Non-Jews Violating Shabbat on Jews’ Behalf

by R. Gidon Rothstein

27 Tammuz: R. Uzziel on Non-Jews Violating Shabbat on Jews’ Behalf

The personal interplay between the person asking the question and the respondent is also an aspect of the responsa literature from which we can learn. In Shu”t Mishpetei Uzziel 3;Orach Chayyim 31, dated 27 Tammuz 5798 (1938), R. Uzziel responds to an article by R. Yosef Shaul Elyashar, a man from an important Sephardic rabbinic family (both his grandfathers had been Rishon Le-Tziyyon, the position that later became the Sephardic Chief Rabbi of Israel) and a prominent lay leader of the community.

This R. Elyashar apparently took issue with a prior ruling of R. Uzziel’s regarding relying on non-Jews for assistance on Shabbat. One of the undercurrents of the responsum is R. Uzziel’s balancing polite respect for this R. Elyashar along with his vigorous, even biting, disagreement with the ideas he presented. We’ll watch that as we also review the content of the reply.

Different Kinds of Contractors

In an earlier responsum (Shu”t Mishpetei Uzziel 1, p. 227), he had dealt with Rambam, Laws of Shabbat 6;12. Rambam permitted hiring a non-Jew long-term for an activity that Jews may not do on Shabbat (such as being the house-scribe or seamstress), even if the non-Jew then does that activity on Shabbat (as long as the Jew does not expect or ask that it happen then).

R. Uzziel had suggested that Rambam reached this conclusion because he saw it as equivalent to the case of contracting with a non-Jew to produce a book or a piece of clothing. That is clearly allowed, even if the non-Jew works on Shabbat, since it’s his/her choice as to when to do the job. Rambam saw the long term hiree as the same, the non-Jew is really choosing to do his/her work on Shabbat, (such as coming into the office on a Shabbat to clear one’s desk).

Ra’avad objected that in this case, the Jewish employer directly benefitted from the work being done on Shabbat (a house-scribe who writes something on Shabbat will make it available to the Jew right then; there’s a more direct connection between each piece of work and the employer). R. Uzziel had suggested that Rambam’s source was Shabbat 121, which says that a Jew need not object to a non-Jew extinguishing a fire, even if the Jew will benefit. As long as the non-Jew is acting on his/her own accord, for his/her own purposes, the Jew need not get involved.

So, too, in Shabbat 17b, where Beit Hillel allow giving work to a non-Jew even if the non-Jew will likely do the work over Shabbat (such as a dry cleaner). As long as there’s enough time that it could be done other than on Shabbat, the timing to Shabbat is the non-Jew’s choice. (If I may interject: to me, this can easily be abused. If I give twelve hours’ worth of work to a non-Jew just before Shabbat and say I’m picking it up at 8AM on Sunday, true, the non-Jew could do it all Saturday night instead of Shabbat, but I would be leery of relying on that.)

Finding Rambam’s Source

R. Elyashar had argued that R. Uzziel misidentified Rambam’s source (remember that Rambam consciously chose not to source his rulings in Mishneh Torah, so we are sometimes unsure of what fueled his conclusion). R. Uzziel agrees that Maggid Mishneh had suggested the source that R. Elyashar offered, Mo’ed Katan 12a, which allows helping a non-Jew who has been hired for an extended period to bring sheep into a field to fertilize it with their droppings. 

R. Uzziel objects that that’s not a parallel case, since the non-Jew has no specific reason to work on Shabbat or Yom Tov. With an employee who does specific tasks as they arise, there’s more reason to agree with Ra’avad that the non-Jew is acting directly for the Jew, since the Jew will benefit from the work as soon as it’s done. And Maggid Mishneh had himself noted that this was a problematic source, so R. Uzziel feels comfortable suggesting another one.

Employees Acting of Their Own Accord

R. Elyashar had also argued with the analogy to the non-Jew putting out a fire, because this non-Jew is an employee, which he took to mean that all that non-Jew’s actions automatically count as being on behalf of the Jew. R. Uzziel calls this a ta’ut, an error (tension alert!), because the non-Jew is being paid, which means that s/he is acting to earn that money (we have seen elsewhere that some rabbis, including Noda Bi-Yehuda, held that non-Jewish employees could staff a Jewishly-owned store on Shabbat as long as they earn a percentage of the profits, since they are then working for that money, not for the Jew).

A common example is sending mail or giving clothing to a dry cleaner. As soon as the fee is fixed, it’s the non-Jew’s choice, for his/her own reasons to do that work on Shabbat. Rema agreed with this explicitly, in Orach Chayyim 252;14, where he preferred that we wait until enough time after Shabbat that the non-Jew could have done it then; but it that’s not possible, he allows using it even on Shabbat.

Here’s where a bit more admonishment comes in. R. Uzziel adds that the sources cited show that R. Elyashar’s idea—that being under contract means all the non-Jew’s actions are seen as on behalf of the Jew—had no basis. In halachah, chides R. Uzziel, we don’t make up ideas of our own, the perspectives of those who came before us must be our guide in forming our own views.

