Regarding Eating Fish with Dairy

 There is no mention of a prohibition regarding eating fish with dairy in the Talmud. Several Talmudic statements (cited in coming paragraphs) indicate that it is permitted. The Rambam (M.T. Hilkhot Ma'akhalot Asurot 9:5) as well as other Rishonim specifically state that it is permitted and Shulhan Arukh codifies its permissibility (Yoreh De`ah. 87:3).

 However, there is an obscure passage in Rabbi Joseph Caro's Bet Yosef commentary (Y.D. 87.) Referring to the Tur's statement that fish with dairy is permitted, the Bet Yosef begins by citing the Mishnah (Hullin 103b) that codifies the prohibition of meat and milk ("All meat is prohibited to be cooked in milk except for that of fish...") and favorably quotes the following: "Rabennu Nissim stated that the Mishnah, in permitting the cooking of fish with milk is also permitting the eating of them together, as the Torah's prohibition of eating meat with milk is derived from the case of cooking. The Rambam and Rashbah also permitted eating fish with milk." The Bet Yosef does not cite a single authority who prohibits. Then come the strange words: "However, [fish] should not be eaten with milk because of danger as explained in Orah Hayim 173". That is all that is written in the Bet Yosef's famous `fish and dairy passage'.

 Although the Torah's dietary laws and the rabbinic legislation attached to them are not predicated on health considerations, something found dangerous or unhealthy may enter halakha through a different channel, that of `Health and Safety', which is a Torah imperative totally independent of dietary laws.

 Back to the Bet Yosef. Besides the incongruence of the concluding words with the permissible thrust of the previous lines, surprisingly, there is no discussion in Orah Hayim 173 or in any other place in the Bet Yosef of a problem attached to eating fish with dairy. In Orah Hayim 173, following the Tur, he speaks about fish and meat. He cites a Talmudic passage (Pesahim 76b), which has been widely accepted and itself deserves a discussion, indicating the problem of having fish and meat together:

 One who roasted fish with meat should not eat the fish with kutah (a dairy product) according to Raba Miparzika. Mor Bar Rab Ashe said that he should not even have this fish with salt (in other words, even alone) as it is causative of bad breath and `something else' (a euphemism here interpreted by Rashi and others as `tsaraat' or`leprosy'.)

 Most of the great authorities of the past four centuries who have written on this difficulty in the Bet Yosef have acknowledged that they do not have a satisfactory interpretation of the text. Some have explained the Bet Yosef as saying, in effect, `Don't have fish with dairy just as I explained in Orah Hayim not to have fish with meat.' Rab Hida, and others, have pointed out how strained such an interpretation is. The Bet Yosef would be uncharacteristically brief, not explaining a `new' regulation that he doesn't mention anywhere else and that has no well known source. He does not cite any halakha, minhag or health consideration without presenting its sources.

 A poseq's formulation of halakha is based on his reasoning, his sources and his traditions and is only as strong as they are. Absent these substantiating factors, particularly when introducing something new, a later-day poseq's formulation is not considered binding. The Bet Yosef himself always insisted on such a standard throughout his works. As Rab Hida put it: "When they said a poseq is supposed to explain his words, how much more so for one whose characteristic it is to explain, and he being the last, Maran z`l."

 Additionally, the passage the Bet Yosef quoted from the Talmud indicates that fish with dairy is permitted! The only reason Raba Miparzika prohibited the fish roasted with meat to be eaten with dairy is because it absorbed from the meat. Otherwise, the fish would have been permitted with dairy.

 Thus, many great rabbis concluded that the only acceptable explanation of the Bet Yosef passage is that a scribal error (ta`ut sofer) entered the text and it should read `meat' in place of `milk'. In essence, the Bet Yosef would be saying `although it is permitted to eat fish with milk, there is a problem eating fish with meat, as already pointed out in Orah Hayim'.

 Rab Hida also pointed out that such a textual emendation is strongly supported by the overriding fact that Shulhan Arukh never mentions any problem attached to eating fish with milk. This cannot be interpreted away, particularly being that there are a number of chapters in Shulhan Arukh where such a problem, if it existed, should have been included. Four such Shulhan Arukh citations follow:

 1. In Orah Hayim 173, which deals with washing hands in mid-meal, Maran states that one should wash between eating meat and fish but no mention is made of fish and dairy.

 2. In Yoreh De`ah 87:3, in defining the extent and application of the prohibition of meat and milk, Maran states that fish and milk may be cooked and eaten together without any mention of a problem.

 3. In Yoreh De`ah 95:1, Maran, codifying a Talmudic passage, states: "Fish cooked in a completely clean meat pot is permitted to be eaten with kutah (dairy)...". (As fish is parve, the possibility that the clean pot - which at most has only `taste' absorbed in it - transmitted the meat taste into the fish is discounted.) Again no hint of a problem.

 4. In Yoreh De`ah 116, in codifying a number of prohibitions based on Health and Safety, Maran writes that one should not eat fish and meat together but no mention is made of fish and milk.

