previous section, claims that although there is no obligation to prevent the minor from eating, it still causes timtum halev.

But it should be remembered that here we are dealing with a doubtful rabbinic prohibition that depends on time. Regarding rabbinic prohibitions, the medieval authorities and decisors disagreed whether one may even directly feed a minor prohibited food (see Rashba on Yevamot 114a, and the Rema's ruling in Orach Chayim sec. 343 as against the plain reading of the Mechaber there). Likewise, concerning prohibitions that depend on time, several decisors wrote that there is not even a prohibition against directly giving a minor such prohibited matter (see Magen Avraham sec. 269, s.k. 1, and Tosefet Shabbat, Orach Chayim sec. 343, end of s.k. 3. In Yad Ephraim there he writes that this applies even according to Maimonides; though see Tehillah LeDavid sec. 343, s.k. 4).

As we noted there, it is very doubtful whether the Shakh himself would say this regarding the prohibition of leaven, and certainly regarding prohibitions that depend on time.[33] Therefore, even if someone were to draw the unlikely conclusion that there is timtum halev among the adult consumers, that conclusion is far less plausible regarding minors.

Summary

In our case, a person ate a product bearing a kashrut seal of the Rabbinate, and it later became clear that it contained leaven (according to the assumption adopted here solely for purposes of discussion). We saw that he could not have checked its kashrut at all, even had he wanted to. We also saw that it is impossible to instruct the public not to eat anything unless they themselves have checked it. The role of authorized kashrut institutions is to do that for us. Nor is there any possibility here of waiting for another court to check, because certification for this product is given only by the Rabbinate. Even if the person waits, the matter will not become clear on its own. True, he can insist on eating only things he has checked himself, but we explained that this is an unreasonable demand to make of a person today, and we proved from the sugya in Shevuot that in principle Jewish law does not make such a demand. Therefore such eating can be classified at most as compulsion or unintentional involvement, but not as inadvertence.

It should further be noted that we are dealing here with a rabbinic prohibition (see above, sections 1-3), and therefore even if there is a dispute on this point, one should be lenient. And even according to the views that still see some element of prohibition here because the case counts as inadvertence and would require a sin-offering, with leaven there is no sin-offering liability (even for Torah-level leaven, and certainly where this is only rabbinic), and therefore there is no prohibition here. And even if we nonetheless decide that there is a prohibition, that would exist only in the sense of timtum halev and not as a blameworthy, criminal prohibition. We discuss that below.

For practical law, we saw that if such eating is regarded as unintentional involvement, then we have compulsion and complete permission. Any case of inadvertence involves some degree of blame, and here, as stated, there is none at all. The question of the hypothetical possibility of avoiding the transgression is not relevant, according to most views, to defining the case as compulsion. This is especially so when we are dealing with a factual question that cannot be checked (unlike the example cited by Maimonides concerning sunset, mentioned above). Therefore the conclusion is that, according to most views, the eater in our case is fully coerced. And even if an individual who acts on a court ruling owes a sin-offering and is therefore supposedly inadvertent rather than coerced, we saw that this is only because he could have checked for himself or waited. We saw that this is not our situation.

We cited major decisors, both contemporary and earlier, to the effect that a transgression committed under compulsion in reliance on an authorized authority (such as the Chief Rabbinate) is complete compulsion, with no transgression at all and no need even for repentance or atonement. Even if such an act can formally be classified as a transgression, there is certainly no blame here, and therefore timtum halev was probably not created either (see previous section). Finally, even if there is negligence on the part of the eater (which, as we saw above, is wholly implausible) that creates a transgression or timtum halev, then the blame is his, and he cannot sue the company on that basis.

8. The question of valuation and damage that is not externally perceptible

Even if, for the sake of argument, we adopt the assumption that harm was indeed caused here to the consumers, this would still be metaphysical and not tangible harm. No one claims that the consumers suffered any physical damage from eating the product.

