Question: Does one violate a Biblical prohibition by using a non-toveled utensil?
Short Answer: It is a machlokes whether one violates a Biblical prohibition by using a non-toveled utensil. Regardless, one may not delay toveling a utensil (that he uses), and if he does, he possibly violates a mitzvas asei (positive commandment).
Explanation:
I. The Source of the Mitzvah
The pasuk in Parshas Matos (BaMidbar 31:23), discussing the utensils plundered in the war with Midian, states that “Kol davar asher yavo ba’eish, taaviru ba’eish v’taher,” that any utensil that is normally used on the fire, must be cleansed (i.e., kashered) through fire.
The Gemara (Avodah Zarah 75b) notes that since the Torah previously stated that such utensils need to be kashered, the word “v’taher” in this pasuk must be referring to an additional taharah, i.e., dipping the utensil into water. The Gemara explains that the utensil must be dipped into 40 sa’ah of water based on the pasuk “b’mei nidah.” [As an aside, the Aruch HaShulchan (Yoreh Dei’ah 120:3) elaborates that the word “v’taher” is out of place in the pasuk, as we are not talking about tum’ah/taharah, but rather about kashrus. Thus, the word “v’taher” must be teaching a separate obligation of t’vilas keilim].
The simple explanation of this Gemara is that the mitzvah of t’vilas keilim is d’Oraisa, as it is based on a pasuk. This appears to be the opinion of Rashi (ibid, s.v. zuza) who, in the context of discussing whether a certain utensil needs t’vilah, writes that this mitzvah is “a g’zeiras ha’kasuv,” implying that it is d’Oraisa.
The Rambam (Hil. Maachalos Asuros 17:5), on the other hand, calls t’vilas keilim a mitzvah “mi’divrei sofrim” and understands that the pasuk of “v’taher” is merely a “remez” (an allusion) to the mitzvah. The Kesef Mishneh (ibid), therefore, interprets the Rambam as holding that the mitzvah of t’vilas keilim is only d’Rabbanan. However, he cites the Rashba who interprets the Rambam as holding that the mitzvah of t’vilas keilim is d’Oraisa. According to the Kesef Mishneh, the Rashba interpreted the Rambam this way because of the Rambam’s usage of the phrase “mi’pi ha’shmuah.” The Lechem Mishnah explains that the Rashba interpreted the Rambam as holding that the mitzvah of t’vilas keilim is d’Oraisa based on the phrase “mi’divrei sofrim,” which actually means d’Oraisa.
Practically, the sefer Y’shuos Yaakov (cited in Shiurei Halachah B’rurah, T’vilas Keilim, p. 11) rules that t’vilas keilim is only d’Rabbanan. However, the vast majority of poskim, including the Shulchan Aruch, rule that t’vilas keilim is d’Oraisa. Indeed, the Shulchan Aruch (Yoreh Dei’ah 120:14) rules one doesn’t believe a child under bar or bas mitzvah that they toveled a utensil unless an adult witnessed the toveling. The Vilna Gaon (ibid) comments that the reason why we don’t believe the child is because t’vilas keilim is a d’Oraisa, and “this is the opinion of the majority of poskim.” The Pri Chadash (ibid) likewise notes that the majority of poskim rule that t’vilas keilim is d’Oraisa. [Note, though, that not every utensil requires t’vilah d’Oraisa, as will be discussed in later articles].
Further, the Shulchan Aruch (Yoreh Dei’ah 120:9) rules that a utensil that is posted as collateral (a “mashkon”) by a nachri to a Jewish lender requires t’vilah, but without a brachah. The Pri Chadash (ibid) proves from here that the Shulchan Aruch rules that t’vilas keilim is d’Oraisa, as the Gemara has a safeik whether such mashkon requires t’vilah. By ruling strictly, the Shulchan Aruch follows the dictum of “safeik d’Oraisa l’chumra.” There is no brachah, though, because there is a chance that a mashkon does not need t’vilah at all.
II. The Reason For T’vilah
What, though, is the reason for the obligation to perform t’vilas keilim?
The Taz (Yoreh Dei’ah 120:1) explains that the reason for t’vilas keilim is to remove “tum’as akum” from the utensils and to give them “k’dushas Yisrael.” Indeed, the Ritva (Avodah Zarah 75b) notes that the source of this reason is found in the Yerushalmi. The Chochmas Adam (73:1) and the Ben Ish Chai (cited in Vayomer Gavriel, p. 28) even compare this k’dushah to the k’dushah that a convert receives upon converting. Importantly, the Igros Moshe (Yoreh Dei’ah 3:21) posits that while this “tum’as akum” is not a real impurity, the Yerushalmi means that it is comparable to an impurity, as the utensil cannot be used by a Jew until t’vilah. The Chut Shani (cited in the sefer Reishis Darko, p. 165) explains that this reason highlights the importance of a Jew eating off utensils that are “kodesh” like a kli shareis.
