Meat and Milk Mix-Ups

Sally added tomato sauce to a milkhig soup, and then discovered that the tomato sauce did not have a hekhsher and contained meat! She called the company and found out that the meat content was approximately 5%. She knows that she has to kasher her pot, but she wants to know if she has to throw out the soup or can she give it to her doorman?

In two places the Torah addresses how we should dispose of meat that is not kosher. In our parashah, the Torah states:

And you shall be a holy people unto Me. You shall not eat any flesh that is torn of beasts (treifah) in the field; you shall cast it to the dogs. (Ex. 22:30)

This verse deals with an animal that is a treifah, that has been attacked and torn into by wild animals (think of Yaakov’s cry: “A wild animal has eaten him, tarof taraf Yosef, Yosef has surely been torn to pieces,” Gen. 37:33). As a matter of halakhah, the Rabbis understand this term more abstractly to refer to any fatal injury or puncture that the animal has suffered. And in our common speech, we use the treif even more broadly to refer to all non-kosher foods.

If we are to throw this meat to wild dogs, then the implication is that we must dispose of it and not derive any benefit from it, such as giving it to a non-Jewish neighbor. However, a verse in Devarim, tells a different story:

You shall not eat of any carcass (neveilah): you shall give it unto the sojourner (ger) that is in your gates, that he may eat it; or you may sell it unto a foreigner… (Deut. 14:21)

Here, we are dealing with a neveilah, an animal that died without proper ritual slaughter. While we cannot eat this meat, we can benefit from it: we can sell it or give it away to someone who can eat it.

The Talmud, perhaps influenced by this explicit permission in the case of a neveilah, states that the same is true when it comes to the treifah. The dogs referred to in that verse are our own dogs, and we are allowed to derive benefit from meat from an animal that is treifah as well (Pesahim 22a, Rashi Ex. 22:30).

Why, then, the different instructions? Rashi (Ex. 22:30, citing Mekhilta) famously states that the dogs were rewarded for not barking when the Israelites left Egypt, but this does not answer why this is stated in the case of the treifah and not the neveilah. Two explanations suggest themselves. First, scholars have already noted that when some mitzvot are restated in Devarim, the Torah often underscores a more societal- or human-oriented dimension of the mitzvah, and that would be true here as well. A simpler explanation is that an animal torn by beasts will be seen as repulsive, and perhaps even unhealthy, and thus not fit for human consumption.

Regardless, as a matter of a halakhah, a person is permitted to derive benefit from non-kosher meat (going into business with non-kosher foods is a different conversation). In our case, Sally could have given the tomato sauce with its non-kosher meat to her doorman. But it’s not that easy.  Because Sally put the tomato soup with meat in her milkhig soup, she might have to throw it out.

Meat-and-milk mixtures are not like other non-kosher foods. While the Torah only explicitly forbids us to cook a kid goat in its mother’s milk, the Rabbis understand this more abstractly to refer to the cooking of any meat and milk together. And because the Torah prohibits this three times – first in our parasha (Ex. 23:19) and twice more later (Ex. 34:16, Deut. 14:21) – the Rabbis understood the Torah to be saying that if meat were cooked in milk, it would be prohibited to eat it or to derive benefit from it.

It would thus seem that Sally has to throw out her soup. Giving it as a gift to her doorman would be seen as a type of benefit. It is most likely an expression of gratitude and, as such, halakhically considered as a type of “payment” – an act of reciprocity for some benefit she received (matanah ki’mekher, Baba Meziah 16a). Alternatively, it is an act of goodwill meant to engender a positive relationship, thus also resulting in some benefit to the giver.

Could Sally give it to a stray dog, along the lines of the Torah’s instruction for a treifah? The answer should be “yes,” since she derives no benefit from doing this. However, because of the taboo status of such a mixture, a number of poskim forbid doing even this (see Taz, YD 94:4 and Pitchei Teshuva YD 94:5).

But perhaps Sally can give her soup to her doorman. Ours is not the classic case of cooking meat with milk. First, the meat was only present in a mixture. Second, the meat that we are dealing with here is meat that was not ritually slaughtered, that is, neveilah. Why should these two factors matter?

When foods are in a mixture, they are batel, considered nullified and not present, unless their taste can be detected. This is the principle known as tam ki’ikar, the taste of something is considered like the thing itself. As a matter of halakhah, we assume that if the forbidden food is 1/60^th of the mixture or more, then it’s taste can be detected, and the mixture is forbidden (YD 98:1).

In Sally’s case, the meat was 5% of the mixture, certainly more than 1/60^th. Nevertheless, according to many Rishonim, and possibly the Shulkhan Arukh, the 1/60^th rule is Rabbinic in nature, and from a Biblical perspective, as long as the forbidden food is less than 1/8^th or – according to some 1/9^th of the mixture, the mixture may be eaten (see Arukh HaShulhan YD 98:37).  Following this, the soup would only be Rabbinically forbidden as meat-and-milk.

Why does this matter? Because Rambam and Shulkhan Arukh rule that a person may derive benefit from a meat-and-milk mixture when the problem is only Rabbinic in nature, for example, if the meat is chicken and not beef (YD 87:3). If we follow those who rule that Sally’s mixture, because of the low proportion of meat present, is only Rabbinically forbidden, Sally would be permitted to give her soup to her doorman.

There is another reason to permit.  While the meat was 5% of the tomato sauce, it was an even a smaller percentage of the soup. If it was less than 1/60^th of the soup, then it became nullified when the tomato sauce was mixed into the soup. Sally can still not eat the soup, because of the principle of hanan bi’shar issurim, which means that Rabbinically we treat the entire tomato sauce as if it were all the forbidden meat. But because this principle is Rabbinic in nature, Sally is permitted to derive benefit from the soup.

Finally, a number of poskim rule that anytime the meat or the milk is not directly present, i.e., when it only exists within a mixture, then any meat-and-milk problem is only Rabbinic in nature (see Yabia Omer YD 4:6.10). From the Torah’s perspective, they argue, it is only forbidden to cook actual meat, and not just the taste of meat, with actual milk. And, as we have seen, a person may derive benefit from Rabbinic meat-and-milk.

There is another relevant factor here as well. In addition to the meat being in a mixture, it is neveilah, meat not slaughtered properly, and hence not kosher. It is important at this stage to distinguish between two types of not kosher meat. One type is meat coming from a non-kosher animal, such as pork. Such meat is not included in the Torah’s prohibition and may be cooked with milk (obviously, it cannot be eaten). The other type is meat coming from a kosher animal, but which is a treifah or a neveilah. Such meat is included in the Torah’s prohibition against cooking meat with milk.

So why does it matter that the meat is neveilah? Because according to Rambam, the principle that ein issur hal al issur, one forbidden status does not take effect on top of a pre-existing one, means that this meat, which was already forbidden, does not now become forbidden in benefit. Some Poskim debate this, but Nodah BiYehudah rules that if financial loss is involved, a person can comfortably follow the Rambam’s ruling (Dagul Meirivavah, YD 87:3).

Based on all the reasons above, there is more than ample halakhic basis to conclude that the soup does not have a meat-and-milk status that would prevent Sally from deriving benefit from it.

Sally can give her soup to her doorman. When the Torah states that we cannot cook meat and milk together, it introduces this with the phrase: “You are a holy people unto Me.” One of the ways that we can demonstrate that holiness is to not waste food, to express gratitude, and to engender positive relationships with those around us.