Shabbat Parashat Balak| 5764
Ask the Rabbi
Question: Does milk that was milked on Shabbat (in Israel) without employing any halachic solutions become not kosher because of the violation?
Answer: This response deals with the kashrut element of the issue and not with the policy questions of going out of one’s way to either support shomer Shabbat dairies or send a financial voice of disapproval to chillul Shabbat.
The gemara (Ketubot 34a) brings the opinions of three Tanaim regarding food which was intentionally cooked by a Jew (or otherwise produced in a forbidden manner- see Rama, Orach Chayim 318:1) on Shabbat. The most stringent opinion, that the food becomes forbidden mid’oraita for everyone forever is not accepted as halacha. R. Yehuda and R. Meir agree that there is only a rabbinic prohibition, but they argue as to its degree. The Shulchan Aruch (Orach Chayim 318:1) rules like R. Yehuda that we penalize the person who violated Shabbat and never allow him to eat the food. Others may eat the food after Shabbat. R. Meir says that even the one who violated may eat the food after Shabbat, and a minority of Rishonim accept his opinion (see Beit Yosef and G’ra, ad loc.).
It, therefore, would seem like an open and shut case that one can drink milk that was milked by others, as it is forbidden only for he who violated Shabbat. The question is whether the people, on whose behalf the work was done, is considered like the violator himself or like someone else. The Magen Avraham compares this to the case where one takes a forbidden food and purposely mixes it up in such a way that the forbidden food should be batel (nullified). The Shulchan Aruch rules (Yoreh Deah 99:5) in that case that the mixture is forbidden even for the person upon whose behalf the act was done. Thus, it would have seemed that the milking, which was done in order to sell to consumers, would be forbidden for them. However, the Magen Avraham continues that the Beit Yosef explains that the case of mixing in the forbidden food is particularly strict, because we need to fear that the perpetrator will not take the matter seriously. The Magen Avraham reasons that, regarding actually violating Shabbat, one cannot make that claim. Almost all later Acharonim understand the conclusion of the Magen Avraham and the halacha as permitting the food to the intended recipients of the melacha.
However, the K’tav Sofer (son of the Chatam Sofer) complicated the matter a bit. He explains (OC 50) that while the Shabbat violator may sell the food, that is because he already is penalized for his violation by virtue of the fact that he cannot eat the food himself. However, in a case where someone regularly cooks on Shabbat in order to sell the food to customers, the penalty will not be felt if he can continue to do so. It, therefore, becomes forbidden for him to sell. If it is forbidden for him to sell, then it is forbidden to buy from him because of the requirement not to facilitate or even aid and abet one who is doing a sin, in this case the sale.
It is not at all clear that we accept the K’tav Sofer’s ruling, but in any case, the matter does not seem applicable to our case. After all, we do not buy the milk from the dairy farmers but from a grocery, who bought from a distributor, who bought the milk. Therefore, it is too indirect for the consumer to need to be concerned about lifnei iver (facilitating a sin).
In practice, it is often a non-Jew who does the actual milking. This is, paradoxically, a stricter situation in some ways. When a non-Jew does melacha on Shabbat on behalf of a Jew, one has to wait after Shabbat the additional amount of time it takes to do the necessary work (bichdei sheya’su- see Beitza 24b). However, in practice, the necessary amount of time always elapses before the consumer has a chance to drink his milk.
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