A tort claim for this kind of damage faces two severe problems according to Jewish law: (1) such damage cannot be evaluated or appraised; (2) it constitutes 'damage that is not externally perceptible,' meaning damage with no visible signs in the body of the object or the person harmed. An example is someone who mixed libation wine (forbidden both in drinking and in benefit) into his fellow's kosher wine, thereby preventing the owner from drinking it or selling it. As a matter of Jewish law, although the owner must now pour out his wine, the one who caused this kind of damage is exempt from payment (see Maimonides, Laws of Injury and Damages ch. 7, hal. 1, and Shulchan Arukh, Choshen Mishpat sec. 385:1).

Damage that is not externally perceptible is not considered legally cognizable damage under Jewish law. Meiri on Gittin 40b explains this by saying that one must not mix the law of damages with matters of prohibitions, and therefore damage that arises from prohibitions and is not externally perceptible is not considered damage. In any event, Jewish law leaves it to the Heavenly Court to exact payment or punish the wrongdoers in such situations.

Summary

The conclusion is that even if we reject all the arguments developed up to this point and assume that harm was indeed caused to the consumers, this is a kind of harm for which compensation cannot be claimed.

9. Is there, according to Jewish law, a cause of action for such harm? Damage that is not externally perceptible and the question of valuation

Summary and overall picture

Let us now briefly summarize what we have seen so far, in order to present the opinion regarding objective harm as a whole:

• In the case before us, we are dealing with a triple doubt concerning a rabbinic prohibition. Since according to Jewish law even a single doubtful rabbinic prohibition is not forbidden, the bottom line is that there is no prohibition here at all.
• To the best of my halakhic judgment, the Chief Rabbinate itself should have left the company's kashrut seal in force even after this concern arose. In this I entirely join Rabbi Suissa's opinion in the view he submitted.

I can surmise that perhaps the time pressure before Passover did not allow the Rabbinate to check the matter thoroughly when the new information arrived, and the ensuing alarm is what caused it to remove the certification quickly. As stated, such a product satisfies the ordinary standard of the Chief Rabbinate, as Rabbi Suissa also wrote in his opinion.

One must remember Rabbi Suissa's point that the consumers did not originally seek a higher standard, since they chose to buy a product under ordinary Rabbinate supervision (not a stricter certification) and not a product under some enhanced supervision. Therefore they certainly suffered no impairment relative to the standards they themselves expected.

