Practical Halacha

Benefiting from a Melachah preformed by a Jew on Shabbat

Rabbi David Sperling

One of the problems that many people face is how to cope when living with those who do not observe the Shabbat. Although most of the time we try to put ourselves in a Shomer Shabbat atmosphere, occasionally the question of benefiting from other Jews' Shabbat desecration comes up. What would be the law say, when a person was given a gift by their family that we know they purchased on Shabbat? In order to obtain the gift, the family violated many Shabbat prohibitions, such as driving in a car, the purchase itself, and carrying the gift where there is no eruv (Shabbat boundary that permits carrying). Would all this prohibit us from accepting the gift?

What about if they baked a birthday cake for us on Shabbat?

The Gemara - Three Opinions.

The Gemara records a three way argument about eating food that was cooked on Shabbat (Hullin 15a, Gittin 53b, Ketubot 34a, and BabaKama 71a). The permissibility of the food depends on three factors: - whether the cooking was done as an intentional sin ( mayzid ), or unintentionally ( shogeg ); whether we are permitting the food for the sinner himself, or for other people; and whether the food is to be eaten on the Shabbat itself, or after the Shabbat. Based on these factors the gemara tells us that:

UnintentionalIntentiona l For the For the sinnerFor sinnerFor Others others Permitted on Permitted Permitted R. Meir Permitted on Shabbat Shabbat after Shabbat after Shabbat R. Permitted Forbidden Permitted Permitted after Shabbat Yehudah after Shabbat forever after Shabbat R. Permitted Forbidden Forbidden Forbidden forever Yochanan after Shabbat forever forever That is, R. Meir holds that if the Shabbat desecration was unintentional, then the resultant product may be used by all even on Shabbat, but if the sin was intentional, then everyone must wait until after the Shabbat in order to use it. R. Yehudah holds a stricter opinion, and says if the sin was unintentional, everybody can use it, but only after Shabbat, but if the sin was intentional, then the sinner himself can never benefit from it, and other people can use it after Shabbat. R. Yochanan holds the strictest opinion, and says if the sin was unintentional, the sinner can never benefit from it, but others can use it after Shabbat. If the sin was intentional, then nobody can ever use it. (It is interesting to note that R. Meir's intentional case is equal to R. Yehudah's unintentional case. And R. Yehudah's intentional case is equal to R. Yochanan's unintentional case).

The Halachah.

Whilst most of the Rishonim (including the Rif, Rambam, and Rosh) rule like R. Yehudah (the intermediate ruling above), the Tosafot rule like R. Meir (the lenient view). The Shulchan Aruch (Orach Chaim 319,1) writes that the halachah is in line with the ruling of R. Yehudah. On the other hand, the Gr"a , (Vilna Gaon), argues with the Shulchan Aruch and writes that the halachah is like R. Meir.

The Mishna Brurah (319, 7) writes that while the normative halachah is in line with the Shulchan Aruch , and hence R. Yehudah, in time of need we can rely on the Gr"a and follow the lenient ruling of R. Meir.

In an interesting example of different halachic approaches, Rav Ovadiah Yosef (quoted in the Yalkut Yosef, 319 footnote 6) rules that one is never allowed to deviate from the ruling of the Shulchan Aruch , even in times of need. The Vilna Gaon is famous for his halachic approach in which he held that, unlike the closing of the Mishnaic and Talmudic periods, which obligated subsequent generations not to argue with the previous period, there was no such "closing" of the Rishonim period. Most halachists believed that the Shulchan Aruch marked a certain "closing" of the Rishonim period, and therefore it establishes a definitive ruling (to a greater or lesser extent). The Gr"a , however, was against seeing the Shulchan Aruch as an authoritative work.

Today, there is a range in the halachic world, with most poskim accepting theauthority of the Shulchan Aruch to a large extent, whilst occasionally relying onthe viewpoint of other Rishonim in order to rule against the Shulchan Aruch . On the other hand, there are opinions, exemplified by Rav Ovadiah Yosef, that hold the rulings of the Shulchan Aruch to be absolutely binding. [There are certain technical exceptions to this rule, as in cases of pure community customs]. The opinion of the Gr"a , that one can argue with the Rishonim , is not seen as a mainstream way of ruling halachah today, although the rulings of the Gr"a himself are certainly viewed as reliable,even against the Shulchan Aruch (though this point would be argued by Rabbis such as Rav Ovadiah Yosef).

Because of these differing approaches to the halachic process, we find Rav Ovadiah Yosef ruling, as I mentioned above, that one can not rely on the opinion of R. Meir even in times on need. I have heard from my teachers, (both R. Henkin and R. Shlomo Aviner), [in relation to a different issue entirely] that one can, in times of great need, rely on halachic opinions that are not in line with the rulings of the Shulchan Aruch and Rema, both for Ashkenazim and Sephardim. In our case, where the Mishna Brurah rules in times of need like the Gr"a , it seems to me that even a Sephardi can rely on this ruling.

The Halachah - Summary.

