Question:
Before Shabbat, I marinated a four pound roast in about eight ounces of wine and then roasted it. The wine I used was from a bottle of eino mevushal wine that I had opened a week ago. On Shabbat, I realized that our non-Jewish nanny had been in the house last week. I assumed that made the opened bottle of wine not kosher, so I did not serve the roast to my company at the Shabbat meal. I kept the roast and I want to know if I need to throw it out. I should add that I only realized the problem after I tasted the meat. I didn’t taste the wine per se, but I could definitely tell that it had been marinated in wine.
Answer:
There are a number of reasons why the roast is permitted, mostly having to do with the status of the wine. This also raises interesting questions in terms of bitul, the nullification of small quantities of non-kosher food that get mixed in with kosher food, and I will explore that issue first and then turn to the status of the wine.
Bitul
Let us first assess the situation assuming that the wine is considered not kosher. If so, the meat would only be permissible if it was 60 times the volume of the wine. This would render the wine batel, nullified, on the assumption that any ingredient that makes up less than one-sixtieth of a mixture cannot be tasted.
While non-kosher wine mixed in water or another liquid is nullified in a 1:6 ratio (SA YD 134:5, Iggrot Moshe YD 1:62), when it is mixed in a stew or absorbed in a solid it is only nullified in a 1:60 ratio like all other non-kosher foods (Shulkhan Arukh YD 134:2, Shakh note 21).
This ratio is based on volume (see Pitchei Teshuvah YD 98:2). A wine bottle contains approximately 25 ounces, so eight ounces of wine is about one-third of a bottle of wine and sixty times that is 20 bottles of wine. There is no question that a four pound roast is not the size of 20 bottles of wine.
Often most of the wine will evaporate during the roasting. Is it possible to use the smaller post-evaporation quantity as the basis of our measurements? The answer is no. The Shulkhan Arukh (YD 99:4) rules that we determine the ratio of non-kosher food to kosher food based on the state of the mixture when it is being assessed by the rabbi. However, Taz (ad. loc., note 4) clarifies that the Shulkhan Arukh’s ruling does not apply in a case where the non-kosher ingredient evaporates at a different rate than the rest of the mixture. In such a case, we must use the original quantities in determining the 1:60 ratio, if they are known. As we know the original quantities in this case, and we know that the wine was more than one-sixtieth of the volume of the roast, we must rule that no bitul occurred.
It could be argued that even if the wine was less than one-sixtieth of the meat, the meat should be forbidden because the wine was used to marinate the meat and add flavor, not just to tenderize it. We might therefore conclude that it was obviously notem ta’am—imparting its flavor into the meat, and thus forbidden, even in very small quantities. This is not the case. If we were to follow this logic we would have to forbid all cases where an ingredient was added for taste purposes and later discovered to be non-kosher. The general rule is that the 1:60 ratio is used in all cases, even if the non-kosher ingredient was added to enhance the taste. One exception to this is that when the non-kosher ingredient is avida li’tama, something with an extremely powerful taste, i.e., salt and other spices, it can render the mixture forbidden even when it is present in trace amounts (see Rema, Shulkhan Arukh YD 98:8). Wine is not in this category and would be batel if it was less than one-sixtieth of the mixture, regardless of why it was added.
The fact that you could not taste the wine directly is indeed a consideration. Ashkenazi psak dictates that one should use the 1:60 ratio even when one reports that the problematic ingredient cannot be tasted. However, Shakh rules that if a Jew had tasted the mixture1, then in a bi’dieved situation we can rely on his report that the non-kosher ingredient cannot be tasted and permit the mixture (see Shakh YD 98, note 2 and 96 note 5; see however Arukh HaShulkhan YD 98 note 5 and Havvot Da’at Beiurim 2 and Chiddushim 4).
