The Sale Permit’s Dependence on the Rabbinate: Legal Fiction to Prevent a Stumbling Block

The rabbi’s opening post

The Sale Permit’s Dependence on the Rabbinate: Legal Fiction to Prevent a Stumbling Block

Posted on 15/9/2007

This Sabbath it became clear to me that Rabbi Salomon, the rabbi of Em HaMoshavot, decided this year not to grant kosher certification to fruit and vegetables produced under the sale permit. It turns out that this year the Chief Rabbinate gave the local rabbinates a free hand on this matter. As I heard it, some greengrocer asked him what had changed this year as compared to previous sabbatical years, when he had received certification from Rabbi Salomon himself, and he was left without an answer. So who said that halakhah is not dynamic?!

This has many major ramifications in various areas of the rabbinate’s activity. Shops and restaurants, and consumers as well (certainly nonreligious ones), who see that they can manage without the Rabbinate’s certification, since they will operate without certification this year, will not turn to it even after the sabbatical year. Likewise, there is here a causing of the public to stumble into prohibition, since they will eat fruit and vegetables without any permit at all (not even under the sale permit). There is here a breach of the Rabbinate’s role to provide at least minimal certification for the public that wants it, as distinct from stricter certification. And there is cumulative harm to farmers who will be unable to market produce grown under the sale permit. There is a problem of fruit and vegetables possessing the sanctity of the sabbatical year circulating freely in the market and not being treated properly. And so on and so forth.

Religious Zionist rabbis in the city are furious, and are considering issuing independent certifications (I assume nothing will come of it, as always).

I will not deal here with the problems regarding the role of the rabbi and the rabbinate. I will leave that to Nishtayekh. Nor will I address the question whether it is our task to be concerned about produce possessing the sanctity of the sabbatical year (whether this is a problem in the produce itself, or merely a duty to prevent people from transgressing). Here I want to discuss the other two aspects.

As stated, to the best of my understanding there are two aspects here that require clarification, even on the assumption that the permit is indeed problematic and that it is not proper, ideally, to rely on it (for purposes of the discussion below, I will assume that indeed it is not proper, ideally, to rely on the permit).

1. Causing the public to stumble into prohibition.

2. A problem for the farmers who make use of the permit.

Whereas the rabbis I heard were angry mainly about aspect 1, I found myself דווקא identifying with Rabbi Salomon on this point. It is דווקא aspect 2 that troubles me much more.

Aspect 1 raises the question whether it is proper to employ a legal stratagem in order to lessen the prohibition that will be violated by those who do not trouble themselves to observe halakhah. My feeling is that it is not, for someone who does not observe halakhah cannot “demand” of me that I eat or conduct myself in a less scrupulous way so as not to cause him to stumble. This falls under the dictum, “Feed it to the wicked man and let him die” (Talmud, Bava Kamma 69a). Of course not literally, since here the point is that I am not obligated to violate a prohibition or act less stringently, and not merely to “feed it to him.” If I believe that it is wrong to permit the sale, then the fact that many who are not meticulous will stumble should not prevent me from acting in the way that I believe in. I once wrote about this question in Mida Tova, and if a discussion develops here we can elaborate on it.

By contrast, aspect 2 raises a different principled question. If there is indeed justification, vis-à-vis the farmers, to carry out a sale, then it cannot be that from the consumers’ standpoint we would not recommend buying produce covered by the permit, since for consumers there is no issue here of danger to life or great need. This is similar to what I once discussed here regarding actual leavened food sold by businesses (which was permitted to them because of major financial loss), and there too I argued that it cannot be that this permit is not backed by a parallel permit for consumers to buy this merchandise, for otherwise what is the point of the permit?

In the past this raised the question whether it is proper to rely on nonmeticulous consumers (people who are not at all troubled by the prohibition against leavened food that remained in a Jew’s possession over Passover, and who will buy it in any case) to solve the problem. Here too one could say that we will permit the farmers to sell the land and work it, and rely on secular people to buy their produce, while we ourselves are careful to consume only other produce (on the assumption that we are a small segment of the market, and that this has little effect).

For this reason it seems to me that it is דווקא the second aspect that is problematic, not the first. I would be glad to hear the esteemed forum’s opinion.

Miki

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Source (forum “Stop Here, Think”): http://www.bhol.co.il/forums/topic.asp?topic_id=2279865&forum_id=1364