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Parshat Bo          6 Shevat 5766             February 4, 2006             Vol.15 No.19


Amirah LeNochri - Part One
by Rabbi Chaim Jachter

This week we will begin to discuss an important issue, the question of Amirah LeNochri - in what cases we are forbidden to ask a non-Jew to do forbidden labor for us on Shabbat or Yom Tov, and in what cases we are permitted to ask? We will begin by discussing the source of this rule, its nature, and its scope. Interestingly, this issue is not as relevant as it was in generations past. This positive change is the result of the introduction of thermostats, timers, and other technologies that have, Baruch Hashem, have greatly reduced the need to rely on a non-Jew to do work on our behalf on Shabbat.

Source of Amirah LeNochri – Torah or Rabbinic Prohibition?
All agree that one is Biblically forbidden to ask his Canaanite slave to do Melacha (forbidden labor) for him on Shabbat. This prohibition is stated unambiguously in the Aseret Hadibrot (Shemot 20:10). The prohibition concerning all other non-Jews is subject to a dispute. A minority view, presented in the Mechilta to Shemot 12:16, believes that it is a Torah prohibition for one to request any non-Jew to do Melacha for the former's benefit. This view emerges from the fact that the prohibition of engaging in Melacha on the Yom Tov of Pesach is articulated in the passive voice (“Kol Melacha Lo Yeiaseh Vahem”), indicating that no work may be done for a Jew on Yom Tov, even that which is done on his behalf by a non-Jew.
The dominant view, however, is that it is a Rabbinic-level prohibition to ask a non-Jew to engage in Melacha on Shabbat or Yom Tov. The Babylonian Talmud refers to this prohibition as a Rabbinically forbidden activity – Amirah LeNochri Shevut (see Shabbat 150a and Bava Metzia 90a). Thus, it is not surprising to see the Rambam (Hilchot Shabbat 6:1) articulate the accepted view that Amirah LeNochri is a Rabbinic-level prohibition. We regard the Talmud Bavli as our authoritative text (see the Rambam’s introduction to the Mishneh Torah), and texts such as the Mechilta are not followed when in conflict with the Talmud Bavli (also see the Rosh to Chullin 2:6). The Rambam writes that the Rabbis prohibited Amirah LeNochri "in order that the Shabbat not be taken lightly, which would lead to a Jew performing Melacha himself."

