Amira L'nochri - Part II by Rabbi Howard Jachter

5757/1997

            After exploring last week the source, nature, and scope of the prohibition of Amira L'nochri, asking a non-Jew to do forbidden labor on Shabbat, this week we will discuss those cases in which the rabbis permitted Amira L'nochri.

 

Talmudic Background - Five Sources

            Shabbat 121a:  The Gemara here tells us that in case of fire one may declare to non-Jews    , whoever extinguishes the fire will not lose (money).  This passage sets a tone for our discussion of the exceptions to the prohibition of Amira L'nochri.  Namely, Chazal do not treat the restrictions regarding Amira L'nochri lightly.  Even in case of fire Chazal only permitted one to hint to a non-Jew to do Melacha on Shabbat.

            Gittin 8b:  In a celebrated passage, the Talmud permits asking a non-Jew to write a deed which certifies transfer of title of Israeli real estate from a non-Jew to a Jew.  The Talmud explains that "even though Amira L'nochri is rabbinically prohibited, because of the great value of settling the Land of Israel, an exception was made."  As we shall see later, most Rishonim understand this passage as exceptional.  The Mitzva 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 proscribed act of Melacha.  This demonstrates how vitally important Chazal regard the Mitzva of moving to Israel and developing the Jewish presence in Eretz Yisrael.

            Shabbat 129a:  The Talmud here states that all needs of a  (sick individual, even if he is not dangerously ill) may be performed by a non-Jew for the sick individual on Shabbat.  (see Shulchan Aruch Orach Chaim 328:1) This is speaking of one who is defined as a , 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 .

            Eruvin 67b:  In Talmudic times, it was the practice to wash a baby's body in hot water both before and after the Brit Milla.  The Gemara here speaks of 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 and Tosafot that this is speaking of a situation of Brit Milah. 

            Eruvin 68a:  The Gemara on the very next page describes a similar scenario, 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  for thirty days subsequent to childbirth) needed hot water then 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 explains (as do most Rishonim) that this passage is speaking 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 Mitzva.

 

Tosafot - The Most Strict View

            Tosafot (Gittin 8b s.v "), however, views the Gemara in Gittin 8b to be exceptional. Only for the sake of the Mitzva of settling Eretz Yisrael may one ask a non-Jew to perform a Torah level prohibition.  Tosafot believes that one may not ask a non-Jew to perform even a rabbinically proscribed act even for the sake of a Mitzva.  Only for the sake of Brit Mila does Tosafot permit asking a non-Jew to perform a rabbinically proscribed act.  Incidentally, from the Tosafot we see the immense importance of the Mitzva of settling and living in Eretz Yisrael.

 

Behag

            Tosafot, however, cites the Behag who permits asking a non-Jew to do a Biblically proscribed act, if it is necessary for the performance of a Brit Mila.

 

Rambam - Middle View

            The Rambam (Hilchot Shabbat 6:9-11) takes a middle approach to this issue.  The Mitzva of Yishuv Eretz Yisrael is the only Mitzva 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 proscribed act in any of the following three conditions 1.  for the sake of a Mitzva 2.  for the sake of someone who is  , somewhat ill 3.  Any  , serious need.

 

Shulchan Aruch and Acharonim

            The Shulchan Aruch (O.C. 307:5) rules in accordance with the Rambam (though he does note as a   the opinion of Tosafot as well).  The Mishna Berura (307:22) cites the Eliyahu Rabbah who disagrees with the third and very flexible category of the Rambam -  .  Only in a case of Mitzva does this authority permit us to follow the Rambam, but not in a case of great need not involving a Mitzva (see Rav Mordechai Willig (Beit Yitzchak 22:88) for an interesting explanation of the Eliyahu Rabbah's ruling).

            The Rema (276:2) notes that 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 Rema, however, cautions that one should not rely on this lenient ruling unless it is a situation of great need.  The Mishna Berura 276:24 cites the " who rules that one should not rely on the Baal Haittur even in cases of great need.  He tells of communities which ate Shalosh Seudot in the dark, rather than relying on the Baal Haitur's leniency.  Indeed Rav Yechezkel Landau, (Teshuvot Noda Biyehuda 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 which had the practice of asking a non-Jew on Yom Kippur to light candles in the synagogue for the Neila service.  Rav Landau writes that wherever he served as the community rabbi 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 Neila.  Moving lit candles is a rabbinic prohibition () which the Shulchan Aruch permits in case of 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 Daven Neila.  Similarly, Rav Aharon Lichtenstein told me in the name of Rav Soloveitchik that one should make every possible effort to avoid relying on the Baal Haitur's leniency.  For an interesting suggestion 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

            Amira L'nochri is a rabbinic restriction which has a number of exceptions.  Although in the past it was necessary to rely on some great leniencies regarding this issue, today due to the use of timers, the need to engage in Amira L'nochri is greatly reduced.  Thus, it is very appropriate to be more strict than our forbearers on this issue, since we have much less need to rely on great leniencies.

            It should be noted, though, that people such as attorneys often face difficult situations of Amira L'nochri.  One should consult their Halachic advisor for guidance on dealing with such circumstances.

Amira L'nochri - Part III by Rabbi Howard Jachter

Pikuach Nefesh and Medinat Yisrael - Part I by Rabbi Howard Jachter