A Responsum [Tshuvah] Regarding the Custom of Abstaining from Eating Qitniyot on Passover
by Rabbi David Golinkin on behalf of all the members of the Halakhah Committee of the Rabbinical Assembly in Israel, 5749
(unofficial abridgement and translation of selected sections by Benjamin Ben-Baruch with the inclusion of the translation of the summary provided in the introductory section published on the Internet by the Masorti Movement; references and footnotes are generally not provided here.
Note: I have recently become aware that the Masorti movement has placed summaries of their responsa on their website. I prepared my translation about nine years ago and shared both my translation and my efforts to circulate it with the Masorti movement. While they have endorsed neither my agenda nor my efforts, I have been doing so with their knowledge. Their site contains a brief "official" summary and the complete text in Hebrew (go to vol. 3) of the responsum on qitniyot
Question from Rabbi Matityahu Poterman(?) of Ashkelon: Does it behoove us, in the opinion of the respected rabbis, members of the Halakhah Committee of the Rabbinical Assembly in Israel, to recommend to the the Israeli public a change in the customs of Passover for the sake of the unity of the Jewish people? I ask this for the purpose of minimizing the differences between communities and to strengthen our commonalities by eliminating the custom of Jews of European origin (Ashkenazim) to not eat qitniyot [legumes -- as rabbinically rather than botanically defined] on Passover. It seems to me that in these confusing times, when we feel and see so much baseless hatred between the communities, it is incumbent upon us to recommend such an abolition, and indeed in other similar matters if any exist, so as to strengthen our commonalities. Of course we are dealing here with a custom so perhaps this is the place to deal with the issue of Jewish customs -- When is there a significance to matters of custom and when should customs be abolished?
[The following introductory section is from the English summary, found on pp. ix-x, which is a translation of the introductory section of the responsum.]
"Answer: In our opinion it is permitted (and perhaps even obligatory) to eliminate this custom. It is in direct contradiction to an explicit decision in the Babylonian Talmud (Pesahim 114b) and is also in contradiction to the opinion of all the sages of the Mishna and Talmud except one (R. Yohanan ben Nuri, Pesahim 35a and parallels). It also contradicts the theory and the practice of the Amoraim both in Babylonia and in Israel (Pesahim 114b and other sources), the Geonim (Sheiltot. Halakhot Pesuqot, Halaktiot Gedolot, etc.) and of most of the early medieval authorities in all countries (altogether more than 50 Rishonim!). This custom is mentioned for the first time in France and Provence in the beginning of the thirteenth century by R. Asher of Lunel; R. Samuel of Falaise, and R. Peretz of Corbeil - from there it spread to various countries and the list of prohibited foods continued to expand. Nevertheless, the reason for the custom was unknown and as a result many sages invented at least eleven different explanations for the custom. As a result, R. Samuel of Falaise, one of the first to mention it, referred to it as a "mistaken custom" and R. Yerucham called it a "foolish custom". Therefore, the main halakhic question in this case is whether it is permissible to do away with a mistaken or foolish custom. Many rabbinic authorities have ruled that it is permitted (and perhaps even obligatory) to do away with this type of "foolish custom" (R. .Abin in Yerushalmi Pesahim, Mamonides, the Ro"sh, the Ribash, and in any others). Furthermore, there are many good reasons to do away with this "foolish custom": a) It detracts from the joy of the holiday by limiting the number of permitted foods. b) It causes exorbitant price rises which result in "major financial -loss" and, as is well-known, "The Torah takes pity on the people of Israel's money". (See the essays on these two concepts in the Encyclopedia Talmudit.) c) It emphasizes the insignificant (qitniyot) and ignores the significant (hamaiz which is forbidden from the five kinds of grain). d) It causes people to scoff at the commandments in general and at the prohibition of hamaiz in particular - if this custom has no purpose and is observed, then there is no reason to observe other commandments. e) Finally, it causes unnecessary divisions between Israel's different ethnic groups.
