R’
Akiva Eiger introduces a novel concept pertaining to the prohibition of Mekach
Umemkar. He proposes that it is not only the act of acquisition which is
prohibited rather the actual effect of the Kinyan is asur as
well. Therefore, writes Reb Akiva Eiger, one would be prohibited to make a Maaseh
Kinyan, an act of acquisition, even on Erev Shabbos with the
stipulation that the actual acquisition go into effect on Shabbos.[1]

The

achronim point out that this is different than all other melachos
which would be permitted in this matter, as long as there is no act being done
by the person on Shabbos. For example the mishna in Shabbos
states that it is permitted to turn on a lawn sprinkler  before Shabbos with the
intent of having the lawn watered on Shabbos. [2]Indeed many achronim argue on R’ Akiva Eiger based on this Mishnah.[3]

In
the early 1900’s with the advent of the vending machines, the obvious question was
posed to the leading Poskim of the time. Was one allowed to keep his
vending machine open on Shabbos in order to generate sales to non-Jews?
Was this indeed included in the issur of mekach u’memkar?
The

Givas Halevona[4]and others prohibited it based on the above-mentioned ruling of R’ Akiva Eiger.
In their view, merely being a party in a sale, even when all the arrangements
were done prior to Shabbos, was included in the issur of mekach
umemkar.

However,
the Maharshag[5]and others permitted its use. They argued that R’ Akiva Eiger’s ruling only
prohibited a sale on Shabbos when it was specifically arranged for the
sale to take place on Shabbos. In the case of vending machines however,
the Jew arranges the item to be ready for sale at any time and it is rather the
non-Jew who directs  the sale to go into
effect specifically on Shabbos. In addition, they quote some achronim

who do not agree with R’ Akiva Eiger’s view  altogether. The general custom today, seems to
be to rely on the Maharshag‘s ruling and allow vending machines to
operate on Shabbos.[6]

The
Maharshag‘s decision, can be applied to a website as well. Therefore,
keeping a website open on Shabbos, to allow non-Jews to make purchases
then, would similarly be permitted.
 
ON-LINE AUCTIONS

When
dealing with the average on-line auction, the above considerations would also
be true. Therefore, when maintaining an active marketplace listing (such as
E-bay or Amazon) through Shabbos one may rely on the Maharshag‘s
leniency.

However,
there are a number of considerations to take into account when dealing with
more sophisticated auctions. For example, when keeping an auction listing
running that will have an “end on Shabbos” feature, may not be included in the

Maharshag‘s heter, since the sale is being scheduled specifically
for Shabbos.[7] This
is especially true when it is listed as “immediate payment required”.

Concerning
one who places a bid to purchase a listing which will end on Shabbos,
it is questionable if this could be considered “scheduling a purchase for Shabbos”
as there is no way to determine at the time of his bid if he will be the
winner.

There
is an additional
reason to permit e-commerce on Shabbos, based on the following
introduction:

The

issur of Mekach U’memkar has two parts to it; the payment from
the buyer to the seller, and the buyer gaining ownership of the item.[8]As with regard to the latter part, when someone “buys” an item through a website,
he does not actually take ownership of the item until it is physically
delivered to him. Hence, he is not actually buying anything on Shabbos at the
time of his winning bid, but rather just entering into an agreement/contract to
buy the item in the future, and at the time of payment he is, in fact,
pre-paying for the item. This is evident from the fact that if the seller’s warehouse
were to burn down before shipping the item, he would have to refund the
payment. If he would turn to the buyer and claim, “Sorry your item is
lost, but thank you for your business” his name would get blacklisted and he
can expect a lawsuit.  He would be
expected to refund the buyer’s money due to the fact that the sale was never considered
to have been completed. [9]

That
being said, even though it is assur to enter into a contract on Shabbos
and Yom Tov, that is presumably not a part of the gezairas mekach
umemkar[10]but rather a separate issur of mimtzo chefzecha which would not
be subject to R’ Akiva Eiger’s stringency prohibiting the pre-arranging of an
acquisition even before Shabbos.

As
with regard to the first half of Mekach U’memkar, the payment from the
buyer to the seller, even if the merchant were to automatically have the credit
card payments processed immediately and prior the shipping of the item, (which
is rarely the case), the actual payment would virtually never take place on Shabbos

or Yom Tov. This is because the actual request for payment generally
does not take place until the batching process, usually at the end of the day. At that point, the request goes through
the credit card network and the automated clearinghouse to the buyer’s credit
card bank. The payment then goes through the ACH and the Federal Reserve
Settlement Service, to the merchants account. All this takes an additional
24-72 hours. In fact, any payment received on Yom Tov would in all  likelihood represent proceeds from a sale prior to Yom Tov.

This
heter however, may not apply to all e-commerce sales. For example, when
selling software downloads or coupons which are automatically sent to the buyer
via e-mail, the actual sale takes place immediately on Shabbos.[11]  Additionally, receiving a payment
via Pay Pal or other similar payment services may at times take place  immediately.[12]These situations however would still have the general heter concerning
vending machines.

MARIS AYIN

Another
issue to address is the concept of Maris Ayin,  That is, if a web store known to be Jewish-owned
were to be open throughout Yom Tov, people might assume that there are
workers packing orders and answering e-mails throughout Yom Tov. To avoid this problem, one should
place a notice on his website/listings stating that he will not be processing
any orders or answering any e-mails until after Yom Tov. In any case, this
would be a wise practice to avoid irate customers!

It
is worthy to keep in mind though, that the Gedolim throughout the
generations have always placed extreme importance on safeguarding the “Kedushas
Shabbos“. As an example, the Chelkas Yaakov was consulted regarding a

heter for a store in partnership with a non-jew to remain open on Shabbos.
The Chelkas Yaakov responded that (loosely translated) “Even if it were
a bona fide partnership and there would be no
halachic concerns, I would still object, as in these countries where Kedushas
Shabbos is lax, any heter will cause a further Zilzul Shabbos. A small heter may enlarge and
eventually all stores will be open on Shabbos and the concept of Shabboswill be forgotten for this generation and the ones to follow”. One could
argue that this would apply to a website as well. 

As
the world of commerce continues to evolve, along with technological growth and
consumer demands, comes the responsibility of the Shomer Shabbos merchant to familiarize
himself with the core halachic issues involved. This will enable him to
be aware of any shailos that may arise and to properly present them to a
competent Halachic authority.