[Avodah] Chalav Yisrael: Required or recommended

[elazar teitz]

My understanding of the dispute regarding chalav stam seems to be at
odds with the assumptions underlying the discussion of the past few days
on Avodah.

As I have always understood it, there is no doubt on the part of any posek
that chaleiv akum is an absolute issur, not a chumra, and not one that
is subject to being overridden because of circumstance short of pikuach
nefesh. The sole matter in dispute is what constitutes chaleiv akum.

Milk of kosher animals comes in two, and only two, varieties: either it
is chaleiv Yisraeil, in which case it is permitted, or chaleiv akum,
in which case it is prohibited. The only question about chalav stam
(or, as RMF more accurately referred to it, chaleiv hacompanies) is to
which of the two categories it belongs. Those who prohibit it claim it
is chaleiv akum; those who permit it consider it to be chaleiv Yisraeil.
The basis for the disagreement is that while the simple description of
chaleiv akum is "chalav shechalavo aku"m v'ein Yisraeil roaihu," the
g'mara itself modified it, stating that a Jew's witnessing the milking is
not an absolute requirement; it suffices that the circumstances be such
that the aku"m be afraid to introduce non-kosher-species milk because of
the presence of a Jew in the vicinity who might catch him in the act --
a yotzei v'nichnas.

Normally, when Chazal made a g'zeira, it applied whether or not the
underlying reason applies. Thus, e.g., to avoid questions of paternity,
Chazal dictated that a woman whose marriage was terminated may not
remarry for three months. This applies even if the woman in question
is a 95-year-old who has had a hysterectomy, even though there is no
chance that she is pregnant by her first husband or might be impregnated
by the second. Chazal did not prohibit entering into a situation where
problems of paternity might arise. The decree was not to get married
for three months. The* reason* for the decree was the potential problem,
but the decree itself was no marriage for three months.

Were it not for the exception of yotzei v'nichnas, the same would apply
to milk If, for fear of the introduction of chaleiv t'meia, there had
been a blanket edict against drinking milk whose milking a Jew did not
witness, there would be no room for discussion about the status of chalav
stam -- a Jew did not witness its milking, and hence it would be assur.
However, there was an exception built in, and the question then is how
far it goes: is it only the fear of a Jew's imminent arrival, or is it
any situation in which the non-Jew is afraid of being caught, such as
fear of the penalties imposed by the USDA.

It is here where chumra and kula come into play. One may be meikil
and consider fear of the USDA to be the equivalent of fear of a yotzei
v'nichnas, and thus chalav stam is true chaleiv Yisraei, permitted in all
circumstances.  One may hold l'chumra, that what Chazal permitted is the
only exception, and thus chalav stam is true chaleiv akum, and is thus
prohibited in all circumstances.  Another may hold that one should rely on
the opinion of the meikilim only bish'as had'chak, but otherwise one should
not rely on that opinion.

In light of the above, it should be obvious that Rav Breuer held
chaleiv akum to be assur.  But the statement is also irrelevant to our
discussion, since does not cite an opinion on his part as to whether or not
chalav stam is chaleiv akum..

It should be obvious that in countries where there is no equivalent of
the fear of the USDA, that according to all opinions, no matter what the
sh'as had'chak, chalav stam is absolutely chaleiv akum, and hence
absolutely prohibited.

EMT
.