Mashgiach Wars and Halacha
By Yair Hoffman
“Oy It’s Kosher Combat” read the headline of the March 28th New York Post.
Apparently, a certain Isaac Bitton, the former Mashgiach of the Le Marais restaurant in
The Mashgiach threatened to and ultimately went public with his accusations. The OU posted a letter defending its position[i]. The restaurant decided to sue the former Mashgiach for $10,000,000. The restaurant got a ruling from a state judge that the former Mashgiach must cease posting defamatory remarks against the restaurant. The Mashgiach’s family member said that he would not comply. A lawyer for Le Marais, Richard Klass, told the New York Post that “the allegations have cut business at the French kosher Midtown eatery by 30 percent.”
These are the basic facts. The question arises as to what the halacha says about all this. We know that there is a concept in halacha called “Aid echad ne-eman beissurin” – one witness is believed in regard to matters of prohibition. In other words, even though in matters of money and issues having to do with marriage and divorce the Torah requires the testimony of two witnesses, there are times when we do rely on the testimony of one witness.
The issue of one witness being believed is one of the underpinnings of the laws of Kashrus. While in commercial establishments, quite often Kashrus agencies do not rely on this when there are possibilities for financial gain on the part of the lone witness, we do rely on this in regard to many matters. It is necessary that the lone witness be a Sabbath observing Jew. When a Kashrus agency appoints a Mashgiach, it is using the concept of an Aid Echad. The Aid Echad is believed whether it is to permit or forbid food. There are questions in the Achronim as to whether the concept of Aid Echad is actually viewed as actual testimony or whether it is merely that the witness has a legal status of reliability[ii].
Yet here we have an incident where apparently the information provided by this first witness quite possibly did not check out with the words of another witness or witnesses. The Shach, discussing the laws of Yayin Nesach - wine that is poured by gentiles (Yoreh Deah 127:14) clearly states that when one witness is refuted by a second witness, the first witness is not believed. He backs this up by citing a responsa of the Rashba. Applying this Shach to our case, and assuming that the other witnesses interviewed by the OU have actually refuted the words of the first Mashgiach, then the OU’s position seems to be correct.
There is of course the possibility that the other witnesses are not actually refuting the words of the first Mashgiach, but merely not confirming his words. If this is the case, then the first mashgiach’s statements should be believed. Also, it is not clear as to with whom the OU actually spoke. Were they valid Aid echad witnesses or not?
There is also the possibility that the OU is using other types of evidence to counter the words of the Mashgiach. Depending upon the strength of this evidence, it may be an error or it may actually counter the testimony of the Aid Echad. Other types of evidence have a halachic status that can range between “very strong” – an “anan sahadi” to relatively weak.
There is, however, another position other than the Shach’s. The Bais Shmuel in Even HoEzer (42:7) reads the concept of one witness clashing with someone as referring not to another witness, but to the actual owner. If, however, the first witness clashes with another witness, the Bais Shmuel indicates that the first witness is believed. Rabbeinu Yerucham holds this very same position (Toldos Adam VeChava 23:3: p, 196) The Chazon Ish (EH 59:47) however, seems to disagree with the implication of the Bais Shmuel.
The signatures on the OU letter are all reputable Rabbinic figures, and it is assumed that the OU screens and hires only reputable, reliable, and respectable Mashgichim. It has also been alleged that certain kashrus threats (that may or may not have been made by the chef) may have not been serious but just out of anger and personality clash. If this turns out to be the case, then the OU should take steps to ensure that Kashrus issues should bnever be joked about.
It has been suggested that another trusted Kashrus agency should examine the Mashgiach’s allegations and make a determination as to whether any steps need to be taken or not. Kashrus Agencies often rely upon each other in regard to numerous matters, and it would be an effective manner in which to rebuild the alleged loss of business to the restaurant in question. This suggested protocol might be of benefit to Kashrus in general, not just in this case[i] The text of the OU letter dated March 22, 2007 reads as follows: A few months ago, a mashgiach at Le Marais restaurant, Mr. Isaac Bitton, alleged that on several occasions, one of the chefs at Le Marais intentionally compromised the kashrus at Le Marais, and that he had been fired from his previous employment for that very reason as well. Mr. Bitton insisted and demanded that the chef be fired.
Over a period of months the OU carefully researched and investigated every accusation, and we spoke to all parties whom Mr. Bitton claimed had information. Obviously, the presence of an individual who is hostile to our kosher program would seriously compromise our ability to provide reliable supervision. At the same time, fairness dictates that if allegations are made against a Jew or non-Jew, the accusations must be independently verified before one is dismissed from his position.
The OU found no evidence of intent to compromise kashrus by this chef. People quoted by Mr. Bitton resolutely denied statements attributed to them. For example, Mr. Bitton claimed the chef was fired from Levana for kashrus infractions, and the management would verify that this was the case. We spoke to the management of Levana and they emphatically stated that this was not true. Mr. Bitton then said a sister of the management would confirm his allegation. She too said she had no knowledge of this matter. Mr. Bitton then claimed that he secretly tape recorded a conversation with the sister and she admitted and confirmed that the chef was fired for Kashrus reasons. The OU staff listened to the tape and at no point did she confirm the above. Initially, she denied that the chef was fired for Kashrus violations. After Mr. Bitton relentlessly pressed the issue, she said he should pursue the matter further with the appropriate parties, if he so desired. Mr. Bitton maintained that not denying the allegation was tantamount to confirming it. We considered it a misrepresentation to characterize this as a confirmation.
Other individuals who worked closely with the chef, such as the second Mashgiach at Le Marais, gave no support to the allegations. With the exception of Mr. Bitton, everyone found the chef to be cooperative.
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Mr. Bitton was dogmatic in his interpretations of situations and did not acknowledge the legitimacy of other opinions. We explained to Mr. Bitton that he was entitled to his opinion, but we do not have to agree. He insisted that his viewpoint is fact and not an opinion.
For example, in one instance the chef purchased dairy margarine for the restaurant (though it was caught before it was used). There is no evidence that the chef did not make an honest error. Indeed, the OU receives numerous calls from people who accidentally used OUD margarine in a meat dish. Mr. Bitton insisted the chef bought the product with malicious intent. In another case, a delivery of non-kosher fish (which was also not used) was dropped off at the restaurant over Shabbos while the store was closed. Mr. Bitton insisted that the chef made the order, though there was no evidence linking the chef to the order, and the fish company advised the OU that the delivery was made in error to the wrong customer. Once again, Mr. Bitton maintained that his interpretation was a fact and not an opinion.
Mr. Bitton threatened to make a public expose of this “cover-up”. The OU took a principled position and did not acquiesce to threats and intimidation.
[ii] See Chevas Daas YD 185 as to whether there is the limitation of “chozer UMagid” going back and retestifying regarding one witness. See also responsa Bais Shearim 214 and Shev Shmaytsa 7.
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