This week we will begin to discuss an important issue, the question of Amira L'nochri - when are we forbidden or permitted to ask a non-Jew to do forbidden labor for us on Shabbat and Yom Tov. We will begin by discussing the source of this rule, the nature of this rule and the scope of this rule. Interestingly, this issue is not as relevant as it was in generations past. This positive phenomenon is the result of the introduction of timers and other technology which have greatly reduced the need to rely on a non-Jew to do work on our behalf on Shabbat.
Source of Amira L'nochri - Torah or Rabbinic Prohibition
All agree that one is Biblically forbidden to ask one's Canaanite slave, heathen slave, to do Melacha (forbidden labor) for him on Shabbat. This prohibited 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 on the former's behalf. This view points to the fact that the prohibition of engaging in Melacha on Shabbat is articulated in the 153‑ (passive) tense (,‑ /‑!,% ‑! *3:% "%.). This view believes that this prohibition embraces asking one's fellow Jew or even non-Jew to do Melacha for him, since one is obligated to refrain from having Melacha done on one's behalf on Shabbat or Yom Tov.
The dominant view, however, is that it is a Rabbinic level prohibition to engage a non-Jew in Melacha on Shabbat. The Babylonian Talmud refers to this prohibition as a Rabbinically forbidden activity - !/*9% ‑1,9* :"&; (see Shabbat 150a and Baba Metzia 90a). Thus, it is not surprising to see the Rambam (Hilchot Shabbat 6:1) articulate the accepted view that Amira L'nochri is a Rabbinic level prohibition. The Rambam writes that the Rabbis prohibited Amira L'nochri "in order that the Shabbat not be taken lightly which would lead to a Jew performing Melacha himself."
Nature of the Prohibition
Rashi presents two different approaches to define the nature of the prohibition of Amira L'nochri. Rashi (Shabbat 152a s.v. /!*) writes that a non-Jew who performs Melacha on your behalf on Shabbat is considered one's :‑*( (agent). Since the Halacha regards :‑&(& :‑ !$. ,/&;&, the agent acts as if he were the individual who appointed him as the agent, the forbidden act of labor performing by the non-Jew relates to the Jew who asked him to do the Melacha. Even though ordinarily we say !*0 :‑*(&; ‑1,9*, the rules of agency do not apply to non-Jews, Rashi nevertheless believes that on a Rabbinic level we say that *: :‑*(&; ‑3,&". ‑(&/9!, the rules of agency apply to a non-Jew when the ramifications are strict (i.e. he is considered to be an agent only to one's detriment, but not benefit). Rashi presents a similar approach regarding the laws of Ribbit (prohibition of charging interest) in a celebrated comment to Baba Metzia 71b (s.v. &!.).
Rashi in Avoda Zara 15a (s.v. ,*&0) presents a different approach to the nature of the prohibition of Amira L'nochri. He explains the prohibition is because of the restriction of &$"9 $"9 (based on the verse in Yeshayahu 58:13), that ‑! *%*% $"&9+ ":"; ,$"&9+ "(&‑, one's topics of conversation on Shabbat should differ from his weekday conversations. Thus, one who asks a non-Jew to do work for him on Shabbat speaks about Melacha. Just as one may not perform the Melacha, he is forbidden to speak about the Melacha.
A particular difference between these approaches might be the two conflicting opinions cited by the Mishna Berura 307:24, whether Amira L'amira L'nochri, asking one non-Jew to ask another non-Jew to do Melacha is forbidden. Although the reason of &$"9 $"9 would apply since he speaks about Melacha, the reason of Shelichut does not apply. This is because /*‑* ‑! /*/290 ‑:‑*(, agency applies only to when one appoints the agent to perform an action (such as marriage or divorce), but one is not considered as agent when one is asked merely to appoint a second agent. The Mishna Berura rules that although it is best to follow the strict opinion of the 3"&$; %#9:&1*, in case of serious monetary loss one may rely on the lenient view of the (&; *!*9 on this issue. This is especially so regarding asking a non-Jew prior to Shabbat to ask a non-Jew to do Melacha on Shabbat. Although Amira L'nochri 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 &$"9 $"9 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 issue is particularly relevant today if one must ask a delivery company on Friday to deliver a package on Saturday.
Scope of Amira L'nochri
The Gemara in Baba Metzia 90a asks if the restriction of Amira L'nochri applies exclusively to Shabbat (as well as Yom Tov and Chol Hamoed see Tosafot loc. cit. s.v. !"‑) or to all Torah laws. The Gemara's conclusion is not clear.
The Rosh (Baba 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 Amira L'nochri is Rabbinic in nature and we say 258 $9"10 ‑8&‑! (one may rule leniently in a case of doubt involving a Rabbinic obligation).
The Rosh, however, reflects the dominant view amongst the Rishonim, that the Gemara should be understood as concluding that Amira L'nochri applies to all Torah laws. The Rambam (Hilchot Issurei Biah 16:12) similarly rules strictly. Shulchan Aruch (Even Haezer 5:14) rules in accordance with the strict ruling of the Rambam and the Rosh.
This has particular relevance to the issue of asking a non-Jewish veterinarian to remove a pet's reproductive organs. A review of this important question written by this author is published in the spring 1992 issue of The Journal of Halacha of Contemporary Society.
Next week, God willing, we will explore the situations in which Halacha permits Amira L'nochri.