Shulchan Aruch: Chapter 245 - Partnership Arrangements between Jews and Non-Jews

SECTION 245 Partnership Arrangements between Jews and Non-Jews (1-19)

1 [The following rule applies when] a Jew and a non-Jew receive a field in partnership1 [under the condition that] both are responsible to work the field: plowing, sowing, and performing all the other [necessary] agricultural tasks. At harvest time, each will receive a share of the produce in return for his work.

[In such an instance,] the Jew may not tell the non-Jew: “Work [alone] on the Shabbasos and at harvest time take your share of the produce for your work, including the work that you [alone] performed on the Shabbasos. In exchange, I will work [alone] on a [given] weekday, and take my share of the produce for my work during that weekday.”2 [True,] the non-Jew’s intent when working on Shabbos is for his own benefit, and [ordinarily] it is permitted to tell a non-Jew: “Work on Shabbos for your own benefit,” as will be explained in sec. 307[:35].3 Nevertheless, [such an arrangement is forbidden in this instance,] because the work of the field for each individual day is incumbent on both of them — half of the day on [the Jew] and half of the day on [the non-Jew]. Therefore, when the Jew tells the non-Jew to work the entire Shabbos day,and in return, he will work an entire weekday, it is equivalent to hiring a worker to perform work on Shabbos in his stead.

2 Even when the Jew does not tell the non-Jew anything, and the non-Jew works [alone] on all the Shabbasos on his own initiative, and the Jew works [alone] during the week to compensate (doing so as part of an unspoken agreement, without explicitly stating that he is doing so to repay the non-Jew for working for him on Shabbos), it is forbidden for the Jew to [demand an equal share of the produce when it is divided]. He may not enter into a reckoning with the non-Jew when the produce is divided, saying: “Let us divide it equally, for in return for every Shabbos that you worked [alone], I worked [alone] a day during the week.” For with this statement, he reveals his intent: that when he worked an entire day during the week, half [the day’s work] is on behalf of the non-Jew, to repay him for working half a day for him on Shabbos. Thus the [extra] work performed by the non-Jew on half the Shabbos day is identified with [the Jewish partner. Hence, the Jewish partner] is receiving payment for Shabbos without it being combined with other days. For, [when making the above reckoning,] he explicitly mentioned the [work on] Shabbos. Instead, he should allow the non-Jew [to make the division himself, for] perhaps the non-Jew will desire to take [the portion for] all the Shabbasos that he worked alone for himself, and then divide the remainder equally.4

If, however, on his own accord, without the Jew making a reckoning with him, the non-Jew agrees to divide [the produce] equally with the Jew, without counting the weekdays against the Shabbasos, or even if the non-Jew sets aside a portion for the Shabbasos that he worked [alone], and includes in the Jew’s portion the weekdays on which he worked alone— then, as long as he is acting on his own, without the Jew making a reckoning with him, there are authorities who permit [the Jew to accept the portion set aside for him].5 Since the Jew did not explicitly state that he deserves a portion in the work [he performed in exchange for that] performed by the non-Jew on Shabbos, it is not [considered] payment for Shabbos at all.6

There are authorities who forbid [the Jew to receive the full amount for the day he worked alone] in both the above situations, for the reason [soon to] be given.7 Fundamentally, the halachah follows this view. Nevertheless, if a significant loss is involved, one may rely on the authorities who grant permission [for the produce to be divided equally].

3 If, initially, at the time [the two partners] receive the field, the Jewish [partner] stipulated with the non-Jewish [partner] thatthe Jewish [partner] will have no responsibility at all to work the field on Shabbos and it will be the non-Jew’s responsibility alone, and on one day during the week, the entire responsibility [for that day’s work] will be the Jew’s alone, the arrangement is permitted. [The rationale:] Since at the time [the Jew] accepts responsibility to work the field, he stipulated with [the non-Jew] that he will have no responsibility at all on Shabbos, the Jew has no portion in the field at all on Shabbos. Instead, the entire responsibility [for working the field] on Shabbos is solely that of the non-Jew;8 the non-Jew is [thus] not doing anything at all for the Jew.9 [Conversely,] on one day during the week, the entire responsibility [for working the field] is incumbent solely on the Jew.

Therefore, it is permitted for [the Jew] to later enter into a reckoning with the non-Jew, calculating the number of weekdays that he worked alone, in relation to the number of Shabbasos that the non-Jew worked alone, and divide the produce equally between them. [For the Jew] is not considered to be taking payment for [working] on Shabbos, rather for [working] on a weekday.

