Insights into Halacha

For the week ending 9 April 2016 / 1 Nisan 5776

Buffalo Burgers and the Zebu Controversy

by Rabbi Yehuda Spitz
The Color of HeavenArtscroll

Parshas Shemini is best known for being the Parshah that discusses and specifies the requirements needed to discern which animals are considered kosher. For example, fish need to have fins and scales[1] while domestic land animals (beheimos) need to chew their cud (ruminant) and have completely split hooves[2]. Non-domestic land animals (chayos) share the same basic set of rules to be considered kosher, but have slightly differing halachos. Some of the more well known ones include that they do not have the prohibition of eating forbidden fats (cheilev) that a domestic land animal does, but there is a requirement to cover its blood immediately after slaughtering (kisui hadam), similar to a fowl but unlike a beheimah[3].

Buffalo Burgers

Our question is what is a buffalo considered? Can we partake of a nice juicy buffalo burger? Although the Shulchan Aruch himself rules that a buffalo is considered a kosher beheimah[4], it is quite certain that he was not referring to our American buffalo, which was unknown at the time and is truly a bison, but rather the Asian Water Buffalo[5]. However, even the American buffalo/bison chews its cud and has split hooves. Surely that should be enough to let us start grilling!

But, if so, why is its meat not more common? And, on an anecdotal level, this author has never seen Buffalo (Bison) Burgers advertised in Eretz Yisrael in any Mehadrin supermarket, butcher, or even fast food joint! So, as the expression goes, “Where’s the beef?”

Cryptic Comments

The reason for the lack of buffalo (bison) meat is based on a cryptic comment of the Shach, where he compares the kashrus status of the chaya to that of fowl.

The Torah enumerates the 24 various non-kosher “birds”[6]. Since so many thousands of bird species exist, the Gemara Chullin (61b) specifies four necessary indicative features (simanim) that identify a specific type as kosher. However, many early authorities contend that we do not rely on our understanding of these simanim, but rather only eat fowl that we have an oral tradition (mesorah) that this specific species is indeed kosher. Indeed, Rashi cites precedent from the case of the ‘Swamp Chicken’ (Tarnegolta D’Agma), with which even Chazal made a mistake (ad loc. 62b), not realizing at first that it is truly predatory in nature (doreis) and therefore non-kosher[7]. He therefore maintains that since we are not experts, we additionally need a mesorah to allow fowl to be eaten. The Rema[8] in fact, definitively rules this way, that one may not eat any species of bird without a mesorah.

The Shulchan Aruch in Yoreh Deah 80, 1, (Laws of a Kosher Chaya) discusses the different type of horns which distinguishes a chaya from abeheimah[9]. The Shach[10] enigmatically comments that “I did not elaborate since nowadays we only use what we received as a mesorah, similar to the laws of kosher fowl”. The basic understanding seems to be that the Shach is implying that just as for a bird to be considered kosher it needs to have a mesorah even if it fits all other requirements, so too a chaya would also need to have a mesorah to allow it to be eaten, even though it is technically kosher!

Mandating Mesorahs?

The Pri Megadim[11], the foremost commentary on the Shach, categorically rejects such a possibility, as it would run counter to the Gemara’s ruling[12] that identifying features are adequate to determine a chaya’s kashrus status. Additionally, there is no mention of such a requirement in any of the early authorities. He concludes that the Shach meant something else entirely, namely the differences between a beheimah and a chaya. Since the defining distinctions between a beheimah and a chaya are often unclear, one should not eat the cheilev of any species (permissible by a chaya, prohibited by a beheimah) unless we have an oral tradition that said species is indeed a kosher chaya. In other words, the Shach was referring to the need of a mesorah to allow a nuance in halacha, but not in actually identifying a kosher animal. The majority of later authorities agree with the Pri Megadim’s understanding of the Shach’s comment and rule likewise, that mesorah plays no factor in whether or not an animal (domestic or not) may be eaten; the only necessary requirements being that it chews its cud and has split hooves[13]. This would mean that buffalo burgers can be on the menu!

