Borer When Sorting Food from Food Where One Does Not Need Either of Them, or Needs Both^[1]

In the last issue, the Rav HaGaon R' Yitzchak Sultan שליט"א wrote with fine reasoning regarding the sorting of cutlery, in which he brought the general position of contemporary poskim (except for the Gaon Rav Ovadia Yosef^[2]) to forbid it, based on the position of the Biur Halacha and the various manners in which they permitted it and the opinions on the matter, but he did not enter into the depth of the matter to investigate the source of this prohibition and whether indeed the thing is forbidden according to the Shulchan Aruch HaRav. And the Pri Megadim already said it (regarding himself), that "this sugya is deep, and for a layman like me it is very very deep, and I will explain according to my strength, with the help of Hashem" (Rosh Yosef, Shabbos 74a), and what shall we answer after him. But I shall be as one who pleads his case before the sages, and this is my beginning, with the help of my Rock and my Redeemer.

Behold, the foundation of this ruling is a dispute between the Pri Megadim (Mishbetzos Zahav 319 Sk"B) and the Biur Halacha (se'if 3, in the d"h "Hayu") as to whether it is permitted to separate two kinds of food when one does not, at the moment, want either of them — for the Pri Megadim permits, while the Biur Halacha forbids, and he rejects the proof of the Pri Megadim and brings a proof for his words from the Rambam,^[3] and he concludes that the Rambam holds it is forbidden, and therefore one must forbid it out of concern for a chatas. And in truth, the Pri Megadim himself (in Rosh Yosef), and likewise other Acharonim, explained in the Rambam and in the Mechaber that they hold that the very separation of two kinds constitutes borer, and there is no need for [there to be] food and refuse; and although there is another approach in understanding the Rambam among the nosei kelim, we will not expand on this, since all of Israel discharge their obligation through the Rema, and we, in every place, are in the locale of Rav — and as we shall see, the Rema and his holy honor the Alter Rebbe rule like Tosafos and not like the Rambam. ^[4]

According to the position of Tosafos in the name of Rabbeinu Chananel and those who follow him, whom the Rema follows (as is proven from the fact that he emends the words of the Mechaber in siman 319 se'if 3: "If there were before him two kinds of food mixed together, he selects one from the other and leaves the second in order to eat immediately") and the Alter Rebbe, it depends specifically on food and refuse,^[5] and whence do we derive that one must also be concerned for the position of the Rambam or the Yerushalmi in this? But here is the difficulty: most contemporary poskim followed the Biur Halacha, who is stringent to be concerned both for the opinion of the Rambam (according to his understanding) and for the opinion of Tosafos; but for us, who in every place are in the locale of Rav, what matters is whether this accords with the position of the Alter Rebbe.

Indeed, the Gaon Rav D. Tverdovitz שליט"א wrote in Oholei Shem vol. 8 p. 205 that from the words of the Alter Rebbe in 319 se'if 5 it is implied like the words of the Biur Halacha, for regarding one who is borer among two kinds of food, even though it is permitted to select what he wants to eat immediately, nevertheless "if he selects it and leaves it to eat after a time, even on the same day he is liable." But in my humble opinion, and with the pardon of his honor, his words topple the roof [i.e., are unfounded], for the discussion is where he wants one of the kinds and not the second kind, only that he wants to prepare it for another seudah; whereas the Pri Megadim is dealing with a case where he wants both of them, only that his intent is to leave them for after a time, and for whatever reason he wants them to be separated and not mixed — in which case there is no food and refuse at all, and one may also say that there is no tikkun in this.

And in general, this is no novelty of the Alter Rebbe, for in the Yerushalmi (Shabbos ch. 7 halacha 2) we find a dispute on this between Chizkiya and Rabbi Yochanan, and the halacha was decided like Chizkiya that he is liable, and so it is explicit in the Rif, Rambam (except that in the Beis Yosef he distinguishes regarding the duration of leaving which is forbidden according to the position of the Rambam, and this is not the place), Rabbeinu Chananel, Tosafos, Rosh, Meiri, Tur, Shulchan Aruch, Magen Avraham, etc., and we hardly find anyone who disputes this (except that many understood in Tosafos (Shabbos 74a) that they explained the intent of Rashi that with two kinds of food there is no prohibition of borer, but there are those who explained Rashi differently from the understanding of Tosafos in Rashi.^[6] In any case, it is clear that the Pri Megadim does not contradict all these great authorities who forbade selecting among two kinds of food when one wants one of them, and from the fact that the Alter Rebbe brings this ruling, it is obvious that there is no proof at all that he does not hold like the Pri Megadim.