(This is a hugely important general point, often missed: the goal of the student of Torah is to form one’s own views by deriving them from the past, not assuming an idea is true because it seems so reasonable. It’s part of what I like about this series of summarizing responsa, learning from a broad range of predecessors to one day suggest overarching principles of halachic process and content.)

When the Jew Benefits, and How

There are situations where we must see the non-Jew’s actions as being for the Jew even if no explicit connection is drawn. Where the Jew will benefit directly and bodily and the non-Jew will not, his/her actions are necessarily seen as being on behalf of the Jew (such as lighting a candle). (There’s more to these halachot than R. Uzziel covers here, but it’s a reminder that it’s not simple to ask a non-Jew to act on our behalf on Shabbat; it’s best to consult on each case.)

R. Uzziel had argued that bodily benefit includes even those actions the Jew would have had to do him/herself had the non-Jew not done them (such as filling the animals’ water trough), and is therefore seen as being done for the Jew. 

R. Elyashar pointed out that R. Uzziel had failed to note that Korban Netanel, a commentary on the Rosh, said much of this (that’s accusatory, as if R. Uzziel had either deliberately chosen not to mention it, or had not done enough research, since he missed a Korban Netanel]). When mentioning that, R. Uzziel refers to R. Elyashar as harav hamasig, yetz”u (Hashem yatzilehu ve-yishmerehu, Hashem should save and guard him), which feels like exaggerated politeness given the sharpness of what’s about to come.

First, he says he’s not obligated to have every Korban Netanel in his pocket (a reminder of a recurring question I find always interesting, what different authorities considered the minimal beki’ut, breadth of knowledge, for a pesak). Besides, when it comes to halachic analysis, the goal is a correct conclusion, not asking lots of questions (to me, this is a jab, a suggestion that R. Elyashar was more invested in counterpunching, in pointing out errors in R. Uzziel’s analysis, than finding the proper halachic  way to approach these issues).   

Taking Apart R. Elyashar

R. Elyashar had brought up the Korban Netanel and attacked his ideas (and, by implication, R. Uzziel’s), so R. Uzziel pauses to show the insufficiencies of those attacks. One example is that R. Elyashar had taken for granted that the case of the non-Jew filling the water trough was where he explicitly said he was doing it for the Jew, but there’s no evidence for that.

As long as the non-Jew doesn’t have an animal, the filling of water is clearly on behalf of the Jew (just as lighting a light is for the Jew unless the non-Jew in fact intends to use it (this is why one workaround is to invite the non-Jew to use the room where we want a light, such as offering cake or coffee. Once the non-Jew really is doing it for him/herself, there’s more room to allow Jews to benefit from it)).

R. Elyashar had also apparently failed to understand that Korban Netanel differentiated between where the Jew will obviously pay the non-Jew a great deal of money (such as when the non-Jew puts out a fire) and where any payment will be minimal. For all that no words passed between them, when the non-Jew expects a great reward, that counts as doing it for his/her own benefit. Lighting a candle or drawing water are not remunerative enough to say that.

Making Friends Again

At this point, R. Uzziel’s tone shifts, perhaps because he knows he’s been very sharp. He turns to the words of “my important friend, the honored R. Yosef Shaul Elyashar, Hashem should watch him,” who had argued that the problem with the water trough was that the Jew would lead his animals there on Shabbat. R. Uzziel disagrees, first because Tosafot prohibited sitting in a room where a non-Jew lit a candle on his/her behalf, even if the Jew took no action. Any time the non-Jew’s action is halachically construed as being for the Jew, the Jew may not benefit.

He adds that this is so eminently logical it should not need proof (which seems to contrast with his earlier rebuke of R. Elyashar for advancing an original idea of his own), but that in fact Shabbat 122 makes clear that we are not allowed even to let our animals go themselves to benefit from actions done by a non-Jew for a Jew.

Ask, Ask, How Will You Learn If You Don’t Ask?

There’s another sharp rebuttal I don’t have space to include here, and then R. Uzziel notes that R. Elyashar had said that he had issues with the lenient ruling regarding using an elevator where the non-Jew him/herself goes up as well, but did not want to question a rabbi’s ruling (an odd claim, since that’s what he had done until now).

R. Uzziel again chides him, that that’s not the path of Torah. In Torah, it’s a mitzvah to critique others, and is how all the rabbis of Jewish history have acted, questioning and responding, the process producing deeper insight and understanding of the system (even though the answers might sometimes be biting, it seems).

For his part, he doesn’t see why the elevator case is different or worse than the non-Jew lighting a candle, and he thought the non-Jew being a long-term employee helped on these issues, as he wrote in the responsum that sparked this exchange.

R. Uzziel Teaching Us In Form and Content

It’s a responsum I found informative at two levels. On the content plane, the issues of how we do or do not ask non-Jews to help ease our Shabbat observance are continuingly relevant, and this is a good reminder of some basic principles.

At the interaction level, it was educational to watch R. Uzziel be both extremely sharp in rejecting R. Elyashar’s ideas, while at the same time making a point of his friendship and respect, and encouraging further questions. He apparently assumed R. Elyashar could take the rebukes as they came, and not be deterred from initiating such conversations in the future. An assumption I’m not sure we could make in our times.

Listen to Rabbi Rothstein discuss this on OU Torah.