However, before you get that grill fired up, you might want to “Hold Your Horses (er… Buffalo)”. Two major later authorities, the Chochmas Adam and the Aruch Hashulchan[14] both seem to accept the Shach’s words at face value, and not like the Pri Megadim’s interpretation, implying that an oral tradition is needed to allow any land animal to be eaten. In fact, the renowned Chazon Ish[15] ruled this way explicitly in 1950, regarding the importing of the Zebu (“The Indian Humpbacked Cow”) stating that the Chochmas Adam’s interpretation of the Shach’s comment is the correct one! He therefore maintained that any “new” land animal may not be eaten unless there is a mesorah! He added that since the Chochmas Adam was considered in Lithuania (Lita) as the authoritative work on Yoreh Deah, we must follow his ruling relating to this[16]. The Chazon Ish concludes that the only known animals that we eat are “cows, sheep, and goats”. This understanding would obviously not permit the buffalo / bison either.

In fact when the “New Zebu Controversy” broke out in 2004, many wished to have Zebu meat banned, based primarily on the Chazon Ish’s strongly worded ruling from over 50 years prior[17].

Grounds for Leniency?

However, several contemporary authorities[18] pointed out many potential flaws with making such an argument, including:

1. If the Shach truly meant to qualify the permissibility of eating a chaya, he would have written it in the previous chapter (Y”D 79), which discusses which animals are kosher, and not where he actually commented, where only identifying features were being discussed.

2. The Chochmas Adam is not really any clearer in his ruling than the Shach himself; thus allowing his comments to be interpreted like the Pri Megadim’s opinion as well[19].

3. The Chazon Ish himself only restricted an animal that is considered a “new species”; it has since been proven that the Zebu has been eaten and considered kosher for a long time in many different countries[20]. In fact, due to this reasoning, the Chazon Ish himself ate turkey, the quintessential ‘New World’ fowl, based on a responsum of his father’s, Rav Shemaryahu Yosef Karelitz.

4. Rav Yaakov Kamenetzky has been quoted as maintaining that the Pri Megadim was considered the authoritative work in Lita, and not necessarily the Chochmas Adam[21].

5. Even if we would assume that the Chochmas Adam’s ruling would be binding for those in Lita, it most definitely would not be obligatory to any other communities, who would be free to follow their own halachic authorities.

6. The Chochmas Adam himself writes that deer (venison) is permissible, and as mentioned previously, the Shulchan Aruch ruled that Water Buffalo is kosher, proving that the Chazon Ish’s rule of only eating “cows, sheep, and goats”, is not absolute.

7. The Chochmas Adam and the Aruch Hashulchan both wrote explicitly that only a chaya needs a mesorah, not a beheimah. The Zebu (being a humpbacked cow) however, is considered a beheimah, not a chaya, and therefore should not require an oral tradition.

8. The Chazon Ish himself, in a later letter[22], accepts that the Zebu is technically a kosher animal, but reiterates that we need to have a proper mesorah to permit it to be eaten. Yet, he concludes that “in our times, with Reform making inroads into authentic Torah Judaism, it is impossible to allow new things to be considered permitted if in the past they were deemed prohibited... as one breach (of tradition) leads to subsequent breaches”. Nowadays, it can be debated that this logic might no longer be applicable[23].

Buffalo To Go?

Due to these rationales, as well as the facts that currently most milk cows in Israel are descended from Zebu, and that many Tefillin and Sifrei Torah are written on parchment made from their hide, and although initially reported otherwise[24], Rav Yosef Shalom Elyashiv zt”l, later concluded that these humpbacked cows are essentially permitted[25].

So, are we going to see Buffalo Burgers or ‘Zebu Zurprize’ in our local Israeli supermarket any time soon? Probably not. As even though many contemporary authorities rule that there is no real kashrus issue with them and that they may be eaten by even those stringent on the highest levels of kashrus, on the other hand, authorities maintain that out of respect and in deference to the great Chazon Ish, and especially in Eretz Yisrael, “the land of the Chazon Ish”, it is preferable to abstain from partaking of them[26]. For this reason Buffalo / Bison Burgers apparently won’t be found in Israel with a Mehadrin hashgacha, although more easily obtainable in the land “where the buffalo roam”.

This article was written l’zechus for Shira Yaffa bas Rochel Miriam v’chol yotzei chalatzeha for a yeshua teikif umiyad.

