Parshas Nitzavim Vayeilech


SPECIAL EDITION:
 
Commerce on Shabbos & Yom Tov

Parshas Nitzavim Vayeilech:
 
Business on Shabbos & Yom Tov: Part I
 

By: Rabbi Baruch Meir Levin Shlit”a 

 


As the Yom Tov season draws closer, many business owners are faced with Halachic considerations they may not need to deal with throughout the year. Businesses which are typically closed over the weekend can face new questions when an extended Yom Tov season, which includes Shabbos, Yom Tov and Chol Hamo’ed, approaches. Bais HaVaad presents a three-part series which will give a clear overview to include many of the considerations which are involved in this area of Halacha.
 
BUSINESS ON SHABBOS & YOM TOV PART I:
A HALACHA SERIES OF THE BAIS HAVAAD

GENERAL GUIDELINES:


  
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Just as one may not do melachah
on Shabbos, one is also prohibited by Chazal from having a
gentile do melachah on his behalf.[1]This prohibition is referred to in Halacha as Amira L’Akum, lit. Speaking
to (or directing) a non-Jew. Rambam explains, that the reason for this
is, because Chazal feared that doing so would lessen the gravity of
working on Shabbos in one’s eyes and  may eventually lead the Jew himself, to actually
perform work on Shabbos, r”l. Rashi and others explain this prohibition
with the concept of shlichus. That is, when one requests a gentile to do
a melachah on his behalf, it is as if he himself is doing the melachah [2].
This prohibition applies not only to Shabbos but to anytime one is
prohibited from doing melachah, such as Yom Tov, Chol Hamoed, and
during Aveilus r”l.

Furthermore, as an added
safeguard to this prohibition, Chazal prohibited one from directly benefiting from a gentile’s work,  which
was performed on Shabbos and Yom Tov on his behalf. This added
prohibition may apply even when Amirah L’akum was not violated.

There are however, many
permitted forms of Amira L’Akum which primarily  depend on the type of arrangement between the
employer and the worker as well as the manner of the work performed as will be
explained herein.

Schirus & Kablanus

Workers generally are
of two halachic
classifications; (1) schir yom, one who is paid by the hour, such
as an office worker, or (2) a kablan, one who is paid by the actual job,
akin to a contractor, such as a plumber or a dry cleaners.

Since a kablan has
a direct interest in the outcome of the work (as his wages depend on it) and he
generally has the ability to determine when to do the job, Chazal considers any melachah

that he performs on behalf of a Jew to be “his own doing”. It is therefore,
permitted to hire a gentile to do melachah as a kablan even when
it is certain that the work will be done on Shabbos, provided that there
is no stipulation that it be done on Shabbos.

A schir yom however
is always considered to be  working on
his employer’s behalf since he gets paid “by the hour”. It is therefore
prohibited to have such an employee do any melachah on Shabbos as
part of their work, even when there was no stipulation that the work
specifically be done on Shabbos.[3]

As mentioned before,
the defining quality of a kablan is the fact that he is getting paid for
his accomplishment and not his time and effort. Therefore, even if the fee structure
for the job is based on the length of time of the job it would still be
considered kablanus. This is as long as the payment is contingent upon
the outcome of the job. For example a lawyer who bills his private clients at a
rate of $300 an hour or an order fulfillment center
that charges $35 an hour for assembly would be considered kablanim even
though they bill at an hourly rate.[4]

An important note: One
need only be concerned with the arrangement of the gentile he hires and not
that of any workers that the gentile subsequently hires. Therefore, one may
hire a fulfillment center in the form of kablanus even though the
center, in turn, will hire workers as schirai yom to do the actual
fulfillment.[5]

Kovea Melachto
BeShabbos

An integral component
of the permissibility of having a kablan perform melachah on Shabbos
is based on the fact that the actual scheduling is done by the worker. The
fact that the work is done on Shabbos is the worker’s decision and is his
own personal preference. Therefore, even when hiring a kablan one may
not be kovea melachto beshabbos – request that the melacha be
done on Shabbos. Furthermore,
one may not even mention that it is important for him that the melachabe done on Shabbos even if not stipulated as a contingency of employment.[6]

Similarly, if it is  not reasonably possible to complete the job without
working on Shabbos, it would be considered being kovea melachto
beshabbos
. For example, one may not hire a gentile a few hours before Shabbos

to transport a package from N.Y. to L.A. by Shabbos
morning.[7]However, when a job is reasonably possible to do without working on Shabbos,
even though it would be unpractical and in fact is never done in such a manner,
it would still be permitted. For example one may hire a gentile to deliver a
package to the opposite end of town specifically on Shabbos (in a city
that has an Eiruv). This is due to the fact that the gentile can
technically deliver it by foot and need not do an actual melacha.[8]There is a question
amongst the Poskim as to what the exact parameters of “reasonably
possible” are. As such, a halachic authority should be consulted
regarding each specific case.[9]