4 [Similar laws apply] when a Jew and a non-Jew are partners in [performing] a task or in [selling] merchandise in a store.10 If, initially, when they established their partnership, they stipulated that the profits from the Shabbos day, whether large or small, would belong to the non-Jew alone, and, correspondingly, the profits from one of the weekdays would belong to the Jew alone, [the agreement] is permitted,11 because of the reason explained [in the previous subsection]. Even if the non-Jew decides afterward to divide the entire profits equally, there is no difficulty; he is simply giving [his Jewish partner] a present.

[A difficulty can, however, arise] if they engage in a reckoning afterwards,12 i.e., the non-Jew tells the Jew, “On the weekday, you took for yourself a maneh,13 while on Shabbos, I took [only] 90 zuz.14Compensate me until we have equal shares.” How much more so is this true if the Jew makes similar statements to the non-Jew! [In such cases,] it becomes patently obvious that the stipulation they made initially — that the profits from the Shabbos day, whether large or small, would belong to the non-Jew alone — was nothing but legal fiction. Instead, the non-Jew worked on Shabbos for the sake of the Jew as well, and for that reason, the Jew worked during the week for the sake of the non-Jew. Therefore, afterwards, they divide [the profits] equally. Thus, the Jew is also receiving payment for Shabbos — and he is not receiving it in combination [with payment for other days], for [the non-Jew] explicitly mentioned [the profits of] Shabbos to him. He must therefore allow the non-Jew — if the non-Jew so desires — to take as his own [all] the profits for all the Shabbasos. Afterwards, they divide [the remainder] equally.

5 When does the above apply? When the [profits for] Shabbos are a known amount. If, by contrast, [the amount earned on Shabbos] is not known, [the Jewish partner] may divide the entire profit equally with [the non-Jew. The rationale:] He made a stipulation that he alone will receive the profits of one [week]day in return for the profits of Shabbos that the non-Jew alone will receive. It can be assumed that the profits of any one day are equivalent to those of another. Therefore, they may divide all the profits equally.15

6 [The following laws apply] if such a stipulation was not made originally, at the time the partnership was established, and even after the partnership was established, the Jewish [partner] did not [explicitly] tell the non-Jew that he should operate the concern on Shabbos, and [in return, the Jew] would operate it one day during the week.16 Instead, the non-Jew operated the concern alone on Shabbos on his own initiative, and the Jew operated it alone one day during the week (without explicitly stating that he was operating it alone [on this day] in return for the non-Jew having operated it alone on Shabbos). If, afterwards, on his own accord, the non-Jew agreed to divide all the profits with him equally, without the Jew making a reckoning with him and the non-Jew also not mentioning [his work on] the Shabbasos at all, but rather, he made a division without any [mention of individual days],17 there are authorities who permit [the Jewish partner to receive an equal share. The rationale:] There is no prohibition [because] of payment being received for the Shabbos, for [the Jewish partner] is accepting it in combination with payment for the other days.18

There are authorities who forbid [making an equal division of the profits in the above instance]. They require [the Jewish partner] to leave the profit from the Shabbasos for the non-Jewish partner alone; if the profit for the Shabbos is not a known entity, he should allocate for him one-seventh of the [total] profit. The remainder is then divided among them equally. For if the Jewish [partner] would divide all the profits with [the non-Jew] equally, [the Jewish partner] would be benefiting from the Shabbos profits.19 Thus, retroactively, the Jewish [partner] would have a share in the work performed by the non-Jew on the Shabbasos, and the non-Jew [would be considered as having] worked for him, as if he were his agent.20

Fundamentally, the halachah follows this [more stringent] view, unless a significant loss is involved. In such a situation, one may rely on the first opinion, as was explained.21

7 [Greater leniency is allowed] if [a Jew and a non-Jew] partnered in a concern that did not require any actual work on their part. For example, they were co-owners of an oven, [and the common practice was that] whoever [wanted to bake in it would himself] heat the oven and bake, and then pay [the owners for its use]. Thus, neither of them was obligated to heat the oven; only the task of receiving payment was incumbent on both of them equally.22 Even though at the time the partnership was established, a stipulation was not made that the tasking of collecting the fees on Shabbos would be incumbent on the non-Jew alone — he would take for himself the profits of Shabbos, whether large or small, and [correspondingly,] the profits from one of the weekdays would belong to the Jewish [partner] alone — should the non-Jew agree on his own initiative at the time the profits were being divided that all the profits should be divided equally, all authorities agree that it is permitted [for the Jewish partner to receive an equal share. Such a division is permitted] provided the Jewish [partner] did not [explicitly] tell the non-Jewish partner to work alone on Shabbos to collect the fees, and that, [in return,] the Jewish [partner] would work alone one day during the week, but rather on his own accord, the non-Jew worked to collect fees on Shabbos, and the Jewish [partner] performed that task alone one day [during the week. The rationale:] In this instance, it is inaccurate to say that the Jewish [partner] retroactively had a share in the work the non-Jew performed on the Shabbasos, andthe non-Jew worked for him, since the non-Jew did not perform any forbidden labor at all.23 All he did was collect payments for Shabbos. [Additionally,] the Jewish [partner] received [his share] of that payment in combination with [the profits of] the other days.24