For any questions, comments or for the full Mareh Mekomos / sources, please email the author:

Rabbi Yehuda Spitz serves as the Sho’el U' Meishiv and Rosh Chabura of the Ohr Lagolah Halacha Kollel at Yeshivas Ohr Somayach in Yerushalayim. He also currently writes a contemporary halacha column for the Ohr Somayach website titled “Insights Into Halacha”.

[1] Vayikra (Shemini) Ch.11: 9 - 13; Devarim (Re’eh) Ch. 14: 9 - 10. For more on this topic see earlier article “Fish With Legs?!”.

[2] Vayikra (Shemini) Ch. 11, 1 - 3; Devarim (Re’eh) Ch. 14: 6.

[3] See Vayikra (Acharei Mos) Ch. 17, 13 and Mishna/ Gemara Chullin 83b and 89b.

[4] Shulchan Aruch Y”D 28, 4. The Rema however, is unsure and classifies it as a possible chaya. The main difference between these two positions is whether one should cover its blood after slaughter without a bracha.

[5] The Ba’er HaGolah (ad loc. 9) traces this to the Agur (1099) citing Rav Yeshaya HaAcharon of Italy. This buffalo is also mentioned by Tosafos (Zevachim 113b s.v. orzulaya), the Mordechai (Chullin 653), the Shach (Y"D 80, 3), and Aruch Hashulchan (Y”D 80, 12). In Italy “buffalo” is still used to refer to the Water Buffalo. It would be hard to imagine that these early authorities were referring to the American Bison which was completely unknown at the time of writing their sefarim. See Rabbi Dr. Ari Z. Zivotofsky’s excellent article “Kashrut of Exotic Animals: The Buffalo.”

[6] Vayikra (Shemini) Ch. 11: 13 - 24; Devarim (Re’eh) Ch. 14: 11 - 21.

[7] Rashi (Chullin 62b s.v. chazyuha).

[8] Rema Y”D 82, 3. The Shulchan Aruch (Y”D 82, 2) rules this way as well, but allows several more leniencies (see ad loc. 82, 3) than the Rema’s stronger language.

[9] For a fascinating discussion of what a unicorn might be considered, see Pri Chadash (Y”D 80, 2) and Shu”t Beis Yaakov (41).

[10] Shach Y”D 80, 1. See also Ibn Ezra’s commentary to Parshas Re’eh (Devarim Ch. 14, verse 5) who likewise writes an ambiguous comment related to beheimos and chayos; which can also possibly be interpreted in both of these different manners.

[11] Pri Megadim Y”D 80 S.D. 1.

[12] Gemara Chullin 59b.

[13] Including (ad loc.) the Kreisi U’Pleisi (2), Pischei Teshuva (end 1; he is arguing on the Beis Yaakov ibid. s.v. v’gam, who opines that a chaya must have another siman in order to be considered kosher: horns; the Beis Yaakov’s opinion is rejected by many, if not all, halachic decisors), Beis Yitzchak (Amudei Zahav 3), Mishmeres Shalom (S.D. 1), Darchei Teshuva (3), and Kaf Hachaim (5).

[14] Chochmas Adam (klal 36, 1), Aruch Hashulchan (Y”D 80, end 10).

[15] Chazon Ish (Y”D 11, 4 & 5), Kovetz Igros HaChazon Ish (vol. 1, 99; vol. 2, 83; and vol. 3, 113). These writings of the Chazon Ish were actually a series of correspondence between himself and the Chief Rabbi of Israel, Rav Yitzchak Isaac HaLevi Herzog. Rav Herzog wrote a Kuntress on the topic, Kuntress Pnei Shor (printed in his responsa as Shu”t Heichal Yitzchak Y”D vol. 1, 20) concluding that the Zebu is permitted to be eaten. He also maintained that there was a mesorah in India and other countries going back centuries that the Zebu was considered a kosher cow. He suggests that anyone who argues that a mesorah is required is possibly violating the Biblical commandment of ba’al toseif. See also Pa’er HaDor (of the Chazon Ish; vol. 4, ppg. 226 - 230), and Orchos Rabbeinu (new edition - 5775; vol. 4, ppg. 9 - 16), which cite and summarize the correspondence. The Beis HaLevi is quoted as being of the same opinion as the Chazon Ish - see Contemporary Halakhic Problems (vol. 5, pg. 255, footnote 15).