One may set up a
situation where it would be beneficial for the gentile to do a melachah

on Shabbos without actually requesting it. For example, one may arrange
with a gentile that he will be paid two dollars for every phone call that he
answers on his behalf (throughout the entire week). Since the gentile was not
requested of and did not accept responsibility to do any work on Shabbos,
it would not be considered kovea melachto beshabbos even though the
gentile will be motivated to answer the calls that come in on Shabbos as
well. If however, the gentile gives his word that he will indeed answer
the calls on Shabbos it would be prohibited.[10]

It is important to note
that the prohibition of kovea melachto beshabbos generally applies even where
the gentile is working on his own product, as long as he is doing it for the
Jew. For example, one may not place an order with a manufacturing company to
buy a custom product after Yom Tov if the company will have to work on Yom
Tov
in order to fulfill the order.[11]

Maris Ayin

Even when one hires a kablan
in a permitted fashion, Chazal were still concerned with maris ayin,
the appearance of wrong doing. That is, that onlookers  may mistakenly assume that the worker is a schir
yom
which would in fact be assur.[12]Therefore, one may not hire a gentile contractor, who will do melachah on
Shabbos in an area where Jews pass by and it is public knowledge that
the work is being done on behalf of a Jew,[13]One must even protest when he sees the work being done on Shabbos even
if he did not order it to be done on that day. However, if he is unsure of
whether the work will be done on Shabbos, he may hire him.[14]

If the nature of the
work is such that it is usually done in the form of kablanus, then there would be no concern that
people would mistakenly assume him for a schir yom and it would be thus
permitted.[15]

All of the above applies
to work that is not being done on real property. However with regard to real
property, there is increased concern of maris ayin. Therefore, even if
the type of work is such that is usually done as kablanus,[16]and even if it is in an area where Jews only occasionally pass by,[17]and furthermore, even if it is not public knowledge that the property belongs
to a Jew,[18]it would still be prohibited. For example, one may not let a gentile clean the
gutters of his apartment building in Manhattan on Shabbos. However in an
area where observant Jews[19]do not live, [20]it
would then be permitted.[21]

In conclusion, and as a
general guideline, one may have a gentile do work for him on Shabbos and

Yom Tov provided that, A) the
worker is a kablan, B) he was not requested to do the melachahspecifically on Shabbos and, C) there is no maris ayin.

Possible Leniencies

In certain instances
where financial losses are at stake, one may be lenient with regard to amirah
l’akum. The following are some of the more commonly applicable heterim.

A) When the work
that the gentile performs is of rabbinic prohibition, and failure to do the
work would result in significant financial loss, it may be permitted to have
the work done even by a schir yom. Additionally, one would not need to
be concerned with maris ayin. This is known as the heter of “shvus
d’shvus
“. [22]

B) When the work
being done is of biblical prohibition, Chazal feared that out of fear of
the pending significant financial loss one may be tempted to do the actual work
himself. They therefore permitted one to hire a kablan (but not a schir
yom)
and even be kovea melachto beshabbos in such an instance.[23][24]This heter would apply even when there is a concern of maris ayin.[25]

C)

Some poskim
rule that in certain instances requesting one gentile to tell another gentile
to do melacha on Shabbos does not fall under the prohibition of amira
l’akum
. In a situation of significant financial loss one may rely on this
opinion.[26]This is known as “amirah l’amirah“. However, if there would be a concern
of maris ayin then this heter would not apply.[27]

It is important to note that these heterim

have many limitations. Additionally, the scope of a “significant financial
loss” does not have clear parameters and may depend on the financial status of
the person involved. Also, one must differentiate between a potential
loss and a missed opportunity for financial gain which in some instances may
have different parameters and may not be considered as losses in this regard.[28]Therefore a rov should be consulted before applying any of the
above-mentioned heterim.

In addition, as a general rule, it may be possible
to attain the same objective by restructuring an employment agreement or
entering into a partnership with a gentile. even where there may not be any
applicable heterim, Again, a rov should be consulted.

In the next issue we
will discuss how these halachos apply to various business scenarios.