To summarize then, we have established that when someone unintentionally breaks the Shabbat, everybody can benefit from the sin only after Shabbat, however if the sin was intentional then the sinner himself can never benefit from the sin. However, in a time of need, one may rely on the lenient opinion which rules that everybody may benefit from an unintentional transgression on the Shabbat itself, and in the case of an intentional sin, everybody can benefit immediately after Shabbat.

This ruling is dependent though on several other factors, which sometimes serve to make the law either stricter or more lenient. These are as follows:

Sins according to Rabbinic Law.

The above strictures about benefiting from Shabbat desecration, relate exclusively to desecrations of Torah law. If rabbinic law is violated,then even R. Yehudah agrees with R. Meir. (Mishna Brura 318,3).

Therefore, in connection with the purchase of items on Shabbat itself, only a rabbinic sin is involved, as transactions of ownership, and handling moneyare forbidden solelyby the Rabbis. So even if the sin was intentional, everyone may benefit from the purchase after the Shabbat. If the sin was unintentional then everyone could benefit from it on the Shabbat itself. (See below for a discussion on the definition of intentional/unintentional). Sinning "With" or Sinning "To".

The Rashba (Shabbat 120b) quotes Rabbenu Yona (both are Rishonim ) as ruling that on Shabbat, one is allowed to eat food that was carried, even intentionally, from the private domain to the public domain (or vice versa). This is because, even though a Torah prohibition was violated, the strictures about benefiting from Shabbat transgressions were only instituted when the sinful action changed the object itself, such as through cooking. But when the transgression did not alter the form of the object, as in the case of transferring it from private to public domains, the Rabbis did not impose any strictures about benefiting from the sinWe could say that only when the sin was done "to" the object is it problematic to use it on Shabbat, whereas when the sin was done "with" the object, there is no further prohibition against using it.

The Rambam (Code, Shabbat, 6, 24) however, rules that this is only so if the sin was unintentional. But if the sin was intentional, then it becomes forbidden until after Shabbat. This opinion is cited by the Shulchan Aruch (405, 9). Despite this, the Shulchan Aruch HaRav, of the Ba'al HaTanya, rules that even in the case of an intentional sin, if the sin was only done "with" the object, it may be used. The Mishna Brurah quotes the Chayay Adam who rules that only when the sin was unintentional can this leniency be relied upon (Biur Halachah 318, "Achat M'Shar...").

So, in our case, there is room to say that everyone can benefit from the sin even on the Shabbat itself. This is because the gift was not manufactured or cooked on the Shabbat, rather sins were done "with" it - such as driving, carrying etc. On the other hand, we have seen that many Rabbis rule that because these sins were intentional, one nevertheless must be strict, and can only use the gift after Shabbat. Where there are no extenuating circumstances, one should be strict in this case. However, where there is a great need, we can use this opinion together with other lenient factors (see below), to rule leniently.

Intentional - Unintentional.

The classic definition of intention when it comes to Shabbat violation is that if someone knew it was Shabbat and also knew it was forbidden, it is called intentional. However, if someone forgot it was Shabbat, or forgot (or never knew) that it was forbidden, then we would classify it as an unintentional sin. Based on this, we could assume, that even though in our question the non- religious person does not keep halachah, they know it is forbidden to drive, shop, etc., and therefore their sins are intentional. There are opinions, though, that claim that a non-religious person, even whilst being fully aware that religious law forbids a certain act, can still be considered an unintentional sinner. A non-observantperson often takes the view that Jewish law is applicable only to "religious" Jews, and therefore he/she is not bound by it. Whilst this view is incorrect, it may justify describing these sins as "unintentional" - especially if coupled with the opinions that nearly all non- religious Jews today are in the category of "tinok she'nishba" (sinners through lack of education rather than rebellious disregard).

Although this is certainly not the accepted halachic practice, we can use this argument together with what we wrote above about sins done "with" the object and not "to" the object, to rule leniently in times of great need. This would mean that even if the gift was purchased on Shabbat itself, driven to us, and carried through the public domain, and even though the people who did this sin knew full well that "religious jews" are forbidden from doing such things, we could add together the following three lenient opinions:- 1) it may be considered an unintentional sin (according to what we have just written), 2) the halachah may be in accordance with Rabbi Meir who allows the benefit from unintentional sins on the Shabbat itself, 3) perhaps even in the cases of intentional sins, when the sin is done "with" the object as opposed to being done "to" the object, one can benefit from it on the Shabbat itself.

However, it should be stressed that this should only be relied upon in a time of great need. For example, I have seen responsa that rule in this fashion to allow soldiers to eat food brought to them at their remote guard-posts, even though the food was driven to them on the Shabbat in violation of the Shabbat (and also the army) laws. To rule leniently so that the soldiers havefood to eat whilst on active guard duty is not equivalent to ruling leniently to allow the trying on of a new dress that your mother bought for you on Shabbat, when it could easily be politely placed aside until after Havdalah, without embarrassing anyone.

I - Thou. Regular - Occasional.