8 [Similarly, leniency may be shown] even if [a Jew and a non-Jew] partnered in a concern that required work to be performed [on Shabbos], provided the Jewish [partner] does not work during the week to compensate for the non-Jew’s work on Shabbos. Instead, during the weekdays, they perform an equal amount of work, either both of them together, or each one working half a day, or this one, one day, and the other, the next, with the exception of Shabbos, on which the non-Jew works alone. Under these conditions, all authorities agree that the Jewish [partner] is permitted to divide all the profits equally with [the non-Jew. After all,] the Jewish [partner] does not repay the non-Jew at all for his working on Shabbos, because he does not work at all during the week in order to compensate him [for having worked alone on Shabbos]. Therefore, when the non-Jew works on Shabbos, he does so strictly for his own benefit — in order to earn more profit. He is not considered the agent of the Jewish [partner], because he is not doing anything for him at all. Although ultimately, the Jewish [partner] benefits from [the non-Jew’s] work — for he divides [the profits] equally with him — this is of no consequence. For the non-Jew did not intend to benefit the Jewish [partner], but [worked] for his own benefit.25

Nevertheless, [the Jewish partner] must be careful to divide the profits from Shabbos only when they are combined with [the profits] of the other days. True, according to the letter of the law, there is no prohibition here with regard to the profits of Shabbos, because the Jewish [partner] has no share in the work [performed] by the non-Jew on Shabbos. Even though he divides the profits [of Shabbos]equally with him, the [non-Jew] is [merely] giving him a present. Nevertheless, it is appropriate to prohibit [the Jew from accepting the profits from Shabbos separately,] since it appears that he is receiving [a share in] the profits from Shabbos,because he owns a portion of the concern in which the non-Jew performed work on Shabbos.

9 Similar [laws apply when] a Jew is the sole owner of an oven and [enters into an agreement] with a non-Jew concerning it,26 stipulating that [the non-Jew] heat it and bake for anyone who desires to bake. [The non-Jew and the Jewish owner] then divide the profits day by day. [The Jewish owner] may also divide the profits from the Shabbasos with him, when that is done in combination with [the profits of] the other days. For, by working on Shabbos, the non-Jew has his own benefit in mind. He is not considered as the Jew’s agent, since the Jewish [owner] need not perform any work at all; all the work is the responsibility of the non-Jew alone. [Moreover,] the Jewish [owner] does not tell him to work on Shabbos;27 [the non-Jew] is doing so on his own, for his own benefit, and the Jewish [owner] benefits as a matter of course.

Nevertheless, as an initial preference, [the Jewish owner] should not allow the non-Jew to operate his oven on Shabbos except in those places where it is permitted to lease out an oven to non-Jews, and the non-Jews operate the oven(s) even on Shabbasos. We are not concerned about the impression that might be created [in such places], for the reason explained in sec. 243[:9].28 In other places, however, it is initially forbidden, because of the impression that might be created, as explained there with regard to rentals.

10 The same laws apply to a bathhouse, a mill, and a store.

If29 the Jewish [owner] does not divide the profits [earned from such a concern] for an entire period equally with the non-Jew, but instead, all of the profits of one day — whether large or small — belong to the Jewish [partner], and all the profits of another day — whether large or small — belong to the non-Jew, it is forbidden for the Jewish [owner] to receive the profits of one of the weekdays in return for those of Shabbos that the non-Jew took for himself.30For if [the Jew] will receive the entire profits of one of the weekdays in return for those of Shabbos, the non-Jew will have labored in operating the oven on one of the weekdays for the profits of the Shabbos that he took entirely for himself. Thus, the Jewish [owner] will have benefited from the [non-Jew’s] labor [on Shabbos]. Hence, he will have received profits for the Shabbos day that are not combined with those of other days.31

11 [In the above situation,] even if the [Jewish owner] initially made the stipulation regarding the profits of the oven with a non-Jewish [worker] before they established the partnership,32 it is [still] of no consequence,33 because such a stipulation is effective only when the non-Jew has a share in the actual [ownership] of the entity with which the work is being performed. Under such circumstances, when [the Jewish owner] initially stipulates that the profits from Shabbos will belong to the non-Jew alone, and the profits from another day will belong to himself exclusively, it is as if [the Jewish owner] is transferring his own portion of the entity to [the non-Jew], so that the entire entity will actually be owned solely by the non-Jew on all the Shabbasos, and, in return, solely by the Jewish [partner] on another day.

