Shulchan Aruch: Chapter 243 - Law Pertaining to One Who Leases a Field or a Bathhouse to a Non-Jew

SECTION 243 The Law Pertaining to One Who Leases a Field or a Bathhouse to a Non-Jew (1-16)

1 Our Sages1 forbade instructing a non-Jew to perform work2 for us on Shabbos, whether without charge or for a fee.3 [This prohibition applies even when,] before Shabbos, one instructed the non-Jew to perform [the activity] on Shabbos,4 and [even] when [the Jew] does not need that work [performed] until after the Shabbos.5[The rationale for the prohibition:] When the non-Jew performs [the labor] on Shabbos, he is acting as an agent of the Jew.

In matters of Scriptural Law, the principle that “A person’s agent is considered like the person himself,”6 applies only to [the appointment of] a fellow Jew [as one’s agent]. For it is written with regard to terumah:7 “So too shall you also (גם) raise up the terumah of G‑d.” Our Sages8 extrapolate that the term גם (“also”) serves to include one’s agent, teaching that a person’s agent is considered as the person himself. [From that same verse, they derived the principle:] “Just as you are members of the covenant, so too, your agents must be members of the covenant.” Thus, according to Scriptural Law, the construct of agency does not apply to a non-Jew9 [and if not for the Rabbinic decree, it would be permitted to use a non-Jewish agent to perform labor on Shabbos on one’s behalf]. Nevertheless, according to Rabbinic decree, a non-Jew can be considered as acting as an agent [on a Jew’s behalf] when it results in a stringency.10

There is an allusion in the Torah to this prohibition regarding Shabbos and festivals, for it is written with regard to the festivals:11 “No work shall be performed on them.” [Seemingly, the verse should have stated, “Do not perform any work on them.” The use of the passive voice implies:] not even [on your behalf] by others who are not commanded with regard to resting on the festivals. How much more so does this apply with regard to Shabbos!12

Nevertheless, this extrapolation is no more than an asmachta13 and the primary prohibition against instructing a non-Jew [to perform work] on Shabbos or on festivals is a Rabbinic ordinance, so that people at large will not consider the Shabbos [prohibitions] a trivial matter and come to perform [forbidden labors] themselves.14 The same [principle applies] with regard to festivals,15 and even Chol HaMoed.16 The same applies with regard to all the Scriptural prohibitions,17 as explained in the relevant places.18

2 Our Sages were extremely strict regarding this prohibition and issued decrees concerning it.19 For example, [even] if a non-Jew performs work for a Jew on his own initiative,20 it is forbidden to benefit from this work on Shabbos21and [also] on Saturday night for the time it would take to perform that task,22 lest he tell him [on another occasion] to perform it on the Shabbos.23

Similarly, if [a Jew] sees [a non-Jew] perform work on his behalf on Shabbos, there are times — for example, when the Jew will benefit from [the work],24 even [if he will derive this benefit only] after Shabbos — [the Jew] must protest and admonish [the non-Jew for performing the work].25 ([The laws that apply] if [the Jew and the non-Jew] will both profit from [the non-Jew’s] actions26 are explained in sec. 244[:1]27 and sec. 252[:5].)28

3 Therefore, [the following laws apply when] a person owns a bathhouse in which all wash and pay him a fee, he owns an oven in which all bake and pay him a fee,29 or he owns a mill in which all grind [flour] and pay him a fee.30 He seeks to hire a non-Jew for the entire year to perform all the tasks necessary for the bathhouse, mill, or oven, receive the fees from those who bathe, grind flour, and bake, and bring them to the Jewish [owner].31 He must admonish the non-Jew and not allow him to operate these concerns on Shabbos for the non-Jews who will bathe, grind flour, and bake there. [The rationale:] The Jew profits from the work performed by the non-Jew on Shabbos, for he is remunerated for this.32

(Even if the non-Jew need not perform any work at all [on Shabbos], because he prepared everything on Friday, nevertheless, by collecting the fees from the [other] non-Jews, the non-Jew is acting on behalf of the Jewish [owner]. Since the Jewish [owner] himself is forbidden to receive a fee [for the use of his premises] on the Shabbos day, it is also forbidden for the non-Jew to collect it for him.)

License should not be granted on the basis that the non-Jew is undertaking these efforts on his own behalf, [to earn] the wage designated for him. [The rationale:] Were the Jewish [owner] to deny himself the profit from the Shabbos and instruct the non-Jew not to be near the bathhouse, the mill, or the oven on Shabbos, he could [in any case] not reduce [the non-Jew’s] wage at all, for he did not hire him for each individual workday, but for the entire year or month as a single unit.

