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Thought for the Day: The Argument for Leniency is More Powerful -- Living the Dream

As you may recall (or you can refresh your memory here), I have been going 'round and 'round about whether I can drink a certain beer that I had already purchased before any concerns were known.  The concern was and is: חמץ שעבר עליו הפסח; the brewery in question is Jewish owned (100% Jewish owned, in fact, which is a relevant factor, as will be explained shortly) and they do not sell nor otherwise divest themselves of חמץ during Passover.  That makes any beer that is produced from said חמץ forbidden to all Jews forever by rabbinic decree as a קנס/penalty.

There several reasons I have spent so much time on this.  The least reason was that I like that beer and I was at risk of losing $15 worth of it; that is: the remaining 18 bottles from the case I had bought before the news broke.  I will not buy this beer again unless/until they come under kosher supervision, but $15 is $15 dollars.  A vastly more important reason I have spent so much time on this is that the halachic principles are fascinating.  What really drove me, however, was the principle of כוח דהיתרא עדיף/the argument to permit holds sway.  Rashi (ביצה ב: ד"ה דהיתרא עדיף ליה) explains (and I paraphrase): the fact that so and so said that something is forbidden is no proof, maybe he was just being strict (and/or lazy), but if someone said it was permitted, he must have had strong reasons.  (Obviously we are talking about source who care and want to find the truth.)

So the last issue was the malted barley.  Here was the brewery's response to my inquiry:
We get our malted barley delivered through our rail spur nearby. Trucks carrying malt bring it onsite to the brewery daily, so it is a continuous cycle. We have many silos on site, with the biggest of which capable of holding nearly 250,000 pounds at a time. So yes, we do store a lot onsite but depending on our brew schedule and which brand we brewing, the malt billing varies quite a bit, even amongst (sic) just our IPA’s. We utilize many different varieties of malt, some are used much more regularly than others and some can be stored longer than others.
Now what?  Here's what: we now have a very strong reason to permit the beer, based on three halachic principle: ספק ספיקא/doubly inconclusive, ברירה/choice, תולין להקל/assume leniently.  Hold on... here we go.  First of all, since we have now clarified as much as possible and are still left with uncertainty, we can now apply the principle of ספק דרבנן לקולא/in case of doubt on a Rabbinic prohibition, the halacha is to rule leniently.  In fact, this Rabbinic prohibition is based on a קנס/penalty, so it is even easier to be lenient.  Suppose, however, you are nervous that one could actually go through the records and clarify the situation.  In a case of אפשר לברר, we can't rely on a single doubt.

So let's suppose there is still some forbidden malt in the silo from which they will draw to make my 18 beers.  The halacha of ברירה/choice goes like this:  Suppose there is some fraction, let's say x of the mixture is perfectly fine and I am to divide the mixture into two groups.  One group could be entirely permissible and the other entirely forbidden; alternatively each could be some mixture of the two.  Whether and when we consider the derivatives like the first case (יש ברירה) is a hotly debated topic throughout the talmud.  We posken, however, that on Rabbinic decrees was can assume the derivatives are entirely of one side.  Moreover, when one has two globs -- one of התר and one of איסור דרבנן -- and two vats into which those globs fall, the halacha is to rule leniently (יורה דעה קיא).  Hence, even if some of the malted barley that was owned by the Jew over Pesach is still around when they made the batch of beer from which my remaining 18 bottles were drawn; the halacha is that we say those only the malted barley that was purchased after Pesach was used in my beer.

Of course, I most certainly did not rely on the above evidence to permit myself the beer.  I presented my evidence and reasoning to R' Fuerst and he gave his approval to my conclusion.  I conclude with a "quote without comment" from the Mishna Brura in hilchos Shabbos (שכה ס'ק סב), where he is discussing allowing one to ask a non-Jew to bring beer through a public thoroughfare:
One should only be lenient for beer/ale and the like, which are necessary for Shabbos, since אי אפשר להיות בלעדם אלא בדוחק קצת/it is impossible to be without them without some distress.


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