ABOUT THE AUTHOR

Rabbi Baruch Meir Levine Shlit”a is a member of the Bais Hava’ad L’Inyonei Mishpat and part
of the
Bais HaVa’ad Shabbos division. The Bais HaVaad will be available
through the
Yom Tov season to assist with Halachic concerns regarding Shabbos

and Yom Tov as well as with other Halachic issues. To contact the Bais HaVa’ad for
a
Choshen Mishpat consultation or for other Halachic questions or services please
call 1.888.485.VAAD (8223) or email
info@BaisHaVaad.com.


FOOTNOTES

[1]Shabbos 121, A

[2]It should be noted that when one requests on Shabbos for a gentile to do
melacha for him, even if to  be
performed on the weekday, regardless of whether or not it is prohibited under Amira
L’akum
,  he  transgresses the prohibition of “Daber davar“, which is a general rabbinic
prohibition of discussing melacha related activities on Shabbos.
This article however focuses on business related Amira L’akum, and is
written with the assumption that any requests are made during the weekday.

[3]S. A. Harav  243, 4 and in K .A.
1 see also Igros
Moshe
4, 52.

[4]Harav Shlomo Miller Shlita. In spite of the fact that the level of
accomplishment that payment is contingent upon is limited. For although if the
lawyer were to gather information for a case based upon his analysis of what is
needed, and it subsequently  turns out
that the information is not useful, the client may still be expected to pay.
There is however, some level of accomplishment that is expected. For example,
if after gathering the information the lawyer loses it even by total accident, the
client would presumably not be expected to pay. This is in contrast to a schir
yom such as a cleaning lady who if after spending time sweeping  the floor, subsequently spills the dirt back
on the floor by accident would still be entitled to payment.

[5]See end of Biur Halacha, 244

[6]M.B. 307, 15 based on Taz 307

[7]M.B. 307, 15.

[8]See O.C. 276, 3

[9]For example, Igros Moshe  O. C.
4, 54, rules that if the only way the gentile could avoid working on Shabbos
is to work on Sunday (during which he usually doesn’t work) it would be
permitted. Other poskim argue on this and prohibit this

[10]Harav Shlomo Miller Shlit”a. see also M.B. 245, 15 and S. A.
Harav  252, 5 (near end).

[11]S.A. Harav  252, 9. See however, Tehila
Ledovid
who questions this.

[12]Alternatively they may assume that the kablan was instructed to do the
work on Shabbos. This concern however, is only when the work is being
done in the Jews house, (M.B. 252, 17) and not in his office.  Additionally, if the nature of the work is
such that the employer does not usually request for it to be done at a specific
time (such as a swimming pool maintenance service) this concern would not
apply. (The Sanctity of Shabbos, by Rabbi S. B. Cohen Shlit”a in
the name of R’ Moshe Feinstien ZT”L.).

[13] One need not be concerned with maris ayin when
only a few people know that the work is being done on behalf of a jew. M.B. 244,
4

[14]Pri Megadim 252, 3

[15]M.B. 252, 17 However if the work is being done in the Jews house, it
would still be subject the additional concern discussed in footnote 12.

[16]Biur Halacha  244. See also

Igros Moshe O.C. 3, 35.

[17]Rema 244, 1 and Shar hatzion 8.

[18]See M.B. 244, 18 who explains that we are still concerned with any
neighbors or family members that may know that the employer is a Jew. In Shaar
Hatzion
, he quotes others as understanding this as a “Lo plu’ug“.

[19]One need not be concerned with the appearance of wrongdoing to non observant
jews in this regard. Harav Shmuel  Felder
Shlit”a.

[20]Within the Tchum.

[21]O.C. 244, 1.

[22]Mishna Berura  307, 22 based on Magen Avrohom 7.  Elya Rabba however disagrees with this
heter. See Igros Moshe  O.C. 2, 65 where he seems to rule leniently.

[23]Mishna Berura  244, 32. This is known as the heter of “meches
lit. “Tax”, as the heter was originally given to enable tax
collection on Shabbos.

[24] It is
questionable however; if in a situation where there is no risk that the Jew
would do the work himself, this heter would still apply. For example the
work is being done at a distant location or is of such that the Jew is not
qualified to do by himself. See Igros Moshe O.C. 4, 53 where he seems to
be lenient on this point. He also seems to rule that one may initially open a
business with the intention of relying on this heter. 

[25] Mishna
Berur
a  244, 32.

[26] Mishna
Berura
 307,24
and Chasam
Sofer
 C.M. 185.

[27] See Chasam
Sofer
 O.C. 60

[28] See Igros
Moshe  
O.C. 4, 53

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