"On the other hand, there is only one reason to observe this custom: the desire to preserve an old custom. Obviously, this desire does not override all that was mentioned above. Therefore, both Ashkenazim and Sephardim are permitted to eat qitniyot and rice on Pesach without fear of transgressing any prohibition. Undoubtedly, there will be Ashkenazim who will want to stick to the "custom of their ancestors" even though they know that it is permitted to eat qitniyot on Passover. To them we recommend that they observe only the original custom of not eating rice and qitniyot but that they use oil from qitniyot and all the other foods "forbidden" over the years, such as peas, beans, garlic, mustard, sunflower seeds, peanuts, etc. Thus they will be able to eat hundreds of products which bear the label "Kosher for Passover for those who eat qitniyot." This will make their lives easier and will add joy and pleasure to their observance of Passover."
I. Talmudic Sources
[Summary: The document contains short one paragraph discussions of 11 sources. In general the sources differentiate between grains that could become hamaiz and grains or cereal or staple foods that become "sour". In Biblical times, special breads for ritual use were baked, and from them a portion of the dough was taken and given to the priests. Only the five grains from which halah is taken can become hamaiz: hitim (wheat), she’urim (4- and 6-row barley), kusmim [Triticum dicoccum] [emmer, also known as lesser spelt, and sometimes translated as "rye" and sometimes translated as "spelt"], shibolet shu’al [2-row barley, usually translated as "oats"; there is disagreement as to which grain grown in biblical and Talmudic Israel this refers], and shipon (spelt). Rice,wild rice, sesame, legumes, poppy seeds are mentioned explicitly as permitted foods. One source suggests that there was an opinion that opened the door to prohibiting eating foodstuffs that could be confused with wheat flour.]
II. Rice, Wild Rice [panicum and similar grasses used as grain and fodder], and Qitniyot in the Periods of the Tana’im, Amora’im and Ge’onim
[Summary: We find that the authorities agree that there are only five grains that can become hamaiz; that legumes and rice are explicitly mentioned not only as items that are permitted but as items that many of the sages were accustomed to eating. We also find that the interpretations of the one Talmudic source that possibly could be understood as opening the door to prohibiting all foodstuffs that could be confused with flour do not in fact support an interpretation consistent with prohibiting these items on Passover.]
III. The Period of the Rishonim (Early Generation of Post-Talmudic Sages) -- Those that Permitted
[Summary: The vast majority of the Rishonim permitted rice, legumes, wild rice, beans, lentils and foods and products made from them. Sources from North Africa, Spain, Provence, France, Germany, England, and Italy are cited.]
IV. The Period of the Rishonim -- The Custom of Prohibiting and the Reasons Given for the Prohibition
[Summary: The earliest reference to the custom of prohibiting rice and legumes comes from 13th century France. This custom has three early expressions: (1) a prohibition ca. 1210 from Provence against eating humus; (2) an opinion that legumes could be used only if prepared a special way [halitah] in boiling water; (3) a discussion of Rav Peretz’s custom of not eating legumes, rice, beans, lentils, etc. on Passover. Although we find these opinions, and despite the fact that the custom of prohibiting rice and legumes spread throughout Europe, nobody -- not even the sources from the 13th century -- knew the reason for this custom. At least eleven different justifications for this custom can be found in the rabbinic literature from Europe -- and some of these can be dismissed as simply contrary to the facts. None are convincing and none stand up to a critical review. In addition to Rav Peretz’s opinion -- and even Rav Peretz admits that there is no halakhic prohibition involved here -- ten addtional opinions as to why this custom exists are presented to document the claims that (1) these are ex-post facto attempts to explain an existing cutom of unknown origin or purpose, and (2) that they do not stand up to a critical review.]
V. The Spread and Expansion of this Custom
[Summary: Not only did this custom spread, but additional restrictions were added. Caraway, peas, tea, coffee, potatoes, peanuts, radishes, garlic, oil processed from qitniyot, sesame, mustard, sunflower seeds, etc. were all prohibited by one or more authorities. The situation in central Europe (Ashkenaz) reached the point where many rabbis prohibited eating qitniyot on Passover even during times of famines and plague. This phenomenon reached its pinnacle in the 19th century in an episode known as the "Qitniyot Wars".]
