Part I

The question of “amirah lenochri” looms large: In what cases are we forbidden to ask a non-Jew to do forbidden labor for us on Shabbat or Yom Tov, and in what cases are we permitted to do so? Interestingly, this issue is not as relevant as it was in generations past. This positive change results from thermostats, timers and other technologies that have, baruch Hashem, greatly reduced the need for amirah lenochri.

Source of Amirah LeNochri: Torah Or Rabbinic Prohibition?

It is biblically forbidden to ask his Canaanite slave to do melacha (forbidden labor) for him on Shabbat. This prohibition 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 for the former’s benefit. This view emerges from the fact that the ban on engaging in melacha on the Yom Tov of Pesach is articulated in the passive voice (“Kol melacha lo yeiaseh vahem”), indicating that no work may be done for a Jew on Yom Tov—even that which is done on his behalf by a non-Jew.

The dominant view, however, is that it is a rabbinic-level prohibition to ask a non-Jew to engage in melacha on Shabbat or Yom Tov. The Gemara refers to this prohibition as a rabbinically forbidden activity—“amirah lenochri shevut,” (e.g., Shabbat 150a and Bava Metzia 90a). Thus, the Rambam (Hilchot Shabbat 6:1) unsurprisingly articulates the accepted view that amirah lenochri is a rabbinic-level prohibition. We regard the Talmud Bavli as authoritative (see the Rambam’s introduction to the Mishneh Torah), and sources as the Mechilta are not followed when they conflict with the Talmud Bavli (Rosh, Chullin 2:6). The Rambam writes that the rabbis prohibited amirah lenochri, “so that Shabbat not be taken lightly, which would lead to a Jew performing melacha himself.”

The Nature of the Prohibition

Rashi presents two approaches to amirah lenochri: He indicates (Shabbat 153a s.v. Mai Ta’ama) that a non-Jew who performs melacha on behalf of a Jew on Shabbat is considered the Jew’s shaliach (agent). Since the halacha asserts that “Shelucho shel adam kemoto—the agent is considered as if he were the individual who appointed him as the agent,” (Kiddushin 41)—the forbidden act of labor performed by the non-Jew is related to the Jew who asked him to do it.

Even though ordinarily we say that, “Ein shelichut lenochri,” the rules of agency do not apply to non-Jews (Bava Metzia 71b), Rashi nevertheless apparently believes that on a rabbinic level, we say, “Yeish shelichut lenochri lechumra,”—the rules of agency apply to a non-Jew when the ramifications are strict. Rashi presents a similar approach regarding ribbit, the prohibition to charging interest (Bava Metzia 71b s.v. Bishlama Seifa).

Rashi (Avodah Zara 15a s.v. Keivan DeZavna) teaches that the prohibition stems from “Vedabeir davar,” (Yeshayahu 58:13), “Shelo yehei diburcha beShabbat kediburcha bechol,” one’s conversations on Shabbat should differ from his weekday ones. Just as one may not perform melacha on Shabbat, he is forbidden to speak about the melacha. Thus, vedabeir davar forbids amirah lenochri since when one asks a nochri to perform a melacha, he talks about the melacha.

Amirah LeAmirah LeNochri

A ramification might be the debate cited by the Mishna Berura 307:24 about amirah leamirah lenochri, asking one non-Jew to ask another non-Jew to do melacha. Although vedabeir davar applies since he speaks about melacha, shelichut does not apply. This is because, “Mili lo mimseran leshliach” agency applies only when one appoints the agent to act (such as marry or divorce on his behalf), but not to make a statement (such as appointing a second agent).

The Mishna Berura concludes by citing the Sefer HaChaim, who rules that in cases of serious monetary loss, one may rely on the lenient view of the Chavot Yair. He cautions, however, that all agree that in such a case, a Jew may not benefit on Shabbat from the nochri’s work.

However, Rav Yosef Adler reports that Rav Yosef Dov Soloveitchik does not subscribe to this leniency. In addition, Rav Hershel Schachter (Bikvei Hatzon, page 57) does not rely on Chavot Yair’s ruling or even the Chatam Sofer (that we will soon cite). For example, Rav Schachter rules that it is forbidden to pay for an ad in a newspaper owned by non-Jews that will appear in the Saturday edition of the paper since, in effect, one is instructing a non-Jew to print his ad when the paper is printed on Friday night.

Perhaps we can be lenient regarding asking a non-Jew before Shabbat to ask a second non-Jew to do melacha on Shabbat. Although amirah lenochri is forbidden even when the Jew speaks to the non-Jew before Shabbat (Shulchan Aruch, Orach Chaim 307:2), this is because of shelichut. 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 vedabeir davar is not relevant when requesting melacha before Shabbat. Thus, the Chatam Sofer (Teshuvot Orach Chayim 60) permits asking a non-Jew before Shabbat to ask a second non-Jew to do melacha on Shabbat.

This ruling might be relevant at work where, on Friday, one must ask a delivery company to deliver a package on Saturday. The Biur Halacha (307:2 s.v. VeAfilu) appears to reject the Chatam Sofer, since the Rashba contradicts him. On the other hand, the Mishna Berura (307:24) seems to rely on the Chavot Yair in case of great need.

Perhaps in the Mishna Berura, the Chafetz Chaim does not permit relying on the Chavot Yair except for serious financial need. In the Biur Halacha, however, he expresses great reservations about the Chatam Sofer’s approach but does not reject the Chatam Sofer (or the Chavot Yair) in case of serious financial loss. However, Rav Soloveitchik and Rav Schachter reject the Chavot Yair. Accordingly, one should consult his rav for a ruling regarding this matter.

Conclusion

Next week, im yirtze Hashem and bli neder, we will explore the situations in which halacha permits 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.