In the instance at hand, by contrast, the entire oven itself actually belongs to the Jewish [owner]. True, he made a stipulation with [the non-Jew] that the oven would belong to him alone on Shabbos. Nevertheless, he did not [make a stipulation that he would] completely transfer absolute ownership [of the oven] to [the non-Jew] on all the Shabbasos even if [the non-Jew] would not operate the oven during the week for the benefit of the Jewish [owner].34 Instead, he transferred ownership of it on the condition that [the non-Jew] operate it during the week in return for [the non-Jew’s ownership] on Shabbos. Thus, it is as if [the Jew] rented it to him on Shabbos in return for the non-Jew’s operation of it during the week.35 Accordingly, it is [as if the Jew is] receiving profit for Shabbos36 without it being combined [with those of the other days].

12 It is, however, permitted [for the Jewish owner] to (initially)37 stipulate that the non-Jew should take the profits for two or three days for himself, and, correspondingly, he will give [the Jewish owner] the profits for two or three other days. Although the Shabbos day is [included as] one of the days [for which] the non-Jew takes [the profits for himself], and, correspondingly, the Jewish [owner] receives [the profits for another day], nevertheless, there is no prohibition resulting from payment for the Shabbos, because it is combined with that of another day.

Nevertheless, this stipulation is only effective when [the Jewish owner] transfers ownership of a share of the actual oven itself, i.e., on those days that include the Shabbos, the oven will be owned by the non-Jew [and not just the profits]. Thus, he is performing work with his own oven, and he does not appear as the agent of the Jewish [owner].

If, however, [the Jewish owner] did not transfer to him ownership of a portion of the actual oven, it is forbidden for [the Jewish owner] to tell [the non-Jew] to take the profits for the days that include Shabbos in return for heating the oven during the weekdays. Since he is heating an oven belonging to the Jewish [owner] on Shabbos, and the Jewish [owner] profits from his heating it on Shabbos — for if the non-Jew did not heat it on Shabbos for himself, he would not heat it for the Jewish [owner] during the week38 — it appears that he is heating the oven on Shabbos for the Jewish [owner, thereby] acting as his agent, because he instructed him to operate [the oven] on Shabbos.39

13 Even when the work [of operating the concern] is also incumbent on the Jewish [partner] — e.g., he and the non-Jew are partners in [the ownership of] the oven, the bathhouse, the mill, the task, or the merchandise of the store [and they are both equally responsible for its operation] — making a stipulation initially to prevent [the equal division of the profits from being] prohibited is only necessary when [the Jewish partner] works alone one day during the week and takes all the profits for that day for himself to compensate for the Shabbos on which the non-Jew works alone.40

If, however, [the Jewish partner and the non-Jew] both work and are remunerated equally during the week, [the Jewish partner] may hire out all of the Shabbasos to the non-Jew by combining them with the other days, i.e., the non-Jew will work alone two or three days and take all the profits — whether large or small — for himself, and will pay the [Jewish partner] a fixed amount for these two or three days. Although the Shabbos is included among them, this is of no consequence, for the Jew is not instructing the non-Jew to work on Shabbos. Instead, [the non-Jew] does so on his own initiative, for his own benefit.

Even in places where it is forbidden to rent an oven, a bathhouse, or a mill to a non-Jew because of the impression that may be created,41 [an exception is made] in the present situation. Since the non-Jew is a partner [together with the Jewish owner], there is no concern about the impression that may be created, for everyone knows that the non-Jew has a share in this undertaking, and that he is concerned with his own benefit. For this reason, wherever a partnership with a non-Jew is permitted, license is also granted for the non-Jew to perform [the necessary work] in public; there is no concern with regard to the impression that may be created.42

14 Similarly, [a Jewish partner] can hire his non-Jewish partner as a contractor, i.e., the non-Jew will also perform the work necessary for the portion of the Jewish [partner, stipulating] that for such-and-such an amount of profit earned as [the Jewish partner’s] portion, he will pay [the non-Jewish partner] this-and-this amount, provided the Jew does not tell him to perform work on Shabbos. Instead, he should tell him: “Whenever you bring in such-and-such an amount of profit for my portion, I will give you so-much-and-so much.” The non-Jew then may work for his own benefit even on Shabbos, as explained in sec. 244[:12]. No prohibition is involved, not even one resulting from the impression that may be created, for, [as explained in the previous subsection,] since in this instance the non-Jew is [the Jew’s] partner, there is no concern about the impression that might be created.