• Even if one decides, for some reason, that eating this product involves a halakhic prohibition, we saw that this is an issur gavra and not an issur heftza (that is, the object itself is not defective and does not damage).
• We saw that such eating falls into the category of unintentional involvement or compulsion. We saw that according to major decisors, both in our time and earlier, an act done under compulsion is not a transgression at all, does not require atonement or repentance, and probably does not produce timtum halev. This is especially so with leaven, which by its very essence is an issur gavra and also a temporary prohibition, and here, in our case, a rabbinic prohibition as well. With leaven this is probably true according to all views.
• Even on the assumption that there is a transgression here, there is someone who caused the consumers to stumble (the company), and in such a case it is the one who caused the stumbling who is considered the transgressor, not the consumer. Therefore no transgression was caused to the consumers themselves. At most, in the Heavenly Court the company may be called to account, but there is certainly no tort cause of action by the consumers against the company. All the more so since the company itself was inadvertent or coerced in this case.
• We saw that the implication of all this is not only that there is no transgression, but that even according to approaches that see a transgression as something that causes timtum halev, here there is no metaphysical result at all to eating this product (a triple doubt involving a rabbinic prohibition, which even on the Torah level is an issur gavra, and which was eaten under complete compulsion).
• Even if such a case does involve harm to the consumers, the harm can be repaired through repentance, and therefore it is not actionable. Those consumers who do not know that they ate such a product and therefore cannot repent would not receive compensation under the judgment anyway, even if the company were held liable.
• Beyond that, we saw that even if we adopt the unreasonable assumption that there is some element of blame in eating the product, and therefore a transgression and/or timtum halev, there is still, either way, no possibility of suing for damage on that basis:
• In truth there is no harm at all, because the eater is coerced, for all the reasons above.
• And if we nevertheless assume that he is not coerced and therefore committed a transgression and suffered harm, then this is because of his own negligence. One who brings harm upon himself through his own negligence cannot sue others for something he suffered because of his own fault.
• Even if everything I have said thus far were wrong, once this claim rests on one assumption piled atop another, the burden of proof in tort law lies on the plaintiff. He has not met, and cannot meet, that burden in this case. As we saw, there is no way at all to prove that any harm was caused here to the consumer. On the contrary, we saw that it is difficult even to imagine a halakhic-theological construction that would justify even a remote possibility of spiritual harm in this case. Certainly this does not amount to a claim sufficient to discharge a tort burden of proof.
• Moreover, not only has the plaintiff failed to prove his case, but in monetary law (including torts) Jewish law recognizes the rule of 'kim li' (see also Rabbi Suissa's opinion), according to which the defendant may defend himself by relying on any halakhic opinion, even an eccentric one. This applies all the more so here, where, as we saw, the overwhelming majority of halakhic views favor the company, such that to adopt the plaintiff's view we would have to pile one assumption atop another, none of which is accepted and none of which is reasonable. There is no doubt that no harm was proven here, and almost beyond doubt that in fact no harm existed here, and certainly not through the company's fault.
• Even if there were harm, it would be harm that is not externally perceptible and for which there is no way to make an appraisal. Jewish law does not impose payment for such harm.
• Even if one reaches the unlikely conclusion that an adult man or woman who ate the product committed a transgression or incurred timtum halev, that conclusion is even less plausible regarding minors. As we saw, a minor's act is not a transgression; and regarding timtum halev, the view of most of the commentators we cited (against the Shakh; see the end of section 7) is that minors do not incur timtum halev. Therefore the minor consumers (those below the age of commandments: 13 for boys and 12 for girls) must be excluded from this reckoning in any event. We noted that there is reason to think that even the Shakh would agree that in a case like this there is no timtum halev, even among adults (because they could not have avoided the prohibition), and certainly not among minors.
• Conclusion: according to Jewish law, I can state with complete certainty that there is no basis whatsoever for a tort cause of action in such a situation. To the best of my judgment, this is a baseless claim with no Torah-halakhic foundation at all.

The relationship of Jewish law to a civil cause of action: such a claim undermines itself

We have seen that according to Jewish law there is no basis at all for such a tort claim. Let us now assume, for the sake of argument, that under Israeli civil law one can sue on such a ground. Does that change the picture? At first glance, the claim is being litigated in a civil court and not in a halakhic tribunal, and therefore the plaintiff may seek from the court compensation for spiritual and Torah-based harm caused to him even if Jewish law would not allow such a claim. The decision that the court must reach is determined by the secular Israeli legal system, not by the halakhic system.

To the best of my understanding, this is a mistake even on the legal plane, for two reasons:

• One must remember that the harm that is the subject of the claim—that is, the very cause of action—is halakhic-Torah harm. If according to Jewish law there is no harm, then it makes no sense to impose compensation under some other legal system.
• Moreover, if according to Jewish law there is no cause of action in this case, then anyone who nevertheless sues for such damage and receives it in some manner is, in halakhic terms, guilty of theft. But that is plainly paradoxical: the plaintiffs' cause of action is that the defendant company caused them to commit a transgression against their will. For that they demand compensation, and the implicit assumption is that committing transgressions, even under compulsion, is contrary to their conscience and their values. But, as we have seen, this very claim itself constitutes the transgression of theft. How can a person who seeks compensation because a transgression was caused to him seek that compensation in a way that itself constitutes a halakhic transgression? Put differently: if he is not troubled by the fact that he himself is committing transgressions, then that fact itself undercuts his claim from the outset. What is he seeking compensation for, if transgressions are not contrary to his conscience and values? Receiving the compensation awarded by the civil court is itself the transgression of theft from a halakhic standpoint, and this would cause him far greater harm than eating the product, which caused him no harm whatsoever. Let me remind the reader that theft is the very first matter for which one is judged in the Heavenly Court (see Sanhedrin 108a and parallels), and certainly far more than a triple doubt concerning a rabbinic prohibition.