The Nature of the Prohibition
Rashi presents two different approaches to define the nature of the prohibition of Amirah LeNochri. He indicates (Shabbat 153a s.v. Mai Ta’ama) that a non-Jew who performs Melacha on behalf of a Jew on Shabbat is considered the Jew's Shaliach (agent). Since the Halacha asserts that “Shelucho Shel Adam Kemoto”- the agent is considered as if he were the individual who appointed him as the agent (Kiddushin 41)- the forbidden act of labor performed by the non-Jew is related to the Jew who asked him to do the Melacha.
Even though ordinarily we say that “Ein Shelichut LeNochri,” the rules of agency do not apply to non-Jews (Bava Metzia 71b), Rashi nevertheless apparently believes that on a Rabbinic level we say “Yeish Shelichut LeNochri LeChumrah,” the rules of agency apply to a non-Jew when the ramifications are strict (i.e. he is considered to be an agent only to one's detriment, but not to one’s benefit). Rashi presents a similar approach regarding the laws of Ribbit (prohibition of charging interest) in a celebrated comment to Bava Metzia 71b (s.v. Bishlama Seifa; see also the Hagahot Maimoniot Hilchot Shabbat 6:2 who explicitly articulates the idea of Yeish Shelichut LeNchri LeChumrah in this context.)
Rashi in Avoda Zara 15a (s.v. Keivan DeZavna) presents a different approach to the nature of the prohibition of Amirah LeNochri. He teaches that the prohibition is because of the restriction of VeDabeir Davar (based on the verse in Yeshayahu 58:13), “Shelo Yehei Diburcha BeShabbat KeDiburcha BeChol,” that one's conversations on Shabbat should differ from his weekday conversations. Just as one may not perform the Melacha on Shabbat, he is forbidden to speak about the Melacha. Thus, VeDabeir Davar forbids Amirah LeNochri, since when one asks a Nochri to perform a Melacha, he actually speaks about the Melacha.
A specific ramification that emerges from these different approaches might be the two conflicting opinions cited by the Mishna Berura 307:24, regarding whether Amirah LeAmirah LeNochri- asking one non-Jew to ask another non-Jew to do Melacha- is forbidden. Although the reason of VeDabeir Davar would apply since he speaks about Melacha, the reason of Shelichut does not apply. This is because “Mili Lo Mimseran LeShliach”, agency applies only when one appoints the agent to perform an action (such as marriage or divorce), but not when one is asked merely to appoint a second agent.
The Mishna Berura concludes his discussion of this issue by citing the Sefer HaChaim, who rules that in cases of serious monetary loss one may rely on the lenient view of the Chavot Yair who permits Amirah LeAmirah. He cautions, however, that all agree that in such a case a Jew may not benefit on Shabbat itself from the work performed by the non-Jew. We will discuss, in a subsequent issue, the prohibition of benefiting from work performed by a Nochri on behalf of a Jew on Shabbat.
It should be noted, however, that Rav Yosef Adler reports that Rav Yosef Dov Soloveitchik did not subscribe to this leniency and did not see any validity in this approach to permit Amirah LeAmirah LeNochri. (For further discussion of the Chavot Yair’s ruling, see Rav Hershel Schachter’s B’ikvei Hatzon p. 52.) In addition, Rav Schachter rules (ad. loc. p.57) that one should not rely upon the ruling of the Chavot Yair or even of the Chatam Sofer that we will cite in the next paragraph. Rav Schachter rules that it is forbidden to pay for an ad in a newspaper owned by non-Jews that will appear in the Saturday edition of the paper, since in effect one is instructing a non-Jew to print his ad when the paper will be printed on Friday night. Rav Schachter does not regard the facts that the Jew placed the order before Shabbat and that the Jew did not actually instruct the non-Jews who will print the paper as sufficient to warrant a leniency.
There is possibly more room to be lenient regarding asking a non-Jew prior to Shabbat to ask a second non-Jew to do Melacha on Shabbat. Although Amirah LeNochri is forbidden even when the Jew speaks to the non-Jew prior to Shabbat (Shulchan Aruch Orach Chaim 307:2), this is because of the problem of Shelichut. When the non-Jew does the Melacha he acts as the Jew's Shaliach. However, when one asks one non-Jew to ask a second non-Jew to do Melacha on Shabbat, the problem of Shelichut is avoided. Moreover, the issue of VeDabeir Davar is not relevant when the request to do Melacha takes places prior to Shabbat. Thus, the Chatam Sofer (Teshuvot O.C. 60) permits asking a non-Jew prior to Shabbat to ask a second non-Jew to do Melacha on Shabbat.
This ruling might be relevant in a workplace situation where on Friday one must ask a delivery company to deliver a package on Saturday. The Biur Halacha (307:2 s.v. VeAfilu) appears to reject relying on this Teshuva of the Chatam Sofer, since there is a Teshuva from the Rashba that the Biur Halacha believes contradicts the Chatam Sofer’s approach (The Rashba carries more clout than the Chatam Sofer because the Rashba was a Rishon whereas the Chatam Sofer was an Acharon.) On the other hand, the Mishna Berura (307:24) seems inclined to rely on the Chavot Yair in case of great need.
I would suggest a compromise to resolve the apparent contradiction between the Mishna Berura’s ruling that one may rely on the Chavot Yair in case of a serious financial loss and the Biur Halacha’s seeming rejection of the Chatam Sofer. Perhaps in the Mishna Berura the Chafetz Chaim does not permit relying on the Chavot Yair except for cases of serious financial need. In the Biur Halacha, however, it seems that the Chafetz Chaim expresses great reservations about the Chatam Sofer’s approach, but does not rule out relying on the Chatam Sofer (or the Chavot Yair) in case of great need, such as a serious financial loss. However, Rav Soloveitchik and Rav Schachter seem to reject relying on the Chavot Yair’s leniency even in case of great need. Accordingly, one should consult his Rav for a ruling regarding this matter.

Conclusion
The prohibition of Amirah LeNochri is observed differently in the age of technology than it was in the earlier generations. While many of our grandparents and great grandparents found it necessary to rely on lenient options regarding this matter, we have much less reason to do so. Next week, IY”H and B”N, we will explore the situations in which Halacha permits Amirah LeNochri.

 

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