Siman 453, Se'if 1 · Review: the source of the kitniyos prohibition

Shulchan Aruch, Siman 453, se'if 1

"And there are those who forbid; the custom in Ashkenaz is to be stringent, and one should not deviate from it. However, it is obvious that we do not forbid after the fact if they fell into a cooked dish, and likewise it is permitted to kindle with oils made from them."

(Rema)

Review: the source of the kitniyos prohibition

• The Sephardic practice: kitniyos (legumes) may be eaten on Pesach.
• The Ashkenazic practice: they are stringent and forbid them, and the Rema underscores this with the words "one should not deviate."
• Kitniyos are not chametz: only the five species of grain can become chametz. Other species, even if you grind them into flour and put them in water, will not ferment at all. Strictly by the letter of the law, then, kitniyos would be permitted, and the entire Ashkenazic prohibition rests on concerns alone.

The two main reasons given in the Mishnah Berurah

1. The concern of grain kernels mixed in: when the legumes are gathered, a kernel of wheat can get lodged among them. The mixture itself is not yet a prohibition, but when the legumes are cooked in water that kernel becomes chametz, and chametz on Pesach is forbidden even in the tiniest amount.
2. Resemblance to a grain dish: a porridge or cooked dish of legumes looks just like a dish made from wheat. So too, if the legumes are ground into flour and baked into a cake, onlookers will assume it is a cake of grain flour and that baking such a cake on Pesach is permitted.

When the custom began

• The earliest testimony: as far as the written record goes, the custom began in Ashkenaz around the year 1300. Rabbi Elazar of Worms, the author of the Rokeach, mentions in passing that people forbid "in Polin" (it is not certain that he means the land of Poland), and after him it is cited in further works.
• It may be older: it is quite possible that the custom was already in place earlier, and it is only that the first written testimony we have dates from that period.
• Opposition from the sages of Spain, Provence and France: they called it a foolish custom with no basis, one that should not be followed at all.
• How it actually spread: the Ashkenazim prevailed, and the custom was adopted even by some Sephardim. Those who never accepted it at all are mainly the Jews of Yemen and the communities of North Africa.

After the fact: kitniyos that fell into a cooked dish

"They fell into a cooked dish: this means that there is at least a majority of permitted food. If not, it is not called a mixture at all, and he is simply eating a dish of kitniyos themselves."

(Mishnah Berurah, s.k. 8)

• Nullification in a majority: if a legume fell into a cooked dish and the majority of the dish is permitted food, the dish is permitted. If a large quantity of legumes fell in and there is no majority of permitted food, this is no mixture at all, since he is eating an actual dish of kitniyos.
• One may not nullify a prohibition at the outset: the leniency applies only after the fact. It is forbidden to arrange a nullification in advance, for example to take a little rice and mix it into a large amount of potato flour in order to eat rice "permissibly."

Kindling with oil made from kitniyos

"And likewise it is permitted to kindle: that is to say, even if they were first soaked in water, and in a case like that the five species of grain would become chametz, nevertheless it is permitted, for the custom of prohibition applies only to eating and not to deriving benefit."

(Mishnah Berurah, s.k. 10)

• Even after soaking in water: even though the legumes were taken and first moistened in water, and with the five species of grain that would have produced chametz, with kitniyos it is permitted.
• The scope of the custom: the custom was accepted regarding eating only, not regarding benefit. We therefore do not treat kitniyos like chametz, which is forbidden both to eat and to derive benefit from.

Defining kitniyos and the products derived from them

• A definition that is not clear: to this day the definition of kitniyos is not clear. We do not follow botany here, where the definitions are precise, and there are species that botanically are not legumes at all yet are treated as forbidden.
• The question of where it grows: we need to clarify whether the definition covers only crops that grow above the ground, or also crops that grow underground, such as peanuts.
• A separate question: products derived from kitniyos: even when we know that a given species is kitniyos, we still have to ask whether only the legume itself was forbidden or also the product derived from it, such as oil.

Sesame oil: Rav Kook's ruling of permission

• The case: a factory opened in Jaffa producing sesame oil for Pesach, because of the shortage of oils, and Rav Kook permitted it.
• No contact with water: upon examining the process it emerged that at every stage the sesame seeds are pressed and crushed without ever coming into contact with water.
• The reasons for the decree do not apply: the concern of a grain kernel mixed in does not apply, since it can be checked and the color is different. The concern of resembling a grain dish does not apply, since one does not make a cooked dish out of the oil at all.
• A kal vachomer from wheat: wheat that has not come into contact with water is not forbidden. One may keep flour in the house on Pesach, and may even bake matzos from it on Pesach itself, working quickly so it does not become chametz, as was done in earlier generations when people did not have a supply of matzos for the whole festival. If that is so with wheat, which does become chametz, how much more so with a seed that never becomes chametz at all.
• The opposition: the ruling drew sharp attacks, including from the Badatz in Jerusalem, who held that there is no place whatsoever for sesame oil on Pesach.

(Some claim that a significant part of the disputes in matters of Pesach kashrus is rooted in economic considerations, and that possibility has not been ruled out.)