The conclusion is that such a claim is baseless on the halakhic plane, and in my view even its acceptance on the legal plane rests on a self-defeating absurdity.

• The question of subjective harm

As explained above, subjective harm is the distress and injury a person feels when he learns that he ate leaven on Passover under compulsion.

This subjective harm itself consists of two components: (1) distress resulting from awareness of the objective harm; (2) the subjective distress that may arise in a person who learns that he ate leaven without knowing it, even if our conclusion is that in such a state there is no objective harm at all.

In Part A of this opinion we saw that there is no objective harm at all. Hence, distress regarding objective harm is merely a result of lack of information, and what should be done about it is to inform the plaintiffs that their distress is based on error or ignorance and thereby dispel it. It is still possible, however, that a person may feel distress merely from the fact that he unknowingly ate leaven, even if no transgression was involved. Even so, since there is no transgression in such eating, there is no basis for such distress either. And it is certainly difficult to claim such a feeling as the basis of a tort action.

Beyond all this, the consideration raised at the end of the previous part—namely that such a claim itself amounts to theft and therefore undermines itself—applies here as well. According to Jewish law there is no basis at all for claiming damages of this type, even if they do exist. One who claims them is apparently not troubled by being a halakhic wrongdoer, and therefore cannot simultaneously argue that transgressions injure him and are contrary to his conscience and values, or that they cause him distress.

Let us now turn to the assessment of the harm.

How many people are we talking about?

As I explained at the beginning of this opinion, subjective harm exists only for people who bought these specific products of the company, know that they ate them on Passover, heard that the Rabbinate removed the kashrut seal that had been on them, and care that the product be kosher. And even among those, not all experience significant distress if that is not the case.

The main task is to estimate the number of people for whom this subjective harm is relevant.

1. In my assessment, among all the people who bought the product, a very substantial proportion are not especially troubled by the question of whether it is kosher for Passover. Most people buy what is sitting on the store shelf.
2. Among those who are troubled by that question, a substantial number do not remember at all that they ate those products on Passover (most people do not remember, with regard to basic products such as tomato paste, which manufacturer's product they bought).
3. In my experience, almost no one reads the Chief Rabbinate's updates regarding the removal of certification. That is true of virtually everyone I know. Very few people receive those updates by e-mail or see such notices elsewhere, and even those who receive them do not read them. They consist of a list of businesses, most of which are completely unfamiliar to us, and therefore there is no motivation to read them.
4. Of the few who did read the update, all of them read it immediately when it was sent. No one reads a general (that is, non-personal) e-mail or a newspaper notice a day after it was sent.
5. Therefore, even those few heard about the removal of certification immediately upon its publication. If they had already eaten the product, then it was eaten before Passover and there was no problem. If they had not yet eaten it, they still had the option of returning the products to the store before Passover. Someone who did not return them presumably either does not care much about the certification or did not hear about it. Either way, such a person suffered no subjective harm.
6. After Passover, all the kashrut updates that had been sent and published had already been archived or disappeared from people's computers. Almost no one reads e-mail several days after it arrives, certainly not when it is a general rather than a personal e-mail.

The conclusion from all this is that the number of people for whom this subjective harm is relevant is negligible. It would have to be a person for whom kashrut is extremely important—so important that violating a triple doubt concerning a rabbinic prohibition under compulsion would gravely injure his feelings—yet who at the same time allows himself to buy products under ordinary, non-stringent certification. That hypothetical person would also have to remember that he bought tomato paste specifically manufactured by Prinir. He would also have had to hear about the removal of certification, but somehow to have read about it only about a week after it was published (that is, after Passover had already begun). And he would have had to hear about it only after he had already eaten the product, and therefore could no longer return the products he bought to the store. How many such people exist? I doubt there was even one. In my assessment, there are no people who suffered subjective harm. Their number could be counted on the fingers of one hand.

What is the level of the harm?

Among the few people who could claim subjective harm, there may be religious, Haredi, traditional, or secular people. Haredim do not buy products under Rabbinate certification, certainly not for Passover. The same is true of Religious Zionists whose halakhic commitment is like that of the Haredim.