In this case, however, we cannot rely on your report that you did not detect a wine taste in the meat for two reasons. First, when you tasted the meat you were not focused on determining what tastes might or might not be present and you may not have paid sufficient attention to some of the more subtle tastes (see Rav Yitzchak Schmelkes, Beit Yitzchak, YD 169 who has a lengthy discussion if such tasting can be relied upon). In addition, many poskim rule that if the presence of the non-kosher ingredient can be sensed in the taste of the food, even if not tasted directly, the mixture would still be forbidden (see Yad Yehudah, katzar, 98:37 and Badei HaShulkhan 98:84 and Beiurim s.v. u’vilvad). This would certainly be true in our case where the quantity of the wine was more than one-sixtieth of the roast.
In summary, if we assume that the wine is not kosher, the meat is forbidden. You would be required to throw out the meat or better yet, donate it to a non-Jewish homeless shelter or soup kitchen2.
Let us now turn to the issue of the wine.
The Status of the Wine
There are many reasons why the wine may still be considered kosher. You are correct that lichatchila we do not leave unsealed bottles of eino mevushal wine unsupervised lest a non-Jew touch the wine (see Rema, YD 129:1). If a non-Jew were to touch the wine, it would define it as stam yaynam, wine that was owned or handled by a non-Jew, and hence not kosher according to Rabbinic law. The Rabbis forbade such wine partly because of a concern of fraternization that could lead to intermarriage, but their more central concern was that such wine may have been used in an idolatrous ritual. Thus, even touch changes the status of the wine, since any handling raises the concern of possible idolatrous use. This is also why mevushal wine is not a problem, since such wine would never have been used in the past for such rituals.
In a case where unsupervised wine was left out, the wine would only become forbidden if the non-Jew who had access to it was not afraid of being caught touching or drinking the wine (the assumption here is not that all non-Jews might act this way, but that some might). However, the wine would remain kosher in cases where the non-Jew might expect the owner to return unannounced (see Shulkhan Arukh, ad. loc.). In addition, when the non-Jew in question is a live-in employee, there would be less concern that she would act in a way that would risk her relationship with her employer (see Shakh no. 4)3. Both of these conditions are present in this case, assuming that she does not have permission to help herself to the wine4.
If she had permission, it is still not clear that the wine would be considered forbidden. Eino mevushal wine is forbidden only if a non-Jew touches it or pours it. In this case, the only concern is that the nanny poured the wine, as there was no way that she could have touched the wine in the bottle. The basis for forbidding wine poured by a non-Jew is that moving something is akin to touching it; this is a principle known as kocho. Such wine is forbidden, although since it was not actually touched, its status is in some ways less severe than that of standard stam yaynam (Shulkhan Arukh YD 125:1).
This status only applies to the wine that was poured. The wine remaining in the bottle, which was not poured, would be forbidden only if we were to consider it to be one unit with the wine that was poured. This is a concept known as nitzok chibbur, that which is poured is considered connected to the remaining liquid. Halakha is clear that this principle applies to true yayn nesekh, wine actually used in an idolatrous ritual, but it is debated whether we would also apply it to stam yaynam, wine that was handled by a non-Jew. In one place, Shulkhan Arukh rules that the wine remaining in the bottle is forbidden (YD 125:1), but in another place he rules that it is permitted (YD 124:14). Rema (YD 125:1) notes the lenient side of the debate but concludes that one should be strict and treat the wine as forbidden except in cases of great financial loss, hefsed merubeh. In my estimation, the case of a four pound roast prepared for the Shabbat meal qualifies as a great loss since it impacts the Shabbat guests as well as the host. Following Rema, I would be lenient in this case and rule that the wine remaining in the bottle is permitted.
Moreover, according to Shakh (YD 125, no. 1 and 2), even were one to consider this to be a case of non-severe loss—hefsed as opposed to hefsed merubeh—the wine would still be permitted. Shakh points to Rema’s ruling that in cases where the wine was owned and produced by a Jew and the only concern is that it was touched by a non-Jew, we should factor in the consideration that non-Jews nowadays are not considered idolaters (YD 124:24). The reason touching alone can forbid the wine is directly correlated to concerns regarding idolatrous libations, and this is not a concern nowadays. This does not mean that the halakha would not apply altogether—the general rule is that laws remain in force even in changing contexts—but it does allow for leniency under special circumstances. Thus, Rema rules that when the touching isn’t standard touching, for example if a non-Jew touched the wine only indirectly with a stick, we can be lenient and permit the wine in a case of hefsed, non-severe financial loss.