VI. The Methodology of the Ahronim [Latter Generations of Post-Talmudic Scholars] in central and eastern Europe
[Summary: The question remains: Why did the latter generations become so severe regarding these prohibitions? Why did so many refuse to be lenient during hard times? The answer is very simple! They were simply unaware of the literature quoted above; they had no access to these manuscripts. On the other hand, they were all aware of Rav Peretz’s writings. Consequently they were convinced that an ancient decree was involved, not a mere custom. Two examples of this mistaken reasoning are presented.]
VII. The Most Reasonable Explanation for this Custom
The truth of the matter is that there never was any decree and none of the arguments we have [found in the literature and] presented above are the original reason for the custom. As far as we can discern, this custom was not originally connected specifically to Passover but rather to all of the holidays. This is explained by Rabbenu Manoah (Provence, ca. 1265) in his commentary on Maimonides (Laws of Festivals and Holidays 5:1). After rejecting the reason given in the book of customs he says, "It is not proper to eat qitniyot on holidays because it is written (in Deut. 16:14) that ‘you shall rejoice in your festivals’ and there is no joy in eating dishes made from qitniyot.
There is good reason to believe that this is indeed the original explanation for the origin of this custom. This reasoning is indicated in texts from 400 years earlier that we quoted from above: "And all kinds of qitniyot are permitted on Passover and holidays", or in a different formulation, "And all kinds of qitniyot may be cooked on Passover and also on all other holidays". Apparently, as early as the 9th century in Italy there were some who refrained from eating qitniyot on Passover and all other holidays because "there is no joy in eating dishes made from qitniyot". There are two possible reasons for this.
1. We know, from many Talmudic sources, that the poor and those of simple means were accustomed to eating qitniyot. We should also point out that similar customs can be found among the Greeks, Romans and Arabs. It is therefore no wonder that there were some who prohibited the eating of qitniyot on holidays.
2. Additionally, qitniyot and especially lentils were the foods of mourning and of the 9th of Av from the period of the Talmud. Simlarly, qitniyot were the food of mourners among many different peoples, e.g. the Romans in early times, the Austrians and Germans in the Middle Ages and until modern times. It is therefore no surprise that there were some who were convinced that it was forbidden to eat these on festive holidays. We can assume that this is the original reason for this custom. However, in the passage of time this custom that was associated with all the holidays became associated solely with Passover apparently because it was assumed that food prohibitions regarding a holiday certainly have to do with kashruth for Passover and laws of hamaiz. To those who think this unreasonable, we would just point out as far as is possible to discern the same process happened with regard to "The Great Sabbath" [Shabbat ha-Gadol]. Originally there was a "Great Sabbath" preceding each of the three pilgrimage festivals but in the course of time this appellation became used exclusively for the sabbath before Passover!
VIII. Stupid Custom/Mistaken Custom/Additional Restrictions/Additional Restrictions without Reason or Purpose Whatsoever [she-ayn lah ta’am ve-rayah]
Despite the fact that the above reason is apparently the original historic reason for the custom under discussion, there is no doubt that all of the authorities except for Rabbenu Manoah were unaware of this. That is, in their eyes this was a custom without any known reason or purpose and therefore they invented justifications for this custom such as the 10 different explanations above. But several authorities took a different approach. They also concluded that this was a custom with no purpose but instead of justifying a custom that contradicted the Babylonian Talmud and all Talmuidic sources, they declared that there is no reason or purpose for this custom and they labelled it a "stupid [or foolish] custom", "mistaken custom", "excessive restrictiveness" or "restrictions with no purpose or justification". This alternative approach is reflected by five important authorities:
[1. Rav Shmuel of Falaise (in the 13th century), supports the custom but nevertheless admits that this custom of our fathers comes from a mistake and prohibits things that had been permitted.]
2. Rabbenu Yeruham ben Meshullam (Provence, 14th century) knows of the custom but utterly rejects it: "Those accustomed to not eating rice and various kinds of cooked qitniyot on Passover abide by a stupid custom which makes it harder on themselves [to observe and enjoy the festival] and I have no idea why they do so".