What subjective harm is caused to people when they discover that they ate a product involving, at most, a triple doubt concerning a rabbinic prohibition, and that they ate it under compulsion and without blame? Let us remember that these are people who buy ordinary Rabbinate certification and evidently are not especially strict in matters of kashrut.

From my acquaintance with such people—even the religious and halakhically committed among them, who are themselves a rather small minority—the distress that such a case would cause them is negligible. It should be remembered that the Sages themselves already established that the Holy One does not come with grievances against one who sinned without blame. The Torah was not given to ministering angels, and all of us may stumble, certainly under compulsion.

The only possible argument is that God may complain to them as to why they bought products under ordinary Rabbinate certification, which is what caused them to stumble. But that is a complaint they must direct to themselves. Their decision to buy products under ordinary Rabbinate certification was obviously not caused by the company, and therefore it does not provide a basis for a tort claim against it.

In conclusion, even if there are a few people who could claim subjective harm, in my assessment and from my acquaintance with all sectors of the public, the degree of distress they experienced is negligible.

[1] See Rashi, Beitzah 3b and Bava Metzia 53a; Tosafot s.v. 'Kol ha-Nilkat,' Bava Kamma 69a, and s.v. 'Perutah,' Me'ilah 21b; Rosh on Nedarim 58a, s.v. 'Kol Davar'; Ran, Pesachim 29b, Nedarim 52a and 58a s.v. 'Aval Le-Akhilah'; see also Taz, Yoreh De'ah sec. 102, s.k. 1, and Pri Megadim, Mishbetzot there, who wrote that even according to the Ran's reasoning this is only a rabbinic prohibition. So too in Responsa Chatam Sofer, Yoreh De'ah sec. 207, though in sec. 96 there he was uncertain on this point according to the Ran's reasoning; and likewise Pri Chadash sec. 100, s.k. 3, and sec. 102, s.k. 1, and more.

[2] See Mishnah Challah 3:10 regarding tevel, according to the Ran on Nedarim 52a; Tosafot s.v. 'Tevel,' Avodah Zarah 73b; Maimonides, Forbidden Foods 15:12, and Ra'avad's glosses there; see Responsa Rashba I:500 resolving Maimonides' language; Tosafot s.v. 'U-Levatel,' Beitzah 38a, and s.v. 'Mishum,' Beitzah 39a; Shitah Mekubetzet, Bava Metzia 53a, in the name of Ritva, Rosh, and Tosafot Shantz; Responsa Rosh, principle 2, sec. 1; Meiri, Beitzah 39a and Chullin 97a; and Tur/Shulchan Arukh 102:1.

See also Piskei Tosafot, Nedarim ch. 7, sec. 80, which distinguishes between something that becomes permitted by the passage of time (as in our case), which is not nullified, and something whose permission depends on some human action. However, see Pri Megadim, Sha'ar HaTa'arovet, end of ch. 2, who writes that Tosafot on Beitzah 38a imply that even something that becomes permitted on its own is nullified when mixed with a different kind, and in later printings Piskei Tosafot there was emended.

[3] Rif on Chullin ch. 7 regarding bread baked together with roast meat, and see Responsa Rashba I:500 regarding his view; Sefer HaYashar of Rabbenu Tam, sec. 501 (though see Tur, Yoreh De'ah sec. 102, in the name of Rabbenu Tam to the contrary. Some wrote that he distinguishes between the substance of the prohibition, which is not nullified even in a different-kind mixture, and its taste, which is nullified in a different-kind mixture. See also Tur, Orach Chayim sec. 513, and Bach there); Ra'avan on Sotah ch. 7, s.v. 'Be-Nedarim perek ha-noder min ha-yerek'; Tosafot Rid, Nedarim ch. 7, sec. 6; Responsa Radbaz sec. 617, and see there sec. 487; and see Mordechai, Beitzah ch. 1, sec. 640, in the name of Ravyah, and Bach, Orach Chayim sec. 513.

[4] See Chavot Da'at on Shulchan Arukh, Yoreh De'ah sec. 102, Chiddushim s.k. 2, and Kereti there, s.k. 4, who wrote that here the determining factor is the name, not the taste.

