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MBY 543:1-3 Work done by a non-Jew
MBY 543:1-3 Work done by a non-Jew
Question: Does the prohibition against ‘amira l’akum’ (i.e. when a Jew instructs a non-Jew to perform melachos that the Jew himself may not perform) apply on Ch”H? We have learned that on Shabbos and Yom Tov, ‘amira l’akum’ is generally prohibited. Did the Sages ordain the same for Ch”H or were they more lenient?

Answer: Here’s a surprise answer: Generally speaking, Ch”H is not the same as Shabbos and Yom Tov… It’s stricter!!! How so? Let us review a bit of background from Hilchos Shabbos first:

(Why should I sit and write the words when MBY Archives can do the job J!) MBY 243:1 Employing a Non-Jew on Shabbos (part 1): Major Introduction … “May a Jew have a business or employment arrangement with a non-Jew on Shabbos? We will be spending several weeks on this topic, so it behooves us to take a bit of time to lay out the principles that will be the foundation of this learning… Principle 1) The “shlichus” (lit. agency) of a non-Jew in the performance of forbidden work. The Torah states: “No work shall be done on these days.” Based upon this verse, the Sages decreed that not only must a Jew not perform melacha (forbidden work) himself, he may not have it done by a non-Jew. This decree is mitigated when the non-Jew’s work can be said to be self-motivated – i.e. all or primarily for his own self-interest and benefit – even though the Jew may receive incidental benefit from the non-Jew’s work.
Principle 2) “Mar-is ha’ayin” (lit. the appearance to the eye). This principle states that not only must a non-Jew be refrained from performing work as the agent of a Jew; he must not do any work that appears to be by the agency of the Jew! This decree is mitigated when, either: 1) The nature of the work is such that it is well-known that the non-Jew is not the agent of the Jew, or 2) The work is not visible by other people, so there are no “eyes” to appear to!”

Let us delve into this a bit more:
With regard to Principle 1 above, halacha recognizes two primary types of employment: - ‘S’chirus’ (hourly/daily wage-earning) – where the worker gets paid for his time no matter what, and he usually must work according to the employer’s schedule) and - ‘Kablanus’ (contracting) – where the worker gets paid only if the job is complete, and he has flexibility as to when he works.
When the non-Jew is hired through ‘s’chirus’, he is indeed considered to be the ‘shaliach’ (agent) of the Jewish customer, which is violation of this principle. With ‘kablanus’, however, the non-Jew is “working for himself” rather than the Jew’s shaliach, and thus the principle is not violated. However, even with kablanus, Principle 2 may still prohibit the non-Jew to work. For if a Jew were to observe the worker, he is likely to suspect that this is s’chirus, and thus the ‘maris ha-ayin’ principle is violated! In practice, therefore, ‘amira l’akum’ is generally prohibited whether the arrangement is made through s’chirus or kablanus.

Now, regarding Ch”H (IMPORTANT): The Sages ordained the same two decrees prohibiting ‘amira l’akum’ (‘shlichus’ and ‘maris ha-ayin’) on Ch”H as they did on Shabbos and Yom Tov!

Question: If the Sages applied both principles of ‘amira l’akum’ to Ch”H as to Shabbos and Yom Tov, why did we state above that the halacha is stricter with regard to Ch”H?!

Answer: It’s quite the technicality, but fascinating nonetheless: As stated in the MBY Archives excerpt at the end of Principle 2, the ‘maris ha-ayin’ decree is mitigated when: “2) The work is not visible by other people, so there are no “eyes” to appear to!” Let’s now take the following scenario: A Jew has contracted with a non-Jewish construction company to build him a home/building outside of the city-limits (‘techum’ – lit. “boundary”, i.e. 2000 cubits beyond the city-border). May the builder build on Shabbos? YES – because Principle 1 is mitigated by kablanus, and Principle 2 is mitigated because Jews are not passing by that house, since they are forbidden to walk outside of the techum! May the builder build on Ch”H? NO – because since there is no limitation on travel outside the techum on Ch”H, Jews may be observing the construction and thus Principle 2 is not mitigated! See how Ch’H is stricter?! Fascinating, no?

One final point: Is it permissible to arrange with a non-Jew on Ch”H that he should do some work for a Jew after the festival is over? Yes, in a limited way: If making the arrangement does not entail any measuring, weighing or counting, it may be made. Otherwise it may not. For example, one may not drop off “3 pieces” at the dry-cleaner on Ch”H even if he says, “Please don’t clean them until next week.”

One final note: As we have learned all along, with Hilchos Ch”H, there are exceptions to the prohibition against ‘amira l’akum’. For one thing, there may be a leniency for mitzvah-related work. For another, there may be leniency for certain types of kablanus where that is the prevalent norm and maris ha-ayin may not be an issue. Additionally, we have learned that DHA may be grounds for leniency as well.

As always, one should ask a ‘shaila’ of a Rav whenever an unusual situation arises.

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