3. Rav Yaaqov ben Asher referred to above knows of this custom but rejected it: ". . . and it is excessive restriction and improper".
4. Rav Zvi Hirsch Ashkenazi known as "Zvi the Wise One" (1660-1718) and his son Rabbi Yaaqov Amdan (1697-1776) opposed the custom under discussion with all their might and wanted to eliminate it. They called it "A restriction that has no rhyme or reason for ever existing".
There is no doubt that they are correct. From a halakhic standpoint (and contrary to the historic reason we suggested above) this is a "Stupid Custom" or a "Mistaken Custom" because it is contrary to the Babylonian Talmud and to all Talmudic sources and because virtually every Jew who has observed this custom over the years has been convinced that it is connected to a greater or lesser extent to the prohibition against eating hamaiz.
IX. Is it Permissible to Abolish a Stupid/Mistaken Custom?
Regardless, we still have to clarify whether it is permissible to get rid of old customs in general, and more specifically a stupid or mistaken one (see the literature cited at the end of this responsum [but not included in this abridged translation]). We need to preface our remarks by saying that there is no easy or unambiguous answer to this question. We have already emphasized elsewhere that in every generation there has been a constant tension between the desire to preserve old customs and the need to adapt the custom and the halakhah to contemporary reality and changing conditions. Moreover, there is ambivalence even within the same authority! Here are two examples from among many: On one hand Rabbenu Tam said "The custom of our fathers is the Torah", "Custom is halakhah" and "Custom overrides halakhah" and on the other hand that "custom" is a "confounding hell [gehinom le-mafrei’a]" and that "there are customs which should not be relied upon even we are told that ‘it is the custom of the land’". And this is the judgement of Rabbi Moshe Eliezer. On one hand he writes "we should not eliminate or ridicule any custom because it is not for nothing that it became set in the tradition" and on the other hand he writes, "so what if we change the thing since in the time of the early sages it was permitted to change custom according to the times".
So let’s concentrate on our question: is it permissible to abolish an old custom when (1) it is contrary to the clear halakhah in the Talmud and of the Ge’onim and the majority of the Rishonim; (2) it is so far from having a clear or agreed upon purpose or justification that some authorities have even deemed it stupid/mistaken/excessive restrictiveness/restrictions without purpose or justification; (3) it leads to a scoffing at the religious requirements and prohibitions since many know that this custom has neither purpose or justification; (4) it leads to a burdensome financial loss among poor Jews who have to buy more meat, fish and mazot because qitniyot and rice are "prohibited". The answer is affirmative. Talmudic scholars and many authorities have already discussed this question -- many have permitted the abolition of a custom such as this and some have even obligated the abolition of such a custom.
[16 examples of such rulings are then presented. An abridged version of these selected rulings are:
1. "If restrictions are made by mistake, it is permissible to reverse the rulings and allow the thing" (Mishneh Eruvin 10:10, 101b)
2. Rabbenu Nissim comments on Holin 6b-7a saying "they were following a cutsom based upon a mistaken ruling and although they were convinced that the thing was prohibited when in fact it was permitted, it is permitted".]
6. "There are those who include a child in a minyan only if he is holding a pentateuch {copy of the Torah}. Rabbenu Tam calls this a "stupid custom" and gives four reasons why it should be rejected (Tosefot le-Brakhot 48a).
8. From the Responsa of the Ro"sh 55:10 (but compare Pisqay ha-Ro"sh Pesahim 3:4) we find the following: Rabbenu Asher ben Yehiel (Germany and Spain 1250-1327) deals extensively with the strength of a custom and the possibilities of changing them.
a. With reference to one custom of Toledo Jews which he calls a "mistaken custom" he says "Even if they followed this custom generation after generation it is simply a mistake and it should be abolished. . . ."
b. At the beginning of the responsum the Ro"sh deals with customs of things prohibited and permitted. He begins by saying that that one should change customs that are violations {of accepted Law} even if there are sages who abide by the custom. As an example he cites a custom of taking halah from rice which led to misinformation and to the mistaken view that rice is a grain from which halah should be taken. He then cites the Jerusalem Talmud which states that when when the law is ambiguous one should follow custom but when the law is clear one should not follow a custom that is contrary to the law.