And in my humble opinion, the opposite is more reasonable, for from the words of the Alter Rebbe in se'if 5 ("that he wants to select to eat one of them and leave the second") and se'if 8 ("that he wants to select one kind from its fellow in order to use it") it appears clear that he does not hold like the position of the Biur Halacha, for the implication of his golden language is that only when he wants one of the kinds and not the other kind(s) is it called borer, but to merely sort two kinds, there is no prohibition in this at all — like the position of the Pri Megadim. And this is founded on the position of Rabbeinu Chananel (whom the Alter Rebbe follows, and requires three [conditions] for permissibility: by hand, food from refuse, and immediately) and Tosafos (there, and this is its language: "And so Rabbeinu Chananel explained, that with food from food selecting applies, that he selects that which he does not wish to eat from within that which he wants to eat, for that which he does not want is considered refuse relative to that which he wants to eat, and so it is implied in the Yerushalmi...") that even in selecting food from food, it is forbidden only when he makes upon himself one of the two kinds (the one he wants) as food and the second (the one he does not want) as refuse. And also according to the reasoning of Rav Tverdovitz in his article there, that the Alter Rebbe forbids borer because of tikkun of the food (and he was already preceded in this explanation regarding the foundation of the position of Tosafos in the name of Rabbeinu Chananel, as below), it works out well, for when he does not want one of them specifically, there is here no tikkun at all but merely a separation, and the prohibition of borer does not apply to this at all.

Indeed, the Iglei Tal too, in the melacha of zoreh 61:2, derives from the Yerushalmi against Tosafos, that it is not mentioned at all that it is specifically when he wants one kind, "but the plain implication is that always one who selects one kind from within another kind is considered borer." And he brings a proof from the aforementioned Rambam, and from the Tosefta ch. 16 halacha 9 (Lieberman ed.), and this is its language: "If fruits became mixed for him with fruits, he selects and eats etc. If he selected these by themselves and these by themselves ... this one is liable." And the Iglei Tal infers, "and the implication of 'these by themselves and these by themselves' is that he wants both of them, not that he desires one more, and even so he is liable." However, Rav Sh. Lieberman already explained this Tosefta with fine reasoning in Tosefta Kifshutah, that here it is dealing with more than two kinds — "for with two kinds alone, if he selected the one, the second is selected on its own" — and therefore there is no proof from this, "because he is selecting each and every kind separately, and had his intent been only not to eat from the mixture, he would have needed to eat immediately after selecting one kind, and not to begin selecting again; and since he began to select the second kind before he ate the first, his end proved regarding his beginning that he considered the first as refuse, and he wants to eat the second, and his law regarding the first is like one who selects refuse from food, who becomes liable even [if he] eats immediately..."

But in the melacha of borer (319:15) the Iglei Tal explains the Tosefta in a different manner and expands on this as the good hand of Hashem was upon him, and concludes that with two kinds of food, when he does not prefer one of them it is worse still (!), for each one is considered food but each one is also considered refuse relative to the other kind. And upon this basis he holds (against the Terumas HaDeshen siman 57) that when one comes in the morning and wants to eat one kind immediately and the second kind at dusk, it is forbidden to separate them (for regarding the kind he wants to eat at dusk it is a double deficiency: one, that he selects refuse from food, and two, that he selects for after a time), and he brings two proofs for this: (a) that if we do not say thus, this matter of "on the same day" — how do you find it? and (b) how is [selecting] two kinds of food different, let it be forbidden with a single kind too (like the position of the Taz)? And there is room to expand and delve into these words which are pleasing to the palate, but when we examine carefully the words of Rabbeinu in se'if 5, it appears that the two difficulties fall away, and consequently there is again no proof for the novelty of the Iglei Tal:

To what does this apply — that it is permitted to select food from food — when it is all one kind; but if there were before him two kinds of food mixed together and he wants to select to eat one of them immediately and to leave the second to eat it after a time, then that kind which he wants to eat immediately is called food and the second is considered like refuse, and therefore he must select by hand that which he wants to eat immediately from within the second — that is, food from within the refuse — and not the reverse; and if he selects it and leaves it to eat after a time, even on the same day he is liable. End of the holy language.

And it must be said why Rabbeinu arranged the halacha in a reversed manner (unlike the other poskim), that first (in se'if 4) he writes that with food from within food it is permitted to select that which he does not want — which is the refuse (when it is fit to be eaten without difficulty) — and only afterward he writes: to what does this apply, with one kind, but with two kinds it is forbidden? For seemingly he should have written the reverse: first to bring the foundation of the ruling that it is forbidden to select food from within food, and only afterward to write that with one kind they did not forbid, since he is not selecting one kind from within its fellow, as the words of the Rema in the gloss — and why does he bring the exception before the rule?

