Amirah LeNochri - Part Three by Rabbi Chaim Jachter
This week we shall continue to discuss the circumstances in which we are permitted to ask a non-Jew to perform Melachah for us on Shabbat. We will discuss the situations of Choleh (a sick individual), Tzaar Baalei Chaim (alleviating the suffering of animals), Pesik Reisha (which we will define later), and Remizah (hinting).
Choleh – A Sick Person
We mentioned last week that the Gemara in Shabbat 129a states one may ask a non-Jew to do Melachah on behalf of a sick individual even if the latter is not dangerously ill (provided that he is confined to bed or cannot function normally). The Rama (Orach Chaim 276:1) writes that this rule applies to all Ketanim (children), as the Halacha accords even healthy children the status of a Choleh. The Mishnah Berurah (276:6) limits this rule to a situation where there is considerable need for Melachah to be done on behalf of a child.
Dr. Abraham S. Abraham (Nishmat Avraham 328:54) cites quite a range of opinions among twentieth-century authorities regarding up to what age is a child defined as a Choleh. Dayan Weisz (Teshuvot Minchat Yitzchak 1:78) seeks to demonstrate that a child up to age nine is defined as a Choleh. Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 8:15:12:7) disagrees with Dayan Weisz’s proof and suggests that a child has the status of a Choleh only until age six. Rav Shlomo Zalman Auerbach (in an oral communication to Dr. Abraham) rules that a child is regarded as a Choleh only until age two or three. Dr. Abraham suggests that this question may depend on the relative strength of the individual child, which can vary greatly. One should consult his Rav for guidance regarding this issue.
Air Conditioning and Heating
The Shulchan Aruch (O.C. 276:5) rules that in “cold lands” one may ask a non-Jew to light a fire if the house is exceedingly cold (and, if there are children present, even if it is “merely cold” and not exceedingly cold). The Shulchan Aruch asserts that the basis for this ruling is that “Hakol Cholim Eitzel Tzinah,” everyone has the status of a Choleh (or potential Choleh) regarding the cold. Rav Moshe Feinstein (Igrot Moshe 3:24) applies this rule to a situation where an air conditioner was left on for Shabbat and the weather turned very cold. In such a case, Rav Moshe permits asking a non-Jew to turn off the air conditioner.
Interestingly, Dayan Weisz (Minchat Yitzchak 3:23) rules that it is permissible to ask a non-Jew to turn on an air conditioner on an exceedingly hot day. He considers a concept parallel to that mentioned by the Shulchan Aruch, namely “Hakol Cholim Eitzel Chom,” that everyone is considered a Choleh (or potential Choleh) in a situation of extreme heat. In his lenient ruling, Dayan Weisz primarily utilizes Rav Shlomo Zalman Auerbach’s opinion (Teshuvot Minchat Shlomo 1:9) that completing a circuit is not a Torah prohibition if no filament is thereby heated until it glows. He permits asking a non-Jew to turn on the air conditioner since only a rabbinic prohibition is involved, and the Shulchan Aruch rules (as we discussed last week) that one may ask a non-Jew to perform an act that is rabinically prohibited in case of considerable suffering. Rav Mendel Silber (Teshuvot Moznei Tzedek 2:16), who serves as the Av Beit Din of the Satmar Beit Din in Brooklyn, adds that one may certainly be lenient if the reason for turning on the air conditioner is LeTzorech Mitzvah – if one is unable to study Torah or Daven in a place that is extremely hot. Shemirat Shabbat KeHilchatah (13:34) codifies Dayan Weisz’ ruling and cites no dissenting opinion (see, however, Teshuvot Igrot Moshe Yoreh Deah 3:47:2). Rav Silber emphasizes, though, that one may be lenient only if one is very uncomfortable because of the heat.
Tzaar Baalei Chaim
The Shulchan Aruch (O.C. 503:02) rules that one may ask a non-Jew to milk an animal on Shabbat to alleviate the suffering of the animal. (The issue of milking an animal on Shabbat is particularly relevant in Israel, and is discussed extensively in Gray Matter 1 pp. 200-214.) The source of this ruling is the Rosh (Shabbat 18:3) citing the Maharam of Rothenberg. Its basis is a Talmudic passage (Shabbat 128b) that records that one may take non-Muktzah items such as pillows to support an animal that has fallen into a water ditch. This is permitted despite the fact that he renders the pillow “Muktzah,” thereby violating the rabbinic prohibition of Mevatel Kli MeiHachino (causing a vessel which is not Muktzah to become Muktzah). Rashi explains that this is rabbinically prohibited because it appears as if he is destroying the item (Soteir, destryoing, is one of the thirty-nine forbidden categories of Melachah), as he is rendering it useless as far as Shabbat is concerned.
The Maharam of Rothenberg deduces from this Gemara the following principle: since it is a Torah level obligation to alleviate the suffering of an animal, one may violate a rabbinic prohibition to alleviate the suffering of a living creature. Thus, one may violate the rabbinic prohibition of asking a non-Jew to do Melachah for us on Shabbat in order to aid a suffering animal. Therefore, one may ask a non-Jew to summon a non-Jewish veterinarian to help a suffering pet.
The background to the category of Pesik Reisha is discussed in several places in the Gemara. If one performs a permitted act which might cause a prohibited act to occur (the Talmudic example is one who drags a chair along a dirt floor, which may create a furrow), the action is permitted as long as he did not intend for the forbidden act to occur (Davar SheEino Mitkavein). However, is the secondary act will inevitably occur (Pesik Reisha), the primary act is forbidden despite the fact that he did not intend the forbidden action to occur. Thus, one may not open a refrigerator door on Shabbat in which the light bulb is activated, despite the fact that his intention is not to turn on the light bulb, since it will inevitably be lit as a result of his opening the door.
