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Mishpatim 5765

By: Rav Ari Shames

Milk and Meat: A Conceptual Analysis of the Prohibitions

"You should not cook a goat in its mother's milk".

This week's parsha contains one of the more cryptic mitzvoth of the Torah, despite the seemingly simple manner in which it is written.

This, simple to understand, and straightforward sentence is the subject of volumes of Torah ShBall Peh. The derashot explain, modify and it would even seem, in some cases, contradict its simple reading. Our faith in the tradition of Torah Sheball Peh is exemplified in this particular mitzvah. Each and every word is scrutinized and questions are raised concerning the definition of "cook", "goat", "mother's" and "milk".

In this shiur I would like to discuss the additional prohibitions of milk and meat that are not clearly mentioned in the passuk- eating it and deriving benefit from it.

(For the sake of brevity I will use the abbreviation M&M for "milk and meat" which should not be confused with the candy of the same name which carries a reliable hashgacha in many countries).

It is generally accepted that M&M is prohibited on three different levels: cooking, eating and deriving benefit from. (There is a single, and rejected, position that one my derive benefit from M&M quoted in the Gemara in Hulin 116a).What is not clear; however, is what is the relationship between these different elements.

It is also interesting to note that there are at least six or seven different sources used to determine the prohibitions of eating and benefit!! The rule of thumb is that the more attempts to learn a particular Halacha the less clear it really is.

I- The Three Equal Mitzvoth Model

One way of viewing the issue is that we have three separate and equal mitzvoth, each describing a particular prohibition. The clearest proponent of this positon is the Tana Debay Rebe Yishmael who points out that the same passuk appears three times in the Torah and we are to understand that one refers to eating, one to cooking and one to deriving benefit from M&M. There is no reason to assume any discrimination between any of the mitzvoth. The Torah chose to hint at the mitzvoth in a cryptic manner for some reason which may not be clear to us but the result is nevertheless three independent issurim.

The fact that the term "cook" is used in the passuk simply indicates to us that in order for the item in question to qualify as M&M it must have been cooked together as opposed to simply being mixed together while cold or even fried together but not actually "cooked". A cheese burger for instance would not qualify as "cooked" according to most opinions and would therefore only be prohibited on a Derabanan level. In such a case the issur derabanan only covers the eating while one would be allowed to derive benefit from the M&M, see Yoreh Deah 87:1. If, however the M&M is actually cooked together is prohibited on the Torah level and it draws with it all three issurim equally.

II- The One Mitzvah Model An alternative approach is to see one of the elements as the main issur and the rest as resulting from this main issur.

This can be seen in two different directions. Cooking as the Center-

The Behag in his list of mitzvoth lists only the issue of cooking M&M. Clearly he believes that eating and deriving benefit are prohibited as well but when it comes to counting of the mitzvoth only cooking is listed. In one way or the other the other issurim stem from the issur of cooking.

It would seem obvious that his choice of the "leading" mitzvah is based on the simple reading of the passuk which refers only to cooking.

Eating as the Center-

Alternatively the Rambam (as explained by the Kesef Mishneh (Tumat Met 1:2) and Maachalot Asurot 9:1) writes that the only reason that the Torah prohibited cooking M&M is in order to avoid eating it.

The eating is what the Torah really had in mind and it chose to write the auxiliary issur in order that we would make a "kal v'chomer" concerning the primary issur. (He brings other examples where this phenomenon takes place: 1.The issur of incest with a daughter is not mentioned but rather is learned from the case of a granddaughter by kal v'chomer. 2. Tumah by means of carrying a dead body is not written but rather learned by kal v'chomer from being in the same room as a corpse)

What stands at the top of the pyramid is the eating and all other aspects are secondary.

III The Two Mitzvah Model-

The Rambam has a different approach to the issue at hand in his Sefer Hamitzvoth. In the list of negative commandments he lists # 186 the prohibition of cooking and # 187 the prohibition of eating M&M. The Rambam immediately poses the obvious question as to why on one hand he veered from the simple reading of the passuk and counted eating as a separate issur (as opposed to the Behag) while at the same time he ignored deriving benefit as separate (as in the first model above). The Rambam explains that while the issue of cooking and eating are separate, the issues of eating and benefit are inherently linked. The Torah has instructed us not to derive benefit from the item either by eating or in any other fashion. The model that is presented sees two parallel issurim one of cooking and the other of eating/benefiting.

It is not clear from the Rambam that either the eating or benefiting is seen as the defining factor, it would seem that he sees them as two descriptions of the same act. (This is difficult given that it is clear that the issur of benefiting applies even to a manner of enjoyment not related at all to eating as is discussed extensively in the poskim on one hand and that one is not allowed to eat even in a manner in which is not enjoyable on the other).

In any event it is clear from his words in the Sefer Hamitzvot that we have two mitzvoth: cooking and eating/benefiting.

In some cases the relationship between different elements of a given mitzvah or between different mitzvoth will lead to a change in a particular Halacha. In other cases it may not, but it is still crucial for us to seek a deeper understanding of all of the mitzvoth as Dvar Hashem.

A model for examining the rest of the parsha:

Our discussion of this particular mitzvah and the methodology we have used can be used to learn other parts of our very busy parsha. Try bringing up over the Shabbat table the issues of damages or shomrim that appear earlier in the parsha. Are these all independent mitzvoth or do they fit into some larger and more intricate structure. What is the level of interaction and how can the understanding of one affect our view of another?

Shabbat Shalom

Rav Shames