i. Even if we have a custom that purposely expanded restrictions in accordance with the method of Rabbenu Peretz we should abolish it if it is likely to lead to misinformation about the law itself.
ii. Rav Yosef abolished the custom of taking halah from rice because the custom itself led people to believe that rice was a grain in the same category as wheat and barley. This is exactly what happened regarding the issue of eating qitniyot on Passover and therefore we should abolish the custom.
iii. When the law itself is unambiguous, as is the case here regarding the five grains which can become hamaiz, one should not follow a custom that is contrary to the law.]
X. Ashkenazim, Sefardim, Integration of the Diasporas and the State of Israel
Finally, we wish to briefly attend to the important point raised in your question: is it desirable to continue the accepted distinctions between Ashkenazim, Sefardim, Italians, and Yemenites? Perhaps it is worthwhile to eliminate these distinctions and create one people of Israel unified in its land? This is a serious topic deserving a full volume of its own and indeed there has already been written a whole book the history of the relations between Ashkenazim and Sefardim and the author touches to some extent on this topic. Authorities opposed to changes in Hebrew pronunciation or in the local variant of prayer love to use the verse "Heed the tradition of your father and don’t forsake the Torah of your mother" (Proverbs 1:8 and Pesahim 50:72). Undoubtedly, there is beauty in having each community preserve its individuality. In so doing, they honor their ancestors and their their original communities which in many cases no longer continue to exist. On the other hand, we have the desire to fulfill the verses "And who is like Your people Israel one nation in its land" "and gathered together from the four corners of the earth". If it is our will to be "one people in its land" it is then incumbent upon us to begin the slow process of the unification of halakhah and customs. In 1950 the Chief Rabbinate promulgated several rulings [taqanot] regarding persnal matters that tended towards unifying the people of Israel. Also the military chief rabbinate published a prayer book with a unified text [nusah] for the Israeli soldiers and it is desirable to continue in this direction. What is however worrisome today is the ongoing process of Sefardim becoming like Ashkenazim, of the lenient becoming restrictive. Sefardic sages dress like Ashkenazim, learn halakhah like Ashkenazim, and make rabbinic rulings like Ashkenazim. Instead of the moderate Sefardic tradition having a moderating influence upon the Ashkenazim we are witnesses to the reverse process. And with regard to the topic under consideration, instead of Ashkenazim beginning to eat rice and qitniyot on Passover according to the halakhah, there are Sefardim following this mistaken custom that has no purpose or reason for being (see above, Section V paragraph 2). Nevertheless, this is precisely the area in which it is possible to have a unified custom without anybody having to lose anything. Indeed, the Chief Rabbinate of the army has already ruled quite a few years ago that every soldier is permitted to eat rice and qitniyot on Passover and the army kitchens have been operated accordingly. We strongly recommend this ruling for all of the State of Israel. In this way we shall distinguish between halakhah and mistaken custom, increase the enjoyment of the holiday, make it easier for those with less financial means, and take one more step towards the unity of the people of Israel in Israel.
Source: Responsa of the Va’ad ha-Halakhah of the Rabbinical Asembly of Israel [in Hebrew], vol. 3, 5748-5749, pp. ix-x, 35-56
Maqor: tshuvoth va’ad ha-halakhah shel knesset ha-rabanim be-Israel, vol. 3, 5748-5749, pp. ix-x, 35-56
[TRANSLATOR’S CAUTION: To those who wish to abolish the custom of prohibiting qitniyot, caution should be taken when selecting food items for Passover. For example, soy bean products fall under the category of qitniyot, but many soy sauces are made from a combination of wheat and soy and would therefore be hamaiz. Also, the text here suggests that rye and oats may not be among the five grains which can become hamaiz. While there is no disagreement among authorities regarding the Hebrew terms for the five prohibited grains, there is disagreement regarding the meaning and translation of these terms (see above). As in all such matters, when in doubt one should consult one’s rabbi or other trusted and competent authority for guidance.]