True, it would not occur to the non-Jew that the Jewish [owner] would not require him to work on Shabbos and yet would pay him his full wage even though he did not work on the Shabbasos at all. Thus, according to his simple understanding, he is working to carry out the contract that he accepted when hired without conditions: to work the entire year or month, so that he will be paid his full wage and the employer will have no complaints against him. Thus the non-Jew’s intent is that he is [operating the concern] for his own benefit. Nevertheless, (in truth,) the non-Jew derives no benefit or profit from his work on Shabbos, for his [Jewish employer] could not deduct anything from his wages, even if he would not work at all on Shabbos, and the Jewish [employer] does derive benefit from [the non-Jew’s work].33 As such, it appears that his activity is being carried out for the sake of the Jewish [employer] alone.

4 How much more so does the above apply if the non-Jew was hired by the day, i.e., he was told: “For each individual day that you operate the bathhouse, oven, or mill, I will pay you such-and-such.”34 Even though [the Jewish employer] did not tell him to operate [the concern] on Shabbos and the non-Jew went and did so on his own initiative, it is necessary to admonish him for this and not allow him to operate [the concern] on Shabbos.35Although the non-Jew has his own self-interest in mind — i.e., he is working to earn the wage designated him for each day of work36 — nevertheless, since he does so because of the statement of the Jewish [owner] who hired him to work for a number of days,37 he is considered as working as an agent of the Jewish [owner].

True, the Jewish [owner] did not tell him to work on Shabbos; he merely hired him to work for a number of days without making any specifications. Nevertheless, the non-Jew who is operating the concern on Shabbos operates it because the Jewish [owner] hired him for a number of days and, in his mind, today [i.e., on Shabbos as well], he is the Jewish [owner’s] hired worker and he is acting as his agent. Therefore, even though he is working for his own benefit, this is of no consequence [with regard to his halachic status]. For with regard to agency, it makes no difference whether he is acting for the benefit of the principal or for his own benefit; regardless, he is his agent.

5 Even when [the Jewish owner] hired the non-Jew for an [entire] year,38 if he transgressed and did not admonish [the non-Jew], but instead, permitted him to operate the concern on Shabbos, and the non-Jew brought the fees to the Jewish [owner, he is forbidden to benefit from the fees collected on Shabbos. This stringency applies] even though [the non-Jew] did not bring him the fees he received for the Shabbos as a [separate and] distinct entity, but rather combined them with the fees for the other days, e.g., he brought to him the fees for four or five days combined together39 and one of those days was Shabbos. In such an instance, the money is not forbidden as"Shabbos earnings,”as will be explained in subsection 11. Even so, the Jew is forbidden to benefit from the fees collected by the non-Jew on Shabbos. This is a penalty our Sages imposed upon him.40

6 [Different laws apply,] however, if the Jewish [owner] desires to rent the bathhouse to the non-Jew so that the non-Jew would work there whenever he desires, but would not be required to work,41 and would take all the fees for himself, merely giving the Jewish [owner] a designated amount each year or each month, whether [the non-Jew] heats [the water of the baths] or not. [In this case,] according to the letter of the law, the arrangement would be permitted. For even if the non-Jew would operate the concern on Shabbos, he does not intend that his work benefit the Jewish [owner], but [does so] for his own benefit. For even if he does not heat [the water of the bath] on Shabbos, the Jewish [owner] will not deduct anything from the rent he is required to pay. Moreover, even if the Jewish [owner] would deduct some of the rent if [the non-Jew] did not heat [the water], nevertheless, [the non-Jew] would heat it [for his own sake], to earn money. Thus he is acting solely his own self-interest.

Nonetheless, our Sages forbade such practices,42 because of the erroneous impression that would be created (maris ayin). [The rationale:] The name of the Jewish [owner] is associated with the bathhouse, i.e., all know that the bathhouse belongs to a Jew.43 And when [other Jews] see that non-Jews are bathing in the bathhouse of the Jewish [owner] on Shabbos with a non-Jew operating it, they will say that the non-Jew is a day-worker hired by the Jewish [owner], and thus suspect the owner of violating the directives of our Sages in allowing the non-Jew to operate the concern on Shabbos. (Or perhaps they will suspect that the Jewish [owner] hired the non-Jew to operate his bathhouse on Shabbos.)

Although Jews at times also used the bathhouse during the week and they see that the non-Jew is the one who operates the bathhouse during the week as well, they will not think that the Jewish [owner] rented the bathhouse to the non-Jew with the stipulation that the non-Jew take the proceeds for himself, and operate the bathhouse as he desires, instead of acting as the agent of the Jew. [The rationale:] It is not common for most people to rent bathhouses, because the expenses are high44 and the profits are minimal.45The profits are [generally] not sufficient for the renter to pay a fixed amount to the owner of the bathhouse and for there to remain a significant amount beyond the wage he would be paid for his work and efforts. Therefore, the normal practice is that anyone who owns a bathhouse hires a worker to operate it and the profits belong entirely to the owner of the bathhouse.