[5] See Maimonides, Forbidden Foods 15:9; Nachmanides in Milchamot on Pesachim ch. 2; Yam Shel Shlomo on Chullin ch. 8, sec. 87; the second view in the Rema on Shulchan Arukh, Yoreh De'ah sec. 102:4; Taz there, s.k. 13; Nekudot HaKesef sec. 92.

[6] Nachmanides there, and the Ran in that opinion. See also Responsa Torat Chesed sec. 20, who brings a number of implications of the difference in reasoning for the rule that leaven on Passover prohibits even in the slightest amount.

[7] See Maimonides and Nachmanides there, and the Ran.

[8] Ran on Pesachim ch. 2.

[9] Mordechai on Pesachim ch. 2, sec. 573, in the name of Rabbenu Chayim Katz, and on Beitzah ch. 1, sec. 640; Or Zarua, part 2, sec. 256, in his interpretation of the piyyut 'Elohei HaRuchot'; the first view in the Rema on Shulchan Arukh sec. 102:4; Magen Avraham sec. 447, s.k. 40.

[10] See Pri Chadash, Orach Chayim sec. 497, s.k. 3; Pri Megadim, introduction to the laws of Festivals, part 2, ch. 1, no. 27; Responsa Sha'agat Aryeh sec. 90. See also Responsa Rabbi Akiva Eger sec. 65 and Yad Avraham to Shulchan Arukh, Yoreh De'ah sec. 110, who proved this from the Rashba and the Ran on Nedarim 47a; and see Derush Ve-Chiddush of Rabbi Akiva Eger at the beginning of tractate Berakhot. See Avnei Milu'im, responsa at the end of that work, sec. 11, who explained Maimonides, Laws of Festivals ch. 4, hal. 18 in this way.

All these, however, speak about the rule of something that later becomes permitted in a doubtful rabbinic prohibition. But from the tenor of their words one may learn that even in a double doubt involving a Torah prohibition one should be lenient in this rule. Beyond the general similarity between a doubtful rabbinic case and a double doubt—since in both the law instructs leniency—some commentators assume that a double doubt is itself only a doubtful rabbinic case, because according to Maimonides and his camp the obligation to be stringent in doubtful cases is itself only rabbinic, and where there is yet another doubt we are dealing with a doubtful rabbinic matter and there is no obligation to be stringent (Pnei Yehoshua, Ketubot 9a on Tosafot s.v. 'Lo Tzerikha'; Gilyonei HaShas there in the name of Responsa Radvakh, house 28, chamber 2, s.v. 'U-Le-Aniyut Da'ati,' and more).

[11] See Tamim De'im sec. 120, responsum of Rabbi Asher son of Rabbi Meshullam; Rashba on Beitzah 3b and in Torat HaBayit, house 4, gate 2, in the view of Rabbenu Tam, and see Pri Chadash, Yoreh De'ah sec. 110, s.k. 43, who writes that Rashba himself also held this way; Maggid Mishneh on Laws of Festivals ch. 1, hal. 20, according to Maimonides, and see Pri Chadash there that this applies even to a Torah prohibition; the Mechaber in Shulchan Arukh, Yoreh De'ah sec. 110:7, and Pri Chadash there and the Gra's commentary s.k. 33; Nekudot HaKesef, Yoreh De'ah sec. 110, according to the Ran on Beitzah ch. 1.

[12] See Mordechai on Avodah Zarah ch. 3, sec. 841, in the name of Rabbenu Simchah, and see Pri Chadash there on his view, which he extends even to a full double doubt without a mixture, and something mixed into a thousand; Orhot Isur Ve-Heter, principle 25, law 24, and principle 26, law 9, and see Shakh, Yoreh De'ah there, s.k. 56; in Responsa Radbaz, vol. 2, sec. 617, his plain language suggests that this applies even in a rabbinic prohibition.

