This week we shall focus on circumstances in which we are permitted to ask a non-Jew to perform Melacha for us on Shabbat. We will discuss the situations of Choleh, a sick individual, (suffering animals), (which we will define later), and (hinting).
Choleh - Sick Person
We mentioned last week that the Gemara in Shabbat 129a states one may ask a non-Jew to do Melacha on behalf of a sick individual even if the latter is not dangerously ill (provided, though, that he is confined to bed or cannot function normally). The Rema (Orach Chaim 127:1) writes that this rule applies at all times to Ketanim (children) as even healthy children have the status of a Choleh. The Mishna Berura (276:6) limits this rule to a situation where there is considerable need for Melacha to be done on behalf of a child. Dr. Abraham S. Abraham (Nishmat Avraham 328:54) cites quite a range of opinions among modern decisors 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 rules that a child has the status of a Choleh only to 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 three. Dr. Abraham suggests that this question may depend on the relative strength of an individual child and vary from child to child. One should consult his Halachic advisor for guidance regarding this issue.
Air Conditioning and Heat
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). Rav Moshe Feinstein (Igrot Moshe 3:42) 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 us to ask a non-Jew to turn off the air conditioner. The Shulchan Aruch articulates that basis for this ruling is that , everyone has the status of a Choleh (or potential Choleh) regarding the cold.
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 articulates a concept parallel to that mentioned by the Shulchan Aruch, namely , that all are considered as a Choleh (or potential Choleh) regarding extreme heat. Shemirat Shabbat Kehilchata (13:34) codifies Dayan Weisz' ruling and cites no dissenting view. It should be noted that Dayan Weisz also utilizes Rav Shlomo Zalman Auerbach's ruling that completing a circuit is not a Torah prohibition if no filament is thereby heated until glowing.
The Shulchan Aruch (O.C. 305:20) 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 ia a particularly relevant issue in Israel and we plan to write, with God's help, on this issue extensively for next year's celebration of Yom Haatzmaut, ).
The source ruling is a Rosh (Shabbat 18:3) who cites the Maharam of Rothenberg as being the first to articulate this ruling. Its basis is a Talmudic passage (Shabbat 128b) that records that one may take non-Muktzah items such as pillows to support an animal which has fallen into a water ditch. This is permitted despite the fact that he renders the pillow as "Muktzah," thereby violating the Rabbinic prohibition of (Rashi explains that this is Rabbinically prohibited because it appears as if he is destroying () the item, as he is rendering the item 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 help a suffering creature. Similarly, one may violate the Rabbinic prohibition of asking a non-Jew to do Melacha for us on Shabbat in order to aid a suffering animal. Thus, one may ask a non-Jew to summon a non-Jewish veterinarian to help a sick pet.
Psik Reisha is an important Halachic category. The background to this concept is as follows. If one performs a permitted act which may cause a prohibited act to occur (the Talmudic example is one who drags a chair along a dirt floor, which may cause a furrow), the action is permitted as long as he did not intend for the forbidden act to occur ( ). However, is the secondary act will inevitably occur ( ), the primary act is forbidden despite the fact that he did not intend for the forbidden action to occur. Thus, one may not open on Shabbat a refrigerator door in which the light bulb is still working. Opening the refrigerator door is forbidden since the light bulb will inevitably be lit, despite the fact that his intention is not to turn the light bulb on. However, most authorities permit asking a non-Jew to do an act that is forbidden for us due to the Psik Reisha principle (see Mishna Berura 277:15, Igrot Moshe 2:68, and Shemirat Shabbat Kehilchata 31:1 and footnote 1). Thus one may ask a non-Jew to open a refrigerator door even though the light will go on. Rav Mordechai Willig (Beit Yitzchak 22:9) offers the following explanation for this ruling. As we mentioned two weeks ago, the prohibition of Amira L'nochri is either because the non-Jew is viewed as acting as our Shaliach or because of the prohibition to even mention Melacha on Shabbat ( ). Accordingly, when one asks a non-Jew to do an act which is permitted, the non-Jew is acting as one's agent to do the permissible intended action and not the resultant forbidden act. Similarly, since one asked the non-Jew to perform the permissible act, he has not spoken about the proscribed activity on Shabbat.
The Rema (O.C. 307:22) cites the Ohr Zarua (2:85) who rules that "anything that one may not ask a non-Jew to do on Shabbat is forbidden to hint to him on Shabbat." The Ohr Zarua cites as his source the Gemara in Shabbat 121a (that we mentioned last week) that only permits one to state to a non-Jew in case of fire "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 Mishna Berura (307:76) notes that only when one hints in a language of command is hinting prohibited. The time appropriate example of the Mishna Berura is that one may not say to 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 hints not using a command , he does not run afoul of the Amira L'nochri interdict. For example, he may state "the candle is not emitting light properly" or "I cannot read in this light."
A major word of caution is necessary to note at this point. This is not a case when Amira L'nochri is permissible. Rather, hinting in this manner merely avoids violation of the Amira L'nochri prohibition. When Amira L'nochri 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 Melacha, the prohibition to benefit from the non-Jew's Melacha is also waived. However, even if one avoids the Amira L'nochri prohibition, he still may not benefit from the Melacha done by a non-Jew on behalf of a Jew (see Shabbat 122a). In the Mishna Berura's example of noting the poor lighting, 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 benefit from the non-Jew's action as he has not created something to benefit from; rather he merely removes the light which then makes it possible to sleep more readily.
Rav Moshe Feinstein (Igrot Moshe Yoreh Deah 3:47) 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 (if it is not a situation which warrants outright Amira L'nochri). Rav Moshe explains that one cannot say he would in any case been able to be in the room without the air conditioner functioning, similar to the Mishna Berura's case of being able to read without the non-Jew's adjusting the candle. The difficulty is that 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, then one could not have benefited from the air conditioner before the non-Jew turned it on.
Nevertheless, if the air conditioner was on and functioning minimally and one commented to a non-Jew that "the air conditioner os not working properly" and the non-Jew fixes the air conditioner to provide maximum comfort, it would appear to be permissible to benefit from the non-Jew's action. Similarly, if it is somewhat cold in the room and one 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.
This concludes our discussion of Amira L'nochri for this semester. We hope in the next school year (with God's help, ) to further discuss this important issue.