7 It is, however, permitted to rent out a field to a non-Jew46 so that the non-Jew perform his work whenever he desires, but would not be required to work,47 and would take all the produce for himself, merely giving the Jewish [owner] a designated amount each year, whether money or some of the produce of the field.48

The non-Jew may work even on Shabbos. There is no fear that an [erroneous] impression might be created, i.e., that people might say that the non-Jew is a day-worker, hired by the Jewish [owner] or that [the Jewish owner] hired him to work his land on Shabbos. [The rationale:] The custom of most people is to lease out a field under a share-cropping agreement.49 [Under such an arrangement,] a person receives fields to plow, sow, and perform all necessary tasks, and receives half, a third, or a fourth of the [field’s] produce as payment for his work, and the remainder is given to the owner of the field. Therefore, it can be assumed that when people see the non-Jew working on Shabbos in the Jew’s field, they will say that he is the Jew’s share-cropper. And there is no prohibition whatsoever in giving one’s field to a non-Jew under a share-cropping agreement even though the Jewish [owner] benefits from the fact that the share-cropper works his field on Shabbos; indeed, the majority of the produce of the field belongs to the Jewish [owner].50 Nevertheless, since the non-Jew does not have the intent that he is working for the benefit of the Jewish [owner], but for his own self-interest — that he receive the share due him from the produce51 — even though as a natural consequence, the Jewish [owner] will benefit, [the Jewish owner’s benefit] is of no significance. [The Jewish owner] must, however, take care not to tell [the non-Jew] to work on Shabbos.52

8 [Different laws apply when a Jewish owner] hired a non-Jewish worker for a year [with the stipulation] that he perform all the work necessary for his field during that year. True, according to the letter of the law, it would be permitted for [the Jewish owner] to let the non-Jew work the field on Shabbos, for the non-Jew has his own self-interest in mind; [he is working] to receive the wage designated for him. Granted, the Jewish [owner] will pay him even though he does not perform that work on Shabbos. But he would have to perform it on another day, for he hired him to perform all the tasks necessary for his field throughout the year.53 Therefore, [even though] he is performing [the task] on Shabbos, [he does so for his own convenience] so that he will not have to do it on another day. (Moreover, he does not even appear to be the Jew’s agent like a day-worker does, for the reason explained in sec. 244[:1].)54

Nevertheless, because of the impression that might be created, [the Jewish owner] must admonish the non-Jew [for working on Shabbos]. For one who sees the non-Jew working on Shabbos in a field belonging to a Jew will not think that he was hired for a year, but rather that he was a day-worker.

[True, our Sages] said55 that there is no prohibition against leasing a field because of the impression it creates, because it is common for the majority of people to lease out a field under a share-cropping agreement. This [leniency], however, applies [only] when it reflects the truth — that the non-Jew who is working has a share in the produce of this field like a share-cropper does. Indeed, [his rights] are greater than those of a share-cropper, because the field is leased out to him and all the produce belongs to him. He gives the owner of the field only a designated amount. Therefore, when [other Jews] see [the non-Jew] working on Shabbos, they will assume that he is a share-cropper and he has the right to a portion of the produce of the field and hence, he is working for his own self-interest. At the time of the harvest, they will investigate whether this in fact is true, and they will discover that in fact he has a right to the produce of the field.

In contrast, when a non-Jew is [merely] hired for the year, when they investigate at the time of the harvest, they will see that he has no rights to the produce of the field. Thus, retroactively, it will become clear to them that he was not a share-cropper and they will say that he was a day-laborer.

Nevertheless, if the field is outside the town’s Shabbos limits,56 there is no reason to forbid [the non-Jew from working] because of the impression that would be created, as will be explained in sec. 244[:3].57 Consult that source.

9 The laws applying to a mill are the same as those that apply to a field. One may rent out such a concern to a non-Jew for a year or a month with the understanding that he will operate [the mill] whenever he desires and take all the profits for himself, giving the Jewish [owner] merely a fixed amount [as rent]. The non-Jew may work, even on Shabbos. There is no concern about the [undesirable] impression that could be created, because it is common for the majority of people to lease mills out under a profit-sharing arrangement58 as is done for fields.

An oven, by contrast, is governed by the laws applying to a bathhouse, i.e., it is forbidden to lease it out to a non-Jew for more than the six weekdays, for an [undesirable] impression will be created [maris ayin] if the non-Jew will operate it on Shabbos: People will say that he is a day-worker, because it is the ordinary practice for an oven to be operated by a day-worker and not to lease it out or enter into a profit-sharing arrangement, for, like a bathhouse, the expenses are high and the profits are minimal.

