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Parshat Beshalach          13 Shevat 5766             February 11, 2006             Vol.15 No.20


<<Part 1<<

Amirah LeNochri - Part Two
by Rabbi Chaim Jachter

Last week we explored the source, nature, and scope of the prohibition of Amirah LeNochri, asking a non-Jew to do forbidden labor on Shabbat. This week we will complete that discussion and those cases in which the rabbis permitted Amirah LeNochri.

Scope of Amirah LeNochri
The Gemara in Bava Metzia 90a asks if the restriction of Amirah LeNochri applies exclusively to Shabbat (as well as Yom Tov and Chol Hamoed, see Tosafot loc. cit. s.v. Aval Hacha) or to all Torah laws. The Gemara's conclusion is not clear. The Rosh (Bava Metzia 7:6) cites the Raavad who opines that since the Gemara is not conclusive regarding this issue, one may rule leniently, since the prohibition of Amirah LeNochri is Rabbinic in nature and we say “Safek DeRabbanan LeKula” (one may rule leniently in a case of doubt involving a Rabbinic obligation).
The Rosh, however, prefers the dominant view among the Rishonim that the Gemara should be understood as concluding that Amirah LeNochri applies to all Torah laws. The Rambam (Hilchot Issurei Biah 16:13) similarly rules strictly. Shulchan Aruch (Even Haezer 5:14) rules in accordance with the strict rulings of the Rambam and the Rosh. (For further discussion of the parameters of Amirah LeNochri regarding prohibitions other than Shabbat, see the Encyclopedia Talmudit 2:44-45). This question has specific relevance to the issue of asking a non-Jewish veterinarian to remove a pet's reproductive organs. A review of this question written by this author was published in the spring 1992 issue of The Journal of Halacha of Contemporary Society.

Talmudic Background – Five Sources
Shabbat 121a: The Gemara here tells us that in case of fire one may announce to non-Jews, “Whoever extinguishes the fire will not lose out.” This passage sets the tone for our discussion of the exceptions to the prohibition of Amirah LeNochri, namely that Chazal do not treat the restrictions regarding Amirah LeNochri lightly. Even in case of fire Chazal only permitted one to hint to a non-Jew to do Melachah on Shabbat.
Gittin 8b: In a celebrated passage, the Talmud permits asking a non-Jew to write a deed that certifies transfer of title of Israeli real estate from a non-Jew to a Jew. The Talmud explains, "Even though Amirah LeNochri is rabbinically prohibited, because of the importance of settling the Land of Israel, an exception was made." As we shall see later, most Rishonim understand this passage as exceptional. The Mitzvah of settling the Land of Israel is one of the very few Mitzvot for which we are permitted to ask a non-Jew to perform a Biblically prohibited act of Melachah. This demonstrates how vitally important Chazal regard the Mitzvah of moving to Israel and developing the Jewish presence there.
Shabbat 129a: The Talmud here states that a non-Jew may perform anything necessary for a Choleh (even if he is not dangerously ill) on Shabbat (see Shulchan Aruch Orach Chaim 328:17). A Choleh is someone sick enough to be confined to bed or who cannot function normally (such as one who has a severe migraine headache). It should be noted that a non-Jew may perform even Biblically proscribed activity on behalf of the Choleh (Mishnah Berurah 328:47).
Eruvin 67b: In Talmudic times, it was the practice to wash a baby’s body in hot water both before and after the Brit Milah (Shabbat 134b). The Gemara here addresses a situation in which the hot water to be used for a baby boy prior to his Brit spilled (they would not perform a Brit if he could not be washed before and after the Brit). The great Talmudic sage Rabbah instructed that a non-Jew should be asked to bring hot water from elsewhere despite the fact that carrying in that area involved violating a Rabbinic edict (no Eruv Chatzeirot was made). Most Rishonim agree with Rashi (s.v. DeIshtapeich) and Tosafot (s.v. VeHa) that this Talmudic passage is permitting Amirah LeNochri only in a situation of Brit Milah.
Eruvin 68a: The Gemara on the subsequent page describes a similar scenario in which the hot water necessary for a baby spilled. In this case, however, hot water was not available elsewhere. In this case, Rava ruled that if the baby's mother (a woman is regarded as a Choleh for thirty days subsequent to childbirth, Shabbat 129a) needed hot water, a non-Jew could be instructed to heat water for the mother, and some of this hot water could be used for the baby boy. Tosafot (s.v. Ee Tzricha and Gittin 8b s.v. Af Al Gav), supported by most Rishonim, explain that this passage is speaking only of hot water necessary for Brit Milah.