[16] The Chazon Ish’s brother-in-law, the Steipler Gaon (see Orchos Rabbeinu; new edition - 5775, vol. 4, pg. 91, 20) also held this way, that the Chayei Adam and Chochmas Adam were ‘sifrei yesod lehoraasav vhanhagosav’. His son, Rav Chaim Kanievsky, follows this as well, telling people who were nichshal in a Bassar B’Chalav matter, to relearn and review the halachos with the Chochmas Adam. See sefer Doleh U’Mashkeh (pg. 258 - 259), Rabbi Yaakov Skoczylas’ Ohel Yaakov (on IV”H, revised edition pg. 222, footnote s.v. v'shamati) and Rabbi Avi Weisenfeld’s Kashrus in the Kitchen Q & A (Teshuvos from HaGra”Ch Kanievsky ppg. 208 - 211).

[17] See Orchos Rabbeinu (new edition - 5775; vol. 4, ppg. 9 - 16) at length.

[18] Including Rav Yitzchak Isaac HaLevi Herzog (ibid.), Rav Meshulem Roth (‘The Hordonka Iluy’; Shu”t Kol Mevasser vol. 1, 9), Rav Shalom Krauss (Shu”t Divrei Shalom vol. 7, 38), Rav Shmuel HaLevi Wosner (Shu”t Shevet HaLevi vol. 10, 114), Rav Yisroel HaLevi Belsky (Shu”t Shulchan HaLevi vol. 1, Chelek HaBiurim 19), and Rav Asher Weiss (Minchas Asher al HaTorah, Shemini, 14). Although not all bring the same arguments, nevertheless, each of these authorities cites at least one of these reasons. This was also the opinion of Rav Moshe Feinstein (see Mesores Moshe pg. 211 & footnote 22), that the ikar is to follow the Pri Megadim’s understanding. See also Kovetz HaMe’ayen (Teves 5768, vol. 48, 2, ppg. 16 - 18) in Rabbi Dr. Ari Z. Zivotofsky’s article.

[19] See for example, the Beis Yitzchak (ibid.) and Kaf Hachaim (ibid.), who cite their opinions this way as basic understanding.

[20] See Shu”t Meishiv Davar (Y”D 22). Although referring to the turkey, the symbolic New World fowl, (which the vast majority of world Jewry eats, even though a mesorah pre-Columbus would be a seeming impossibility) nonetheless, the Netziv permits it to be eaten on this basis, that it has been eaten for a long time and is now considered having a mesorah. For more on the topic of the kashrus status of turkey, and its more kashrus-wise complicated companion, the Muscovy Duck, see Kenesses HaGedolah (Y”D 82, 31), Shu”t Shoel U’Meishiv (Mahadura Chamisha’ah, vol. 1, 69), Shu”t Divrei Chaim (Y”D vol. 2, 45 - 48), Shu”t Maharam Shick (Y”D 98 - 100), Shu”t Tuv Taam V’Daas (Mahadura Telita’ah 150 - 152), Shu”t HaElef Lecha Shlomo (Y”D 111), Shu”t HaRim (Y”D 8), Shu”t Tzemach Tzedek (Y”D 60), Arugas Habosem (Kuntress HaTeshuvos 16), Shu”t Binyan Tzion (Vol. 1, 42), Shu”t Dvar Halacha (53), Rav Yissachar Dov Illowy’s Shu”t Milchemos Elokim (ppg. 162 – 165; also citing teshuvos from Rav Samson Raphael Hirsch and Rav Nosson Adler, the first Chief Rabbi of England), Shu”t Melamed Lehoyeel (vol. 2 - Y”D, 15), Shu”t Mei Ba’er (19; who opines that the turkey came from India and has a mesorah dating back to Moshe Rabbeinu !!),Nachal Eshkol (on the Sefer HaEshkol, Hilchos Beheima, Chaya, v’Ofe 22, 10), Darchei Teshuva (82, 26), Shu”t Divrei Malkiel (vol. 4, 56), Rav Yosef Aharon Teren of Argentinia’s Zecher Yosef (ppg. 1a – 6b), Shu”t Har Tzvi (Y”D 75), Kaf Hachaim (Y”D 82, 21), Kovetz Mesorah (vol. 3, ppg. 60 – 65; in a ma’amar from the Beis Avi, Rav Yitzchok Isaac Liebes,regarding Rock Cornish Hens), and Rav Shmuel Salant’s posthumously published Aderes Shmuel (222; ppg. 225 – 228). Additionally, and quite interestingly, we find that several Acharonim, including the Bach (O.C. 79, s.v. kasav B”Y), Magen Avraham (ad loc. 14), Ateres Zekeinim (ad loc.), Ba’er Heitiv (ad loc. 12), Aruch Hashulchan (ad loc. 16), and Mishna Berura (ad loc. 26), understand the Yerushalmi’s (Eruvin Ch. 3, Halacha 5) ‘Red Chickens’ (Tarnegolim Aduma), which we must distance ourselves from its excrement while davening (see Shulchan Aruch ad loc. 6), to be referring to a turkey; giving implicit consent that it is indeed a kosher bird (however, and quite interestingly, it remains unclear how an American New World fowl was seemingly extant in Eretz Yisrael at the time of the writing of the Yerushalmi).In fact, the Chazon Ish himself ate turkey, based on a teshuvah of his father’s, Rav Shemaryahu Yosef Karelitz [this teshuvah was recently published in Shu”t V’Chiddushim Chazon Ish (132)]. See Orchos Rabbeinu (new edition - 5775; vol. 4, pg. 9, 1).