And one may say that with this he emphasizes that in essence there is no prohibition of borer at all with food from within food, but rather that with two kinds, when he wants specifically one of them and does not want the second, he has made upon himself one of the two kinds (the one he wants) as food and the second (the one he does not want) as refuse (as above in the explanation of the words of Rabbeinu), but with one kind this does not apply. And the same is so with two kinds where he does not prefer one of them: there is here neither food nor refuse. And also in se'if 6 he emphasizes: "But anything that is one kind ... is not called borer at all, since it is all fit to be eaten and there is no refuse here, and it is permitted to select in any manner he wishes, even in order to eat after a time on the same day...."

And consequently the words of Rabbeinu are clear, that he opened in se'if 4 with the foundation of the ruling: "There is no prohibition of borer except in selecting refuse from food or the reverse, but if he selects food from food, even if he does not wish to eat at all except one of them, and takes the second and discards it — it is not called refuse on that account, since it is fit to be eaten..." and only afterward he comes to explain the exception, that with two kinds specifically when he wants one and not the second, it already does not have the law of food from within food, and one kind becomes food and the second kind refuse.

And regarding the first difficulty in the Iglei Tal, if he wants food A for seudah shlishis and does not want food B mixed with it, then he has made upon himself the second kind as refuse, as is explained in the Shulchan Aruch HaRav.

And one should not raise a difficulty^[7] against the aforesaid from the Shulchan Aruch HaRav 500 se'if 18, where he wrote: "It is permitted to nikkur (remove forbidden fats/sinews from) an animal on Yom Tov ... because the nikkur has no complete melacha in it, even though he is being borer and separating food from food, there is nothing to it since it is all one kind, only that the Torah forbade it for eating, and the prohibition of borer applies only in selecting and separating two kinds one from the other, or refuse from within the food, which are like two kinds" — for there he comes to emphasize that there is no prohibition of borer with one kind unless with actual refuse, and as the language of the Magen Avraham there se'if katan 12: "with something that is complete refuse or with two kinds of food, but here it is one kind and is not refuse, only that a prohibition is what rests upon it" — but the fact that it is forbidden to select two kinds one from the other, that is when he does not want one of them and made [it] refuse upon himself, and he relies on what he already wrote in siman 319, which is its place; and so is the way of the Shulchan Aruch HaRav to write concisely in one place and rely on what he explained regarding the sugya in its [proper] place.

And in Shabbos KeHalacha (Farkash) ch. 12 Biurim os 20 he wanted to prove that the Alter Rebbe holds like the Biur Halacha from se'if 18: "And therefore it is permitted to skim the fat floating on the surface of the milk, which is called (smetane), from above, and when it reaches close to the milk he shall leave a little of it with the milk — and this is [only] where this fat needs to be eaten on the same day, but if he does not need it, it is forbidden to trouble oneself from Shabbos for a weekday." Rav Farkash wanted to prove from this that the Alter Rebbe forbids separating two kinds of food. However, one who sees will see that even the Pri Megadim would concede that it is forbidden in such a case, for the discussion is where he does not want the milk for Shabbos (for if not, why would it be forbidden because of preparation?), and if so the milk is refuse. And moreover, seemingly it is proven to say that the discussion is that the milk is complete refuse after the fat is separated from it, for if not, seemingly there would be a difficulty from what the Tehillah LeDavid raised there, that milk and fat are one kind, and behold we hold that there is no borer with one kind? Rather, seemingly it is proven to say that the discussion is with complete refuse, and this is forbidden even from a single kind. In any event, however it may be, it is obvious that one cannot bring a proof against the Pri Megadim from a ruling with which even he holds thus.

And there is further to discuss this ruling according to the various positions regarding the essence of the melacha of borer, which we touched upon above in the give-and-take with the words of Rav Tverdovitz. For behold, the discussion is well known: why do we not say regarding borer that it is a melacha she'einah tzricha legufah, and they answered in several manners, and it depends on whether the melacha of borer lies in the tikkun of the food, as the position of the Ramban (Shabbos 106a, brought in the Tosafos Biur in the Ran there) and as the Yeshuos Yaakov, the well-known one, explains with fine reasoning (319:1), or whether it is a law in the refuse, in its separation and removal, which is the position of the Baal HaMaor (Shabbos 37b) — and although according to his position it is a melacha she'einah tzricha legufah, he holds that borer and zoreh are exceptions in that within [the category of] melacha she'einah tzricha legufah [one is normally] exempt.

Except that in the Mei Tal he innovated that in essence the position of the Ramban is a third position, that the melacha is essentially the act of separation, and it is not a melacha she'einah tzricha legufah since he has a need for this, and he concludes there that it is the very position of Chizkiya in the Yerushalmi against whom Rabbi Yochanan disputes (and he explains there that Rashi did not have the reading in our Talmud of two kinds of food, since he holds like Rabbi Yochanan, and this is not the place), and in essence it appears that the Rambam holds like this position (and so it is implied that the Biur Halacha understood in the position of the Rambam), and therefore with selecting food from within food, he does not require selecting that which one wants immediately, but rather it is implied from his words — and so it is in the Mechaber — that he may select that which he does not want and leave [it], on condition that he eats the remainder immediately.