Rishonim – Four Views
Baal HaItur – the most lenient view: The Baal HaItur rules extraordinarily leniently on this issue. Viewing the case in Gittin 8b as the rule rather than the exception, the Baal HaItur permits asking a non-Jew to perform even a biblically proscribed act if it is done for the sake of a Mitzvah. My Talmid Jacob Morris pointed out to me that the Tosafot Rid to Gittin 8b seems to agree with the Baal HaItur, as he writes that the rabbis did not apply their prohibition of Amirah LeNochri in the case of a Mitzvah. The Tosafot Rid does not limit his statement to Yishuv Eretz Yisrael or Brit Milah.
Tosafot – the strictest view: Tosafot (Gittin 8b s.v. Af Al Gav), however, views the Gemara in Gittin 8b to be exceptional. Only for the sake of the Mitzvah of settling Eretz Yisrael may one ask a non-Jew to perform a Torah-level prohibition. Tosafot believe that one may not ask a non-Jew to perform even a rabbinically proscribed act even for the sake of a Mitzvah. Only for the sake of ancillary needs of Brit Milah (such as bringing hot water for the baby) does Tosafot permit asking a non-Jew to perform a rabbinically proscribed act. We should note that we see from the Tosafot the profound importance of the Mitzvah of settling and living in Eretz Yisrael.
Rav Yoel Bin Nun (in a Shiur delivered at TABC in 5763) suggested that Yishuv Eretz Yisrael might be exceptional because we find a precedent in the Chumash that this Mitzvah pushes aside another very important Mitzvah. In Bereishit Perek 23 we find that Sarah Imeinu’s burial was delayed while Avraham Avinu negotiated with Ephron to purchase the MeArat Hamachpeilah. Normally, it is very important to bury the deceased as quickly as possible (Devarim 21:23 and Shulchan Aruch Yoreh Deah 357). Rav Yoel argues that Avraham Avinu wished to purchase the MeArat Hamachpeilah and bury Sarah Imeinu there in order to establish a permanent Jewish presence in Eretz Yisrael. According to this approach, Bereishit chapter 23 constitutes a precedent for Mitzvat Yishuv Eretz Yisrael enjoying priority over other very important Mitzvot.
Behag: Tosafot, however, cite the Behag who permits asking a non-Jew to do a Biblically proscribed act if it is necessary for the performance of a Brit Milah. The Behag apparently believes that the Mitzvah of Brit Milah is also exceptional because of its extraordinary importance. Indeed, the Gemara (Shabbat 132a) notes that the Torah stresses the importance of Brit Milah in the section that describes Hashem’s command to Avraham Avinu to perform it (Bereishit Perek 17), where the word Brit is mentioned no less than thirteen times. Moreover, since Brit Milah itself overrides Shabbat according to Biblical law, Chazal followed suit and similarly permitted Amirah LeNochri for ancillary needs of Brit Milah (such as heating water for the baby).
Rambam – middle view: The Rambam (Hilchot Shabbat 6:9-11) adopts a middle approach to this issue. The Mitzvah of Yishuv Eretz Yisrael is the only Mitzvah for which one may ask a non-Jew to perform a Biblically proscribed act. However, the Rambam permits asking a non-Jew to perform a rabbinically prohibited act in any of the following three circumstances: 1) for the sake of a Mitzvah, 2) for the sake of someone who is Choleh Ketzat, somewhat ill, and 3) a case of Tzorech Harbei, serious need. For a possible limitation on the ruling of the Rambam, see Rav Hershel Schachter’s Eretz HaTzvi pp.50-52.

Shulchan Aruch and Acharonim
The Shulchan Aruch (O.C. 307:5) rules in accordance with the Rambam, though he does note the opinion of Tosafot as a secondary opinion. The Mishnah Berurah (307:23) cites the Levush and Eliyahu Rabbah who state that the Halacha follows the Rambam’s ruling, the primary opinion recorded in the Shulchan Aruch. The Mishnah Berurah (307:22), though, cites the Eliyahu Rabbah as severely limiting the third and somewhat vague category of the Rambam – Tzorech Harbei. Only in a case of great need that involves bodily pain does he permit following the Rambam, but not in a case of great need not involving much discomfort (see Shaar Hatziyun 307:24). See Rav Mordechai Willig (Beit Yitzchak 22:88) for an interesting explanation of the Eliyahu Rabbah's ruling.
The Rama (276:2; also see 307:5) notes the practice of many communities to rely on the Baal HaItur by asking non-Jews to turn on lights to enable partaking of Shabbat meals. The Rama, however, cautions that one should not rely on this lenient ruling unless it is a situation of great need. The Mishnah Berurah 276:24 cites the Shelah who rules that one should not rely on the Baal HaItur even in cases of great need. He tells of communities whose members ate Seudah Shelishit in the dark rather than relying on the Baal HaItur's leniency. Indeed Rav Yechezkel Landau (Teshuvot Noda BeYehuda I:33) rules that great effort should be expended to avoid relying on this leniency.
The Noda Biyehuda strongly disapproved of the practice of many communities to ask a non-Jew to light candles in the synagogue for the Neila service on Yom Kippur. Rav Landau writes that in the communities where he served as the Rav, he stopped this practice. As an alternative, he urges that a non-Jew should be asked to carry the remaining lit candles to provide enough light to recite Ne’ilah. Moving lit candles is a rabbinic prohibition (moving a Muktzeh item), which the Shulchan Aruch permits asking a non-Jew to perform in case of considerable need. Only if spreading out the remaining candles is insufficient does Rav Landau permit a non-Jew to light candles for the sake of enabling the community to recite the Amida of Ne’ila. The Shaarei Teshuva (623:1) and the Mishnah Berurah (623:3) codify the ruling of Rav Landau as normative. Similarly, Rav Aharon Lichtenstein told me in the name of Rav Yosef Dov Soloveitchik that one should make every possible effort to avoid relying on the Baal HaItur's leniency. For an interesting explanation as to why asking a non-Jew to turn on an electric light may differ from the classic situation of asking a non-Jew to light a candle, see Rav Mordechai Willig, Beit Yitzchak 22:95.

Conclusion
Amirah LeNochri is a rabbinic restriction that has a number of exceptions. We should take care, however, not to abuse these exceptions and limit our reliance on them to situations of need. Next week we shall (IY”H and B”N) conclude our discussion of Amirah LeNochri.

 

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