[21] Shu”t Shulchan HaLevi (ibid., pg. 282, s.v. v’yoser).

[22] Printed in Pa’er Hador (ibid, ppg. 228 - 230), and later reprinted in Kovetz Igros (vol. 3, 113), and Orchos Rabbeinu (ibid, pg. 12 - 13).

[23] It is worthwhile to note that another of the issues the Chazon Ish prohibits for the same reason is slaughtering meat in another country and importing it to Eretz Yisrael. This author is not entirely sure why that proviso is widely ignored (as even the most Mehudar Badatzim do shechita in foreign countries), but the Zebu issue erupted in renewed controversy, even as both are part and parcel of the same letter the great Chazon Ish wrote!

[24]Hoda’ah L’Tzibbur’, dated 21 Adar 5764 - signed by three ‘Talmidim’ and not Rav Elyashiv himself; originally published in the Israeli daily Yated Ne’man newspaper on March 19, 2004. See Orchos Rabbeinu (ibid.), Kovetz Yeshurun (vol. 22, pg. 934 s.v. uv”g), Contemporary Halakhic Problems (vol. 5, pg. 260), Rabbi Yirmiyohu Kaganoff’s From Buffalo Burgers to Monetary Mysteries (pg. 217 - 218, “Anyone For a Buffalo Burger?”), and Halachic World (vol. 2, pg. 162, “Bison Blues”).

[25] See Shu”t Shulchan HaLevi (ibid, pg. 284, 2), and Minchas Asher (ibid, pg. 82, s.v. hinei). See also Orchos Rabbeinu (ibid.) which details several fascinating conversations between its author, Rav Avrohom Halevi Hurvitz and Rav Ezriel Auerbach, Rav Elyashiv’s son-in-law, on this topic. He concludes that lemaaseh, Rav Elyashiv held that the Israeli hashgachos should not perform shechitah on Zebu to import it davka to Eretz Yisrael, as the ikar hanhagah should be according to “Rabban shel Yisrael” the Chazon Ish, but even so, notes that Rav Elyashiv held that the Chazon Ish’s psak is not the “psak hakavua b’davar issur achilas beheimos bli mesores”, and therefore was essentially meikil regarding other Zebu issues, such as chashashos of offspring, milk, Sifrei Torah andTefillin, etc.

[26] See Shu”t Shevet HaLevi (ibid.), Orchos Rabbeinu (ibid.), and Minchas Asher (ibid.), quoting Rav Elyashiv.

Disclaimer: This is not a comprehensive guide, rather a brief summary to raise awareness of the issues. In any real case one should ask a competent Halachic authority.

L'iluy Nishmas the Rosh HaYeshiva - Rav Chonoh Menachem Mendel ben R' Yechezkel Shraga, Rav Yaakov Yeshaya ben R' Boruch Yehuda, and l'zchus for Shira Yaffa bas Rochel Miriam and her children for a yeshua teikef u'miyad!

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