Nevertheless, everything depends on the prevailing local practice: In places where the practice of most of the inhabitants of a town is to lease out an oven or a bathhouse, or to enter into a profit-sharing arrangement and not to have them operated by day-workers, it is permitted to lease them to non-Jews or enter into a profit-sharing arrangement. And in places where the practice of most of the inhabitants of a town is not to lease out a mill or to enter into a profit-sharing arrangement concerning it, but rather to have them operated by day-workers, it is forbidden to lease them to non-Jews or enter into a profit-sharing arrangement with them.

10 Even in places where the practice of most of the inhabitants of a town is not to lease out a bathhouse, an oven, or a mill, or to enter into a profit-sharing arrangement, nevertheless, if there is an individual there who does lease them out or enters into a profit-sharing arrangement year after year until it became public knowledge that his practice is not to hire workers, but rather to lease out these concerns or enter into a profit-sharing arrangement, he may lease out such a concern to a non-Jew or enter into such a profit-sharing arrangement with him.

11 Even in a place where it is permitted to lease out a bathhouse, a mill, or an oven to a non-Jew for more than the six days of the week, [the Sages] permitted [the owner] to receive a fee for the Shabbos day only if he leased it to him on Shabbos together with the other days, e.g., he rented it to him for a year or a month, telling him: “Give me such-and-such an amount for every week,” or even, “Give me such-and-such an amount for every three-day period,” or “…for every two-day period.” 59 Thus he did not lease out the Shabbos day as an independent entity, but included it with other days.

Thus, when the non-Jew pays him the rent, he pays a specific amount for each week, or for each three or two-day period. Thus he does not pay him rent for the Shabbos day separately, but only as combined with another day.

12 If, by contrast, he leased it out to him for individual days, saying: “I am leasing out [the concern] to you for a year…” or “…for a month. Pay me such-and-such [an amount] for each day,” the Shabbos day is being rented to the non-Jew as a distinct entity, for each day is considered a separate rental period (and [the contract] can be abrogated in the middle of the year or the month.) Therefore, even if the non-Jew pays [the rent] for all the days together, [the Jewish owner] is forbidden to take the rent due him for the Shabbosos. For the non-Jew makes a reckoning with him according to the individual days and pays him for each day individually. Thus [it is considered that] he is paying for Shabbos independent of the other days rather than in combination with them, and it is forbidden to take “Shabbos earnings,” when they are not combined with those of other days. [For our Sages forbade] earning money on Shabbos as a decree, lest one engage in commercial dealings [on Shabbos].60

13 In places where it is forbidden to lease out a bathhouse, an oven, or a mill to a non-Jew [only] because of the [mistaken] impression that will be created,61 if one transgressed and leased out such a concern, it is permitted for [the owner] to receive the entire rent from the non-Jew. Since he did not violate a prohibition forbidden by the letter of the law — only one stemming from the impression it creates — he is not penalized.

14 Even in such locales where it is permitted to lease out a bathhouse, an oven, or a mill to a non-Jew,62 one should not conclude such a rental arrangement on Friday, but [should do so] beforehand, as will be explained in sec. 246[:2]. See the rationale offered there.63

15 Even in places where it is forbidden to lease out a bathhouse, an oven, or a mill to a non-Jew, the prohibition was applied only when these concerns are known to be owned by a Jew, i.e., it is well known and common knowledge that they belong to him, because they saw him working there many times during the week. If, however, a Jew bought a bathhouse, an oven, or a mill from a non-Jew and never operated the concern, but instead, immediately leased it out to another non-Jew, [the arrangement] is permitted, for it was never known that the concern was owned by a Jew. Hence, there is no concern regarding the impression that might be created.

16 Similar [laws apply] if a Jew owns a house in another courtyard in which he does not dwell and there is a bathhouse in that house. If it is not the practice of any Jews to bathe in that bathhouse during the week, only those whose homes neighbor upon that house, it is permissible for him to lease it out to a non-Jew or enter into a profit-sharing arrangement with him. There is no concern about the impression that might be created, since anyone who does not bathe there during the week is unaware that the bathhouse belongs to a Jew. For [the bathhouse] stands in the courtyard independently, no Jews dwell in that courtyard, and the neighbors of the bathhouse who bathe in it during the week know that the non-Jewish [operator] was not hired as a day-worker by the Jew, whereby all the fees paid for bathing would be given to the Jewish [owner] by the non-Jew. Instead, [the Jewish owner] either rented it to [the non-Jew] or entered into a profit-sharing arrangement with him. Thus, all the fees paid for bathing belong to the non-Jew.64

If, however, it is the practice of any Jew who is not a neighbor of the bathhouse to bathe there during the week, since he enters and departs [on a semi-frequent basis, it can be assumed that] he knows that it belongs to a Jew. Afterwards, if he sometimes passes by on Shabbos and sees non-Jews bathing there, he will have suspicions concerning the Jewish owner of the bathhouse. He may say that the non-Jew who operates the bathhouse on Shabbos is a day-worker, hired by the Jewish [owner, which is prohibited].65