Peanuts: the approach of Rav Moshe Feinstein

• The basis of the discussion: is the prohibition of kitniyos a decree and enactment of the Sages, or did the public itself accept this practice upon itself in order to avoid confusion and mishaps?
• The distinction: a rabbinic decree stands forever until another beis din comes and permits it. An acceptance by the public, by contrast, applies only to what existed in the world at that time, and a new species is not included in it.
• The conclusion: Rav Moshe Feinstein demonstrates that this is not a rabbinic decree but a practice the public accepted upon itself. Peanuts were not found in those generations; they arrived from America, and therefore they are not included in that acceptance and are permitted.
• A kal vachomer for peanut oil: if the peanuts themselves are permitted, all the more so the oil extracted from them.
• Not universally accepted: not all poskim agree with this leniency.

Corn: the responsum of Rav Dov Lior

• From the standpoint of logic: corn too was unknown in those generations, so in principle it is permitted for that very same reason.
• In practice: since the Mishnah Berurah writes that corn is forbidden, he is unwilling to be lenient against his words, and in practice he does not permit it.

Cottonseed oil

• The permission: in the past there was cottonseed oil under the hashgachah of Rav Landau.
• The reasoning: cotton is not human food at all, and the decree was stated regarding food. If the crop itself is not eaten and only oil is extracted from it, it is not comparable to the legumes that were forbidden.
• What happened in practice: the product was eventually taken off the shelf.

Canola, rapeseed, lecithin and soy

• What canola is: an oil extracted from a plant that originated in Canada, which is not edible at all and may even be toxic. Its seeds undergo a special processing, and the oil is extracted from them.
• The reasons of those who permit: the plant was not among the legumes known at the time the custom was accepted, it is not human food, and extracting oil from it is an invention of recent generations. Accordingly many permit it, though it depends on which posek you ask.
• Rapeseed: rapeseed comes from canola; they are one and the same. Whoever permits canola oil permits rapeseed as well.
• Lecithin: this is a type of liquid added to products, for example spreadable chocolate, which without it could not be spread. In terms of its source it is like rapeseed, except that the mixture is slightly different, which is why it goes by another name.
• Soy: it too was not included in the decree, but the matter is more complicated because soy itself is eaten. There are those who permit it.
• Nut oil: nuts grow on a tree and are not kitniyos at all.
• The argument of nullification in a majority: in products containing rapeseed or lecithin one is not eating the oil itself; it is blended into a mixture that was made before Pesach, and it is therefore nullified in the majority. That is an additional reason to be lenient.

Fresh and frozen kitniyos

• The question: what is the status of fresh or frozen green peas, fresh green lentils and the like?
• The argument for leniency: there are significant poskim who argue that we must examine what exactly the decree was directed at. The concern of grain kernels mixed in applies mainly to dry kernels transported in sacks, not to fresh vegetables. And the concern of resembling a grain dish does not apply at all, since a dish of green peas looks nothing like a grain dish.
• The conclusion: since neither of the two reasons for the decree applies, some wish to say that the decree was never directed at these. This is not a ruling to permit, but an understanding of the basis of the debate; there is such an opinion and there is another opinion.

In passing · Practical issues in Pesach kashrus today

1. The label "for those who eat kitniyos" on products

• What changed: in the past products such as dark chocolate stated explicitly "contains rapeseed." A few years ago the labeling was changed to read only "for those who eat kitniyos."
• The clarification: when the matter was checked with the plant's kashrus supervisor, he ultimately admitted that the ingredient is rapeseed.
• The criticism: a blanket label of "for those who eat kitniyos" does the consumer an injustice. The actual ingredient should be specified, because someone who follows the opinions permitting rapeseed or lecithin is entitled to eat the product, and without that detail he has no way of knowing and deciding.

2. Products that did not exist in the world when the custom was accepted

• Chocolate: it reached the world from America roughly in the time of Columbus, around the year 1500.
• Coffee: some say it originated in Yemen and some say in Brazil. Either way, until the fifteenth or sixteenth century it was entirely unknown in the eastern world.
• The potato: it too did not exist in the world, and arrived somewhat later. It has been said, half in jest, that whoever brought the potato into the world deserved a Nobel Prize, for saving the world from famine.
• Peanuts: the very same story. They were found in America and never reached Jewish communities, and our forefathers had no acquaintance with them at all.

3. Pesach products made from potato flour

• The problem: someone who buys wafers made of potato flour on Pesach, along with soup nuts, rolls and pretzels, causes far more of a maris ayin problem for onlookers than kitniyos do. From that angle it is more serious than kitniyos themselves.
• The consistency required: someone who wants to feel a difference between Pesach and the rest of the year cannot be stringent about kitniyos while eating all these products; otherwise the custom becomes a mockery.

4. Our Pesach and our forefathers' Pesach

• The matzos: the matzos we eat are not like the matzos our forefathers ate; they ate soft matzah, which looked like a thin bread.
• The difference in the experience: for our forefathers it was very hard to distinguish between Pesach foods and everyday foods, whereas for us the matzos themselves create a substantial difference.
• Additional stringent customs: in the communities of Poland there were those who avoided further species, and even avoided "chamitzah" (a sour soup) because its name resembles the word chametz. That is no proof that all such customs are justified.