Part II

Scope of Amirah LeNochri

The Gemara in Bava Metzia 90a asks if amirah lenochri applies only 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 stating that since the Gemara is not conclusive, one may rule leniently since the prohibition of amirah lenochri is rabbinic and “safek derabbanan lekula,” we rule leniently about doubtful rabbinic matters).

The Rosh, however, prefers the Rishonim’s dominant view that the Gemara concludes that amirah lenochri applies to all Torah laws. The Rambam (Hilchot Issurei Biah 16:13) rules similarly. Shulchan Aruch (Even Haezer 5:14) codifies the Rambam and the Rosh.

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.” Significantly, even regarding fire, Chazal only permitted hinting to a non-Jew to do melacha on Shabbat.

Gittin 8b: Permits asking a non-Jew to write a deed certifying the 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.” 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 melacha. This demonstrates how vitally important Chazal regards moving to Israel and developing its Jewish presence.

Shabbat 129a: 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 is not functioning normally (such as one with a severe migraine headache). The non-Jew may perform even biblically proscribed activity on behalf of the choleh (Mishna Berura 328:47).

Eruvin 67b: In Talmudic times, we washed the baby in hot water before and after the brit milah (Shabbat 134b). The Gemara on Eruvin 67b addresses a situation where the pre-brit hot water spilled (they would not perform a brit otherwise). Rabbah permitted instructing a non-Jew to bring hot water from elsewhere, although carrying it was rabbinically prohibited in that area (no eruv chatzeirot was made). Most Rishonim agree with Rashi (s.v. DeIshtapeich) and Tosafot (s.v. VeHa) that this Talmudic passage permits amirah lenochri only for brit milah.

Eruvin 68a: The Gemara describes a similar scenario in which the hot water 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 30 days after 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 speaks only of hot water necessary for brit milah.

Rishonim: Four Views

Baal HaIttur—The Baal HaIttur rules extraordinarily leniently. He views Gittin 8b as the rule—rather than the exception—and permits asking a non-Jew to perform even a biblically proscribed act for a mitzvah. TABC talmid Jacob Morris notes that the Tosafot Rid to Gittin 8b agrees with the Baal HaIttur, as he writes that the rabbis did not apply their prohibition of amirah lenochri in the case of a mitzvah.

Tosafot—the strictest view: Tosafot (Gittin 8b s.v. Af Al Gav), however, views Gittin 8b as exceptional. Only for settling in 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 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 see from the Tosafot the profound importance of the mitzvah of settling and living in Eretz Yisrael.

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 brit milah is also exceptional because of its extraordinary importance. Indeed, the Torah stresses brit milah’s centrality in Bereishit, perek 17 by mentioning the word “brit” no less than 13 times (Mishna, Nedarim 3:11). Moreover, since brit milah overrides Shabbat according to biblical law, Chazal similarly permitted amirah lenochri for brit milah’s ancillary needs.

Rambam—The Rambam (Hilchot Shabbat 6:9-11) adopts a middle approach. He believes that 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 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.

Shulchan Aruch and Acharonim

The Shulchan Aruch (Orach Chayim 307:5) codifies the Rambam, though he notes Tosafot as a secondary opinion. The Mishna Berura (307:23) cites the Levush and Eliyahu Rabbah who follow the Rambam. The Mishna Berura (307:22) cites the Eliyahu Rabbah as severely limiting the third and somewhat vague category—tzorech harbei. Only in a case of great need that involves bodily pain does he permit following the Rambam (see Shaar Hatziyun 307:24).

The Rama (Orach Chayim 276:2; also see Orach Chayim 307:5) notes that many communities rely on the Baal HaIttur to ask non-Jews to turn on lights to enjoy Shabbat meals. The Rama, however, cautions that one should not be lenient absent great need. The Mishna Berura 276:24 cites the Shelah that one should not rely on the Baal HaIttur even in cases of great need. He tells of communities whose members ate seuda shlishit in the dark rather than relying on the Baal HaIttur. 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 Neilah on Yom Kippur. Rav Landau writes that he stopped this practice in the communities where he served as the rav. As an alternative, he urges a non-Jew to be asked to carry the remaining lit candles to provide enough light to recite Neilah. 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 to enable the community to recite the amidah of Neilah. The Shaarei Teshuva (623:1) and the Mishna Berura (623:3) codify Rav Landau’s ruling. Similarly, Rav Aharon Lichtenstein told me that Rav Yosef Dov Soloveitchik instructs making every effort to avoid relying on the Baal HaIttur.

Conclusion

Next week, we shall (im yirtze Hashem and bli neder) conclude our discussion of amirah lenochri.

Rabbi Jachter serves as the rav of Congregation Shaarei Orah, rebbe at Torah Academy of Bergen County and a get administrator with the Beth Din of Elizabeth. Rabbi Jachter’s 20 books may be purchased at Amazon and Judaica House.