In regards to pouring wine, Shakh demonstrates that this certainly falls into the category of indirect touch and is an area where one can be lenient in cases of hefsed. In our cases there is even more reason to be lenient, as the “touching” that occurred was two stages removed from actual touching: (1) the wine was only poured and not touched, and (2) the wine in the bottle was not even poured but only connected to wine that had been poured. There is no question that according to Shakh the wine, and hence the roast, is permitted
Conclusion:
- The meat is permitted for multiple reasons:
- The wine never became forbidden if the nanny did not have permission to help herself to wine in the house.
- If she had such permission, the remaining wine in the bottle is permitted in cases of severe loss since the remaining wine was neither directly touched nor poured.
- Since non-Jews nowadays are not considered idolaters, the remaining wine is permitted even in cases of non-severe loss as the only concern is that it had been touched indirectly by a non-Jew.
- Regarding parameters of bitul:
- If the non-kosher ingredient is less than one-sixtieth of the mixture, the mixture is permitted, even if the ingredient were added for taste purposes.
- The ratio of 1:60 is measured based on the proportions of the mixture at the time when the case is presented to the rabbi. However, if the rates of evaporation of the kosher and non-kosher ingredients were different, we would measure based on the proportions that the mixture started with, if known.
- In bi’dieved circumstances, we can rely on a Jew’s reporting that a mixture did not have the problematic taste and permit the food even if the non-kosher ingredient is more than one-sixtieth of the mixture. It is debated whether a report is considered reliable if the person is only reflecting on the taste after the fact. The mixture is permissible only if the person reports that she can neither taste the non-kosher ingredient nor sense its presence in the mixture.
Footnotes:
1 In most cases it would not be permitted for the Jew to taste the mixture since she could wind up tasting the non-kosher food. There would be cases where this would be permissible, such as when milk gets mixed into a pareve soup and one would want to determine if the soup was still pareve. There also are cases such as the one before us, where there is non-kosher food in the mixture, but the Jew tasted it or ate from it before she became aware of the problem
2 There is an interesting question if this would be permitted if Jews were also patrons of these establishments. As a rule this is not a problem as long as the Jews make up only a small minority of the population.
3 Shakh quotes Darkhei Moshe who rules, based on Ra’avan (Avoda Zara, no. 311, quoted in Mordechai Avoda Zara no. 847), that there is no concern when the non-Jews are members of the household כיון דאימת רבן עלייהו בחזקת כשרות הן שנתפס כגנב, “since the fear of their master is upon them, they have a presumption of proper behavior, for they would not want to be caught acting like a thief (i.e., taking property that they have no right to)”. Some have interpreted this ruling to apply to all cases of a non-Jew present in the house of a Jew (this seems to have been Mordechai’s interpretation and for this reason he rejected this ruling). Alternatively, it is possible to limit it to cases of a non-Jewish slave who truly is under the fear of his or her master. It seems to me that the proper understanding lies between these two extremes, and that this ruling is applicable to a case of a live-in employee relationship such as that of a nanny.
4Some might argue that a nanny would not be concerned that the father or mother would return in the middle of the day or that she would assume that if they did, she would hear them at the door and thus could act with impunity. I do not believe this to be the case. Parents do sometimes return unannounced (especially when one of them is a stay-at-home parent), and the prevalence of “nanny-cams,” creates an analogous situation to that of a worker who is concerned that his employer might return at any time. We also need not be concerned that she will act with a sense of impunity on the assumption that she will be able to hear the parent at the front door. If she is using a smartphone, tablet, or computer, she will not be that aware of what is going on around her, and cannot reasonably assume that she will be able to hear someone coming and react in time. Even when this is not the case, she will not be able to wash the wine glass and put it back in its place before the parent comes in. She will not act with a sense of impunity, and we do not have to be concerned that she will help herself to the wine without permission.