Receiving Fish from Shabbat Fishing

Question: A Jewish friend sometimes fishes on Shabbat and brings me some of his (kosher) catch after Shabbat. Is it permitted for him to give me some and for me to accept them?



Answer: There are three opinions among the Tannaim (see Ketubot 34a) about the extent of the prohibition of ma’aseh Shabbat (receiving the main benefit of a melacha done on Shabbat – see Rama, Orach Chayim 318:1; Mishna Berura 318:4). The most accepted opinion (see Shulchan Aruch, OC 318:1) is Rabbi Yehuda’s: if the violation was b’meizid (on purpose), the violator may never use the result; other people may use it after Shabbat. For a violation b’shogeg (by mistake), the violator and others may use the result, but only after Shabbat. You are talking about b’meizid. (Poskim primarily agree that although we generally consider one who was brought up not Shabbat observant as a tinok shenishba, that is regarding possible sanctions against him. His actions in ignoring the laws of Shabbat, though, are considered b’meizid.)

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Rabbi Daniel Mann

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Therefore, your friend is forbidden to eat the fish. The Mishna Berura (318:4) rules that he is allowed to sell them (the Ktav Sofer, OC 50 says that when selling was the violator’s original intention, the benefit of selling is forbidden). Therefore, he is certainly allowed to give them away as a present, and ostensibly you would be allowed to eat them.

We, though, must discuss a complication. The Shulchan Aruch (Yoreh Deah 99:5) rules that if one purposely mixes non-kosher food with enough kosher food for bitul, the "mixer" is forbidden to eat the mixture, but others are permitted. It is also forbidden for a person on whose behalf the mixer acted. The Magen Avraham (318:2) states that logically the same thing should apply to ma’aseh Shabbat, i.e., the result should be forbidden forever not only to the violator but also for one on whose behalf he desecrated Shabbat. However, the Magen Avraham concludes that the Beit Yosef’s logic regarding bitul does not apply here. There, we are stringent because it is likely that one would improperly do bitul for a friend’s benefit since doing bitul is a weak aveira; Since Shabbat is a serious aveira, Chazal were not as worried that people would violate it on someone else behalf. On the other hand, the Ktav Sofer (ibid.) says that a mechallel Shabbat on a regular basis is willing to do so even for others. Whether or not we accept this Ktav Sofer is not a simple matter (see discussion in Bemareh Habazak I:31).

There are additional reasons for leniency. The Maharhsal and Taz (YD 99:10) say that the prohibition on the beneficiary of bitul is only if he was aware and/or happy about the perpetration. If the recipient was not in favor of it, he may benefit. The Pri Chadash (YD 99:13) argues. The machloket appears to be whether the penalty is to discourage from sin the perpetrator or the recipient. The lenient opinions seem to apply to your case, as well, as you do not want him to desecrate Shabbat. Furthermore, here your friend presumably fished primarily for himself (and perhaps more for the sport than for the fish), not for you. Indeed, we find regarding a non-Jew who did work for himself and for others, Halacha views it as the main intention being for himself (Shulchan Aruch, OC 276:2).

For a combination of the reasons above, it is not prohibited for you to accept the fish. It is better to not eat the fish until Sunday, so as not to benefit from the fact that he fished on Shabbat (see Pri Megadim, EA 325:22; Orchot Shabbat 25:7; Bemareh Habazak I:31 for discussions of this complex matter). This being said, taking the fish, certainly on an ongoing basis, is an affront to the spirit of our outlook on Shabbat and other Jews. While we do not scream "Shabbos!!" at non-Shabbat observant friends, we do not want to give any impression that we subscribe to the following approach: "To each his own; I will go to shul and pray for both of us; you fish and provide for both of us." According to the Maharshal (above), doing so could make the fish forbidden according to the letter of the law.