15 In all situations where a stipulation would be effective [in enabling a non-Jew to operate a concern on Shabbos],43 if [such] a stipulation was not made initially at the time the partnership was established, the matter may be corrected [in the following manner: The Jew and the non-Jew] should nullify the [previous] partnership and waive all the existing conditions between them. They should then reestablish the partnership and make the [appropriate] stipulations at that time.

If they established a partnership with regard to [the merchandise in] a store and did not make an initial stipulation, each one should take back his portion [of the merchandise] and thereby nullify their partnership. Afterwards, they should reestablish their partnership and make the [appropriate] initial stipulation.

If they purchased a field in partnership and did not make an initial stipulation, they should ask the seller to return their money to them. Then they should repurchase it from him and perform a new kinyan44 and make the [appropriate] stipulation at the time of the purchase. (See Choshen Mishpat, sec. 194, with regard to the [manner of] acquisition [of property by and from] a non-Jew. See also [Choshen Mishpat,] sec. 189.)45

16 It is permitted to give a non-Jew merchandise to sell or money to do business with.46 Even though the non-Jew does business with these [resources] on Shabbos,47this is not of consequence, since the Jewish [investor] did not tell him to engage in business on Shabbos.48[The Jewish investor] must, however, determine a fixed fee for the non-Jew for his efforts or give him a share of the profits that he will receive. In such a situation, [the non-Jew] intends to work on Shabbos for his own self-interest, to increase his profits.49 The Jew benefits as a matter of course,50 when he also receives the profits from Shabbos in combination with those of the other [week]days.51

Such a relationship need not be forbidden out of concern for the impression that might be created, i.e., that people will say that he is the agent of the Jewish [investor], because not everyone is aware that this money or this merchandise belongs to the Jew.

17 When does the above apply? When the Jew[ish investor] is not responsible at all for any of the actual work; [the responsibility] rests on the non-Jew alone. In such a situation, the non-Jew is not [the Jew’s] agent to perform work on Shabbos, since the Jew has no responsibility [to perform work] at all.

Alternatively, [the leniency applies] even if the Jew is also responsible for the work, but he does not operate [the business] alone on one of the days [of the week] in compensation for the non-Jew’s operation [of the business] alone on Shabbos. Since the Jew does not repay anything to the non-Jew for his operation [of the business] alone on Shabbos, the non-Jew’s sole intent when operating [the business] on Shabbos is for his own [benefit] and not for that of the Jew. [Hence,] he is not considered as the Jew’s agent.52

If, however, [the Jewish partner] operates [the business] alone one day [during the week] to compensate for the day of Shabbos on which the non-Jew operates [the business] alone, the non-Jew [is considered] as the agent [of the Jewish partner].53 There is no way [the Jewish partner] can rectify the matter except by not benefiting at all from the non-Jew’s actions on Shabbos, i.e., all the profits from Shabbos should be left for the non-Jew alone. The only exception is when there is a great loss involved. One may then rely on the opinion of the authorities who permit one to benefit from the profits of Shabbos, provided they are combined with those of the other days, as has been explained.54

18 When a Jew takes an oven as security [for a loan],55 and [its] non-Jewish [owner] agrees that whatever profit the oven then earns will be paid to the Jewish [lender] as interest for his money, it is permitted for [the Jewish lender] to accept even the profits of Shabbos. [The leniency applies] even [when the profits of Shabbos are given] without being combined with those of the other days. [The rationale is:] The oven itself belongs to the non-Jew, and the Jew does not have a portion in it at all. Moreover, the Jewish [lender] is not instructing [the non-Jew] to operate [the oven] on Shabbos. Instead, the non-Jew is acting on his own initiative, for his own benefit, in order to pay his debt, for he obligated himself to pay the oven’s profits to the Jewish [lender] as interest for his money.

19 If non-Jews baked in an oven belonging to a Jew on Shabbos against his will, but paid him for the use of the oven, it is forbidden for the owner, or any other Jew, to benefit from [that money] forever, because the fee [paid] constitutes Shabbos profits.