On the other hand, the T’rumas HaDeshen (257), as well as Rashi (see above), understand that the mitzvah of t’vilas keilim is simply a “g’zeiras ha’kasuv” – a Biblical obligation without any particular reason. See also K’neses G’dolah (cited in Reishis Darko, ibid).
A key ramification between these reasons is whether there is any stringency to tovel a utensil that is simply borrowed from a nachri. The sefer Reishis Darko (ibid) cites a machlokes between the Darchei T’shuvah (yes stringency) and Chelkas Baruch (no stringency) on this issue. The Darchei T’shuvah rules that such a stringency exists because of the importance of always eating off utensils that have this k’dushah of t’vilah. But the Chelkas Baruch writes that no such stringency exists, perhaps because the g’zeiras ha’kasuv does not apply until the Jew acquires the utensil.
Another ramification, as suggested by the sefer Vayomer Gavriel (ibid), is whether the hag’alah (hechsher) must precede the t’vilah. The Rosh (Avodah Zarah, 36) cites the Rashbam who rules that the hag’alah must precede the t’vilah, because otherwise it is like a person dipping in the mikvah while holding a dead rat in his hands, i.e., the mikvah cannot cleanse him while he is holding something impure in his hands. Here, too, the t’vilah does not add k’dushah to the utensil while it is non-kosher. The Rosh, however, disagrees, as it is simply a g’zeiras ha’kasuv. Practically, the Shulchan Aruch (Yoreh Dei’ah 121:2) cites both opinions. The Shach (5) rules that a utensil, which first had t’vilah before hag’alah should have a second t’vilah after the hag’alah.
III. Forbidden To Use
But what about if one uses a utensil before t’vilah, for example to prepare food; is the food now forbidden to eat? If he nevertheless eats the food, does he violate a d’Oraisa prohibition?
The Shulchan Aruch (Orach Chayim 323:6) cites two opinions whether it is permitted to tovel a utensil on Shabbos. The Pri M’gadim (Mishbetzos Zahav, Orach Chayim 323:5) is troubled by the lenient opinion, as the Shulchan Aruch (as set forth above) holds that t’vilas keilim is d’Oraisa. Accordingly, it should be forbidden to tovel a utensil on Shabbos, just as it is forbidden on Shabbos to tovel a utensil that is impure with a d’Oraisa tum’ah because of “m’sakein manah” – that you are making this utensil usable on Shabbos. The Pri M’gadim provides no answer to this query.
The sefer Shiurei Halachah B’rurah (ibid) proves from here that the Pri M’gadim holds that not only is the mitzvah of t’vilas keilim a d’Oraisa, but likewise the prohibition of using a non-toveled utensil is d’Oraisa. Indeed, if the prohibition of using a non-toveled utensil was only d’Rabbanan, the Pri M’gadim’s analogy to a utensil that is impure with a d’Oraisa tum’ah falls away. The distinction would be clear: A utensil that is not yet toveled may be toveled on Shabbos, as using it without the t’vilah is not forbidden d’Oraisa. Because the Pri M’gadim does not make this distinction, it is apparent that he holds that even using a non-toveled utensil violates a d’Oraisa prohibition.
Interestingly, the Pri M’gadim’s strict view of the prohibition of using a non-toveled utensil has an important ramification. The Pri M’gadim (Mishbetzos Zahav, Orach Chayim 486) himself writes that a person who only has a non-toveled cup on the night of the Seder (and has no water to tovel it) may not use it for the Seder because the prohibition is d’Oraisa.
The Mishnah B’rurah (Orach Chayim 323, s.v. mutar), on the other hand, does answer the Pri M’gadim’s question by making this very distinction. It is permitted to tovel a previously non-toveled utensil on Shabbos because you are not making the utensil usable on a d’Oraisa level, since there is no d’Oraisa prohibition to use such a non-toveled utensil. Indeed, the food of such a utensil is permitted to eat.
Note though that Rav Shlomo Zalman Auerbach zt”l (cited in Ohel Yaakov, Kashrus L’Pesach U’T’vilas Keilim, p. 250) ruled that even according to the opinions that the prohibition is only d’Rabbanan, if the person has the ability to tovel, and he does not do so, he violates an asei (positive commandment).
Next Week’s Topic: Must glass utensils be toveled? Plastic utensils? If yes, is a brachah recited?
Rabbi Ephraim Glatt, Esq. is Assistant to the Rabbi at the Young Israel of Kew Gardens Hills and a practicing litigation attorney. Questions? Comments? Email: This email address is being protected from spambots. You need JavaScript enabled to view it..