 It is inconceivable that Maran would leave out of Shulhan Arukh - from a number of chapters where it would have been relevant and appropriate - a health regulation he believed in; it is far more probable that he originally intended to write fish and meat in the Bet Yosef but somehow our texts have fish and milk instead.

 The authorities who favor the scribal error interpretation include the most important post-Shulhan Arukh posqim in both Sephardic and Ashkenazic halakhic tradition: Ramah in his Darkeh Moshe (c. 1560), Toreh Zahab (1646), Sifte Cohen (1646), Pri Hadash (1692), Magen Abraham (1692), and Rab Hida (1785). According to these authorities there is no problem whatsoever eating fish with dairy. Most of the Jewish world has followed their pesaq.

 There is one source prior to the Bet Yosef who does mention a health problem associated with eating fish and cheese, Rabenu Bahya in his commentary on the Torah (1291). On the verse prohibiting meat with milk (Ex. 23:19), he comments: "It is the opinion of the doctors regarding the mixture of fish and cheese that were cooked together that it produces a negative disposition and leprosy." Some have speculated that Maran had seen this comment and this was his source although he omitted to cite it. It is important to note that this comment of Rabenu Bahya was totally based on contemporary medical opinion.

 If we do not accept the scribal error explanation, the most logical interpretation of the Bet Yosef-Shulhan Arukh discrepancy is that Maran changed his mind between writing the two, concluding that there is no danger. There are a number of cases in Shulhan Arukh where it is absolutely clear that Maran changed his mind from the Bet Yosef.

 There are some later authorities who followed the unemended text of Bet Yosef. Generally, they based their position on the medical opinion of their times. As the question is one of Health and Safety, they invoked the halakhic rule `considerations of danger are more serious than considerations of ritual prohibition' (sakana hamira me'issura). Interestingly, many of these strict posqim limited the regulation to fish with milk or cheese, but permitted fish with butter, as that is what they heard from doctors.

 As the danger presumed for fish with dairy by the strict authorities is `leprosy', the same as the Talmud stated for fish with meat, it is instructive to review the position of some of the leading authorities on the latter.

 The Rif (early 11th C.) and the Rambam (11th C.) did not include a prohibition of fish with meat in their halakha compendiums. In the case of the Rambam this is especially significant, as he was a physician and codified numerous health regulations in his comprehensive halakhic compendium Mishneh Torah. The Hatam Sofer (Responsa YD #101, c. 1841) explained the omission of fish and meat in the Rambam notwithstanding its Talmudic source as follows (slightly paraphrased):

 The Rambam in his outstanding knowledge of medicine and nature omitted the Talmudic health regulation of not eating fish with meat because he investigated and determined that there had been a change in the nature of Tosafot also has stated on a number of Talmudic health matters...but regarding fish with dairy...those doctors quoted as saying it is dangerous are incorrect. It is not dangerous and therefore completely permitted. The Rambam, chief of the physicians, is trustworthy for us. On fish with meat, however, we don't follow the Rambam in practice because, perhaps, it should be considered like an item decreed by the Talmudic sages which is not to be abrogated except by another Bet Din. However, we rely on the Rambam to the extent that we no longer consider fish with meat dangerous.

 The Magen Abraham (O.H. 173:1) regarding fish with meat states:

 Perhaps in our days it is not so dangerous as we see a number of items mentioned in the Gemara as dangerous for ru'ah ra`ah ('bad spirit') or other problems and in our days they do not cause harm, for the nature of things has changed. Also, everything depends on the nature of the region.

 Additionally, most Jewish communities have been lenient on fish with dairy through the centuries and their intuition and experience is that the combination causes no special problem. It has been traditional with the posqim to recognize far less compelling empirical evidence even on health matters mentioned in the Talmud.

 The Rambam's position is actually even more extensive than described above. He would advocate ongoing research to determine the reality and harmonize our practice with it. He authoritatively stated that when the Talmudic sages spoke on scientific and empirical matters, they spoke according to the best evidence available. In such cases, if we subsequently find contrary compelling evidence, we must modify our position (Moreh II:8 and elsewhere). The Rambam omitted from Mishne Torah fish and meat and all supposed health problems which research had determined were not or were no longer valid.

 CONCLUSION: There is no Talmudic or Shulhan Arukh source forbidding fish with dairy. That it some circles it once might have been some sort of regulation was totally based on out-of-date medical opinion. In such a case, we consult with present-day medical experts, who do not recognize any special problem with the fish-dairy combination. So in conclusion it is appropriate that we rely on the great posqim who made a convincing case that there never was a halakha prohibiting fish with dairy, on the long experience of the Jewish community that the combination is harmless and on present-day medical opinion which states that there is no special problem with the combination.

 Postscript: We see how much emphasis halakha places on health considerations. Medical and health science have a great deal to say to us today - and with much more compelling evidence than was available regarding health regulations that "made it" into our halakhic compendiums. Is it not a halakhic imperative to take seriously the many recommendations of modern medical and health science regarding tobacco, saturated fat and cholesterol, alcohol abuse and so much more, even if it causes us great inconvenience?

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