However, most authorities permit asking a non-Jew to do an act that is forbidden for Jews due to the Pesik Reisha principle (see Mishnah Berurah 277:15, Igrot Moshe O. C. 2:68, and Shemirat Shabbat Kehilchatah 31:1 and footnote 1). Thus, one may ask a non-Jew to open a refrigerator door even though the light will go on. Similarly, one may ask a non-Jew to turn on hot water even if it will inevitably cause the boiler to heat more water. Rav Mordechai Willig (Beit Yitzchak 22:90-91) offers an explanation for this ruling. As we mentioned two weeks ago, the prohibition of Amirah LeNochri is either because the non-Jew is viewed as acting as our Shaliach or because of the prohibition to even mention Melachah on Shabbat (VeDabeir Davar). Accordingly, when one asks a non-Jew to do an act that is permitted, the non-Jew is acting as one’s agent to do the permissible intended action and not the resultant forbidden act. Similarly, when one asks the non-Jew to perform the permissible act, he has still not spoken about the proscribed activity on Shabbat. See Rav Mordechai Willig’s essay for further elaboration on this issue and why in certain cases this should be done only if there is considerable need.
Remiza – Hinting
The Rama (O.C. 307:22) cites the Ohr Zarua (2:85) who rules that “it is forbidden to hint to a non-Jew on Shabbat to do anything that one may not ask a non-Jew in a straightforward manner to do on Shabbat.” The Ohr Zarua, as a source for his ruling, cites the Gemara in Shabbat 121a (which we mentioned last week) that only permits one to declare to a non-Jew, “Whoever extinguishes the fire will not lose financially.” This passage indicates that only in dire circumstances may one hint to a non-Jew to do work on Shabbat.
The Mishnah Berurah (307:76) notes that hinting is prohibited only when one hints in the form of a command. The example he gives is that one may not ask a non-Jew to “clean his nose” when the non-Jew understands that to mean, “Remove the carbon from the top of the candle” (so the candle will burn brighter). However, if one avoids hinting in a manner that uses the form of a command (Lashon Tzivui), he does not violate the Amirah LeNochri prohibition. For example, one may state to a non-Jew, “The candle is not emitting light properly,” or “I cannot read in this light.”
It is necessary to present a strong word of caution at this point. The aforementioned case is not one in which Amirah LeNochri is permissible. Rather, hinting in this manner merely avoids violation of the Amirah LeNochri prohibition. When Amirah LeNochri is permissible, one may benefit from the work done for a Jew by a non-Jew. When one may ask a non-Jew to do Melachah (such as for the needs of a Choleh), the prohibition to benefit from the non-Jew’s Melachah is also waived. However, even if one avoids the Amirah LeNochri prohibition, he still may not benefit from the Melachah done by a non-Jew on his behalf (see Shabbat 122a; Tosafot ad. loc. s.v. VeIm explains that Chazal prohibited benefiting from the non-Jew’s actions to discourage one from violating the prohibition of asking the non-Jew to perform Melachah). In the Mishnah Berurah’s example regarding the candle wax, one may benefit from the non-Jew’s fixing the candle because one could have read with difficulty despite the poor lighting. Similarly, if one tells a non-Jew, “It is quite difficult to sleep in a room with the light on,” and the non-Jew subsequently extinguishes the light, one may sleep in the room. One is not considered to have benefited from the non-Jew’s action as he has not created something to benefit from. He merely removes the light which then makes it possible to sleep more readily (see the aforementioned Tosafot for further explanation).
Rav Moshe Feinstein (Igrot Moshe Yoreh Deah 3:47:2) points out that if one says “It is very hot in the house” and a non-Jew then turns on the air conditioner, one may not benefit from the air conditioning. (Rav Moshe is presumably not addressing a situation which warrants straightforward Amirah LeNochri, as we discussed earlier.) Rav Moshe explains that this case is not comparable to the Mishnah Berurah’s case of being able to read without the non-Jew’s adjusting the candle, because one could have read from the candle before the non-Jew adjusted it on Shabbat. Thus, the same activity could have been performed even without the non-Jew’s intervention. However, if the air conditioner was off before the gentile intervened, one could not have benefited from the air conditioner before the non-Jew turned it on.
Nevertheless, one might add that if the air conditioner was on and functioning minimally and one commented to a non-Jew that “the air conditioner is not working properly,” and the non-Jew then fixes the air conditioner to provide maximum comfort, it might be permissible to benefit from the non-Jew’s action. Similarly, if it is somewhat cold in the room and someone comments to a non-Jew, “It is certainly cold in the room,” and the gentile turns off the air conditioner, one may benefit from the absence of air conditioning in the room. In essence, one is forbidden to benefit from a positive, new contribution made by a non-Jew on Shabbat, such as if the non-Jew cooked a specific item. On the other hand, there is no prohibition if the non-Jew has merely eliminated a negative phenomenon (such as if he extinguished a fire or an unwanted light).
The past three issues have served as an introduction to the topic of Amirah LeNochri. For further details, one may consult chapters thirty and thirty-one of Shemirat Shabbat KeHilchatah, Volume One of Rav Rabbiat’s work “The Thirty-Nine Melochos” (pp.63-89), and Rav Mordechai Willig’s essay in Beit Yitzchak (22:80-96).