Sunday, August 21, 2016

RE: Open containers of milk in a non-Jewish store-

The following article was brought to my attention.

since there are major errors in this article "factual and Halachik",  I am forced to publish the proper view according to our SHULCAHN ARUCH. The issue we will deal with is using milk in an open container being labeled with a CHOLOV YISROEL label (Golden Flow, Pride of the Farm, etc), at a NON JEWISH convenience store. The author claims the laws governing this type of transaction are contained in SIMAN 118 (the 108 which is printed is probably a typo). This is 100% wrong. SIMAN 118 is discussing milk which is owned by a JEW and is being stored or transported by a NON JEW. 
In the scenario of a convenience store the milk is entirely owned by the NON JEW and he is selling it with the claim (inferred from the label on the bottle) that this is CHOLOV YISROEL. This is covered by the SHULCHAN ARUCH in SIMAN 114 SIF 4 כל אלו המשקים וכן החומץ של שכר אסור לקנותם מהם אם דמיהם יקרים מדמי היין שאנו חוששים שמא עירב בהו יין (עד שאין ס' לבטלו) בד''א כשמוכרים בחנות אבל אם רואה שמוציאים אותו מהחבית מותר ולא חיישינן שמא עירב בו יין שאם היה מערב יין בהחבית היה מתקלקל   
In SIF 5 it says as follows יין רמונים שמוכרים לרפואה מותר ללוקחו מהתגר אפילו שלא מהחבית אע''פ שדמיו יקרים מהיין משום דכיון דאית ביה קפידא לא מרע נפשיה  We see clearly from here that the rule of  לא מרע נפשיה  only applies to a TAGAR and not a CHANUS. A convenience store would definitely be classified as a CHANUS. In addition since the price of CHOLOV YISROEL is about $3.00  per gallon more than supermarket milk, we have also met the threshold of  דמיהם יקריםone would therefore be 100% prohibited from purchasing a coffee with milk from an open bottle in a convenience store.
The spoilage issue is dealt with by the Shulchan Aruch in the Bais Yosef on SIF 4. The Bais Yosef explains even though one is allowed to buy from the CHANUS when he sees the drink being taken from a barrel because we assume that the owner would not pour wine in the barrel since it tends to spoil the contents of the barrel, we still say that he is not allowed to buy the drinks being poured from smaller containers in the CHANUS, why do we not make the same assumption that the wine will spoil the contents. 
This is because the wine poured into containers are in small amounts and the containers are used up frequently therefore there is no fear of spoilage to inhibit the owner from adulterating the drink. The same applies to milk, we are not suspect that the owner will buy 10 gallons of supermarket milk and fill 20 CHOLOV YISROEL bottles and keep them for a week, but instead will buy one or two gallons and fill 2 or 4 containers for a one or two day supply where spoilage is nonexistent.
The lawsuit issue. Even though the mathematical possibility exists for a law suit we still have to use common sense and see if this possibility would deter a convenience store owner from substituting milk. The McDonalds law suit was filed by a major law firm which had the resources for this type of undertaking and hoped for a return on the investment, since McDonalds is a company with major assets. No normal law firm would expend tens of thousands of dollars filing a law suit against a convenience store whose owner has no assets. 
There is no normal convenience store owner in his right mind that would let the fear of a ten million dollar law suit deter him from saving $3.00 a gallon on milk. Even if we know for sure that the owner is a chronic paranoid he could also substitute the milk in his house and bring it to the store.  Therefore making sure the only way he could be caught would be to test the DNA in his milk against the DNA of all the CHOLOV YISROEL cows and prove that it doesn’t match.
We have a clear Halacha in the Shulchan Aruch which prohibits purchasing milk from a convenience store. There is no plausible HETER to permit this. For anyone wishing to read about how this Halacha was violated several years ago by a major Kashrus organization with a major food manufacturer you can download the following                                                          
Toshav Monsey                                                                                                       
THIS EXXON IS UNDER THE "KCL". SEE THE CHOLOV AKUM TOGETHER WITH THE CHOLOV YISROEL, for the worker to pour into the cholov yisroel as needed.

BTW- Cholov akum in the USA is Cholov Treif per Reb Moshe in a Teshuva, and Rav Eliyashev, Rav Wosner, Rav Shlomo Zalman, etc.
In Germany it may be Cholov Stam per Reb Moshes Teshuva.          


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