Except that the Rambam follows his own position that he holds liable for a melacha she'einah tzricha legufah, but according to us, who hold like Rabbi Shimon that he is exempt, and so holds the Ramban, it requires study regarding the foundation of his position according to the explanation of the Mei Tal, for in every melacha she'einah tzricha legufah there is some need in it. For behold, with extinguishing it is obvious to the Gemara that according to Rabbi Shimon he would not be liable unless he needs the wick (Shabbos 31b) or the charcoal (41a). And according to the aforesaid there is room to raise a difficulty: perhaps Rabbi Shimon holds that the melacha of extinguishing lies in the act of extinguishing, which is a great need, as is obvious? Rather, learn from this that it is obvious to the Talmud that according to Rabbi Shimon he is liable only when he rectifies within the body of the thing on which the melacha is performed, as the answer of Rav Hamnuna, and some say Rav Adda bar Ahava, there (31b): "for in that case even Rabbi Shimon concedes, for he is rectifying a vessel" — and this is the interpretation of the concept of melacha she'einah tzricha legufah.

In any event, even according to this position that the essence of the melacha of borer is not a law in the food or in the refuse, but rather the very act of separation, this applies [only] when he separates between food and refuse, but when there is here no category of food and refuse at all, then he does nothing further; and just as it is obvious that there is no prohibition at all in separating foods into smaller portions, and there is no borer at all in such an action.

In any case, let us return to our matter. In the Biur Halacha, behold, first he wrote according to the position of the Rambam, but afterward (in the d"h "Ochel Miyad") he brought the Yeshuos Yaakov that with selecting food from within food, there is no aspect of liability from the Torah, since it is a melacha she'einah tzricha legufah; but he disputes him and concludes that with selecting two kinds of food, he is improving both of them. But seemingly this is a tremendous novelty that is not compelling. And what tikkun is there in the food by his separating two types? And where have we seen the melacha of borer in one merely improving the food? For more than this they permitted in the law of clear water and wine and in the law of spoiled leaves, whose prohibition is only rabbinic — and according to the position of the Biur Halacha it is not understood why both of them should not be forbidden from the Torah. And likewise I have not merited to understand his difficulty on the words of the Yeshuos Yaakov according to the words of the Rosh, and this is not the place.

What emerges from all this, if our words are correct, is that according to the position of the Alter Rebbe, there is no concern at all in sorting foods or vessels when he does not need any of them and does not prefer any of them, but rather wants to place them in their proper place, such as sorting cutlery after washing; and the same is so when he needs both of them but wants, for whatever reason, that they be separated one from the other (for example, if he wants to serve candies of different colors and wants to separate them on a plate for the sake of beauty).

And the silence of the poskim on this^[8], until the last of the Acharonim, cries out "expound me," for even though what we have not seen is not a proof, in such a case, behold, according to the position of those who forbid, if one is not careful about this one transgresses every Shabbos dozens of chatas prohibitions, Heaven forfend — and would it enter your mind that no posek would warn about this?! And see in Shu"t Teshuvos VeHanhagos vol. 2 siman 185, who sensed this (although he ruled to forbid).

And in practice, my dear friend, the Gaon HaChassid Rav Michoel Avishid שליט"א, among the great rabbis of Anash, ruled that it is completely permitted.

And even one who wishes to be stringent and to be concerned for the position of the Biur Halacha, behold, one may certainly rely without any hesitation on the responsum of the Minchas Elazar vol. 3 siman 42 (and its precious value in the eyes of our great rabbis is well known) regarding sorting printing letters, that when one takes each one first from whatever comes to his hand, and places them one by one in their place, and there is here no food and refuse,^[9] there is no borer in this at all (and not like the Gaon Rav Shlomo Zalman Auerbach and the Shevet HaLevi and the Chut HaShani^[10], who permitted only if one places them in the drawer immediately after washing and the like, but not to lift each one from whatever comes to hand in order to place it in the drawer designated for it^[11]).

However, it is very important to emphasize that the entire permissibility is exclusively when one desires both kinds in a completely equal manner (or does not desire any of them, for example in places where they require separating types of garbage (without entering into questions of muktzeh and more)); but if there is some preference for one of the kinds — such as if he needs the forks to be available for seudah shlishis and separates them from the rest of the cutlery — then this is borer from the Torah, and these matters are like mountains hanging by a hair. And may it be [His] will that we not stumble in a matter of halacha, and that we merit to conclude the halachic discussion in accordance with the halacha.