Even without ruling leniently, based on what we learned earlier, it would follow that if somebody baked a cake on Shabbat (where there is no question about the kashrut), even if they are intentional sinners, we are allowed to eat the cake after the Shabbat is over. The cook who sinned though, is forbidden from partaking of the cake. (There are limits to this ruling depending on how regularly this occurs - see below). But what is the case when the cake was baked especially for me ? For example, if someone returned home after spending Shabbat away with religious friends, and found that their father had baked them a surprise birthday cake during Shabbat. Could the birthday girl eat the cake, because we ruled that everyone other than the sinner is allowed to benefit from the sin after the Shabbat, or, would we say that since the cake was made for her, she is considered like the cook himself, and is forbidden from ever eating the cake ?

The Mishna Brura (318, 5) rules that even if the sin was done for you, you may benefit from it directly after Shabbat. Even though if a non-Jew cooked for a Jew on Shabbat, one is required to wait the time it would take to prepare the food after Shabbat, the law of a Jew who sinned and cooked for us is more lenient. (This is because there is no fear that we will ask a Jew to break Shabbat for us in the future, but there is a real fear that we will ask a non-Jew to cook for us on Shabbat, which itself is forbidden). [Some opinions state that, in the case of a non-religious Jew,one should wait until the time it would take to prepare the food on motzei Shabbat (Pri-Megadim); however, Rav S.Z. Auerbach limited this solely to the case of a Jew who has denied his Judaism altogether.]

There are several good reasons for being strict in this ruling, though, and not eating the cake. The Ketav Sofer (Orach Chaim 20), writes that if the desecration of Shabbat is on a regular basis (e.g. the non-religious members of the household do the weekly shopping every Shabbat, or cook every Shabbat), it is certainly forbidden to benefit from the sin. Not only are we tacitly agreeing to the sin if we partake of the fruits of it, we may even be encouraging the sinner to continue to sin more. Even though there are Rabbis who argue on this point (see Har Zvi Orach Chaim 180) and say that if the sin was performed against your wishes, it is permitted after Shabbat, one should certainly refrain from benefiting from this kind of sin where possible. (Again, circumstances can vary greatly, and where it may be correct to "take a stand" and outrightly refuse to eat the cake by saying [politely and with respect,] "you know full well that I asked you not to break Shabbat for me !", this may be disastrous advice in another situation - for example, where the father would say "after what we went through to kosher the house for you, you won't even eat here !" One should take advice from a rabbi who knows your situation personally).

Cases of Argument.

There is one other case where we rule leniently in these questions. That is where the sin involved is considered permitted by some opinions. This is true even if the accepted halachic practice is to forbid the action. For example, both Ashkenazi and Sephardic Jews forbid the placing of cold soup on or near the Shabbat platter to heat up on Shabbat. This is because we rule against the Rambam who holds that there is no cooking after cooking even in fully cooked cold liquids, and hold that it is forbidden (perhaps even from the Torah). Even though it is totally forbidden to heat soup up on Shabbat, if someone did that (even intentionally), it would be permitted to eat the soup, even on Shabbat.

Another offshoot of this leniency, is if the sin took place when Shabbat was just coming in, and it is not certain if it occurred before or during Shabbat. Again, because there is doubt as to whether there was actually a sin (even though a person in doubt as to whether it is Shabbat is totally forbidden from breaking Shabbat), it is permitted to benefit from the sin.

Obviously, in order to apply this ruling one needs to be fairly conversant with all the laws, and their source, in order to know which laws are argued upon and which not. One should ask a Rabbi when in doubt.

Turning On the Light - An Example.

In order to show how these laws apply, let us look at a typical example. Unfortunately, even though you left the bathroom light turned on before Shabbat, you now find that it is turned off. Nonetheless, you go into the bathroom to use the toilet. Whilst you are in the bathroom, your non-religious mother passes the door, and realizing that you are sitting in the dark, "kindly" turns the light on for you.

The halachah is that because she sinned intentionally, and turning on a light is considered by all opinions to be a sin from the Torah (d'oraytah), we rule like R. Yehudah. Hence, you are not allowed to benefit from the light until after Shabbat. (Even though we learned that sometimes we could consider non- religious sinners as acting unintentionally, and we also learned that in times of need we could rely on R. Meir, this case is certainly not of great need. That being so, we will apply the standard accepted halachah without using any leniencies).

In practice this means that one can only use the bathroom in the same way as you would have without the light being turned on. If before the light was turned on you could have found the tap and washed your hands, then this is still permitted when the light is on (and one does not have to close their eyes). But if it was too dark to read before the light was turned on, one is not allowed to read by the light. In Conclusion.

We have seen then that in certain situations one is allowed to benefit from Shabbat violations. Whilst this article is by no means exhaustive,I hope that it will provide enough background to enable further study and questions on related issues.

May we be blessed to see the fulfillment of the prayer "And the Children of Israel shall keep the Shabbat, to make the Shabbat an eternal covenant for their generations."