[13] Ran on Beitzah ch. 1; Taz sec. 110, s.k. 11, and Pri Chadash there, s.k. 43, in his view; Magen Avraham sec. 513, s.k. 4, according to the Mechaber in Shulchan Arukh there, sec. 2; the Mechaber in Shulchan Arukh, Orach Chayim sec. 497:4, wrote that on the second Festival day a doubtful case of prepared food is permitted, and see Pri Chadash, Yoreh De'ah there, in his view.

[14] The sources are brought at the beginning of Shev Shema'tata and at the beginning of Sha'arei Yosher. See also R. David Luria on Ketubot 9b and Responsa Pnei Yehoshua sec. 11.

[15] Some did distinguish between a doubt involving one piece and a doubt involving two pieces (see Shev Shema'tata, first section, and much more), but as I showed (see my article 'The Essence of the Asham Offering,' Megadim 15, 2007, and in my book Ruach HaMishpat, Tam Press and Beit El Library, 2012), that distinction is mistaken. Beyond that, in our case we are dealing with one piece, for it is not known whether the product contains gluten or not, and therefore all this is irrelevant.

[16] See Kehillot Yaakov on Nedarim sec. 15, who brings a dispute among the medieval authorities as to the nature of the Torah's prohibitions generally—namely, whether the exceptional case is the prohibition created by an oath (so that the rest of the Torah's prohibitions are prohibitions of the object), or the prohibition created by a vow (so that the rest of the Torah's prohibitions are prohibitions on the person).

[17] Regarding rabbinic prohibitions, the literature is extensive. See, for example, Bava Kamma 27b, Tosafot s.v. 'U-Shmuel'; Mekor Chayim (his independent work), sec. 467 (where he wrote the opposite of what he wrote in Netivot HaMishpat); Responsa Keren LeDavid, Orach Chayim sec. 18; Responsa Be'er Yitzchak, Even HaEzer sec. 3, branches A and C; Ein Yitzchak I, Even HaEzer sec. 16, branch 3, nos. 16-41; Torat Chesed, Orach Chayim sec. 31, s.k. 5; Avnei Nezer, Even HaEzer sec. 51, s.k. 8; Or Sameach on Divorce ch. 1, hal. 17 and Laws of the Passover Offering ch. 4, hal. 2; Meshekh Chokhmah on Parashat Shoftim on 'do not deviate'; Chazon Nachum ch. 7 and Kovetz He'arot sec. 8, s.k. 15; Beit HaOtzar I, principle 22; Sdei Chemed, system Aleph, principle 108; Sha'arei Yosher I ch. 7 and I ch. 19; Chiddushei Rabbi Shimon on Ketubot sec. 1; and many others.

Regarding time-dependent prohibitions there are fewer discussions, but see the sources cited at the beginning of the section in Atvan De-Oraita itself.

[18] Michael Abraham, 'What Does the Sciatic Nerve Have to Do with Leaven on Passover?—The Historical Origin of These Dietary Prohibitions and the Implications for Their Halakhic Definition,' Sinai 143, 2009, p. 79.

[19] Yohanan Silman, 'Halakhic Determinations Between Nominalism and Realism—Studies in the Philosophy of Jewish Law,' Dinei Yisrael 12, 1984-85, pp. 249-266. The same author, 'A Divine Torah That Is Not in Heaven—A Typological Clarification,' Bar-Ilan Annual, vols. 22-23 (the Moses Schwartz volume), Ramat Gan 1988, pp. 261-268. The same author, 'Commandments and Transgressions in Jewish Law—Obedience and Rebellion or Repair and Corruption,' Dinei Yisrael 16, 1991-92, p. 183. The same author, 'The Basic Norm in Jewish Law in Light of the Cases of the Deaf-Mute, the Mentally Incompetent, and the Minor,' Dinei Yisrael 18, 1995-96, p. 23.

For related discussions, see also the following articles: Rabbi Yoel Bin-Nun, 'The Search for Truth versus Halakhic Formalism,' in Derekh Eretz, Religion and State, ed. Amichai Berholz, Beit Morasha and the Ministry of Education, Jerusalem 2002, pp. 195-214. David Henshke, 'On Legal Reality in the Thought of Maimonides,' Sinai 92, 1983, pp. 228-239. Prof. Moshe Silberg, Sinai 42, p. 10 and onward. Also my article on the nature of concepts in Jewish law and generally: 'Between Philosophy and Jewish Law,' submitted to Akdamot. See also Shi Wosner's article, 'Ontological and Naturalistic Thinking in Talmudic Law and in Lithuanian Yeshivot,' and the sources cited there, as well as his doctoral dissertation.

[20] On this see my friend Prof. Nadav Shenarav's book Keren Zavit, in his essay on Parashat Shemini.

[21] There, in the main body of the responsum, Orach Chayim sec. 2, he brings a story about his grandfather, who was the rabbi of Baghdad. One day, an emissary who came to the city informed him that all the tefillin worn by the city's inhabitants for generations were not sufficiently square. Their conclusion was that everyone's tefillin were invalid. He discusses there whether it is possible that all those people had never fulfilled the commandment of tefillin and all fell under the category of one who never put on tefillin. He proved from several sources that this is not so, and that even though tefillin are a positive commandment, and for practical law we rule that compulsion does not count as though one acted, here they are nonetheless regarded as having fulfilled the commandment of tefillin. This is a striking novelty, but certainly all the more so regarding negative commandments, where compulsion counts as though one did not act, one should say so, as he in fact wrote in the responsum cited above.

[22] For practical suggestions on how timtum halev is repaired in the Chabad Hasidic conception, see the article of the Lubavitcher Rebbe, 'Therefore the Early Ones Were Called…,' 1956, available on the Chabad Info website, issue 9, ninth year.

[23] For a simple, clear, and brief survey (though of course only preliminary), see Rabbi Aryeh Lichtenstein's article, 'Damage or Not?', on the Machon Choshen Mishpat website, Parashat Bo, no. 146, 13.1.2016.

[24] See Peninim MiBeit Midrasha, Parashat Vayikra, p. 21, note 8, s.v. 'Ve-HaMe'ayin.'

[25] See, for example, Kovetz Shiurim on Pesachim 215 (and likewise in Kovetz Shiurim II, sec. 23), Aglei Tal, Kotzer, end of sec. 24. So too proved Birkat Avraham on Bava Kamma 26b (s.v. 'Le-Inyan') from Atvan De-Oraita 24 and from Mekor Chayim, introduction to sec. 431 (which was cited in Rabbi Akiva Eger's own responsum by the one who disagreed with him). The matter is also discussed in Kovetz Bi'urim, notes to Bava Kamma, p. 64 in its pagination, and Chelkat Yoav I, Orach Chayim 7. See also Kehillot Yaakov on Shabbat sec. 34 and much more.

[26] See Avi Ezri, first volume there; Or Sameach on Divorce ch. 1, hal. 17; and Shiurim Le-Zekher Abba Mari z"l, vol. 1, p. 9, note.

[27] See Peninim MiBeit Midrasha there, note 8.

[28] See all the sources in Otzar HaPoskim, Even HaEzer sec. 17:58, and also a detailed discussion with many sources and positions in the book Peninim MiBeit Midrasha, Vayikra, p. 21 and onward (by Rabbi Chaim Leib ben Dov Eisenstein).

[29] However, see Iggerot Moshe, Kodashim Ve-Taharot I:22, who holds that even the one who exempts an individual acting on a court ruling does not do so because of compulsion. Still, he ties the matter to the fact that such a person should have investigated.

[30] See Peninim MiBeit Midrasha there.

[31] On causing a secular Jew to transgress, Tzohar 25, Spring 2006, p. 9.

[32] See an interesting survey in Rabbi Chaim Rapoport's article, 'One Who Did Not Check His Tefillin in the Month of Elul and They Were Found Invalid,' on the He'arot U-Vi'urim – Ohalei Torah website, 7 Adar 5764, in the section titled 'The First Approach,' where the positions of the authors of Devar Yehoshua and Machazeh Avraham are brought.

[33] It should be noted that the Shakh himself distinguishes between prohibitions that depend on time and those that do not, regarding the rule that if one acted, the act is ineffective. See his remarks in Choshen Mishpat sec. 208, which are also brought in Beit HaLevi I:15.