The following article is a proposal for businesses that must operate on shabbos and are owned by Torah observant people. It addresses the special halachic challenges faced by these companies and offers a halachically and legally valid format to solve those problems.
Modern commerce presents many challenges to the shomer shabbos businessman who wants to participate in certain industries while respecting the sanctity of Shabbos. Many common investment opportunities involve situations that, without carefully restructuring, violate both the Laws and the spirit of Shabbos.
Two specific fields that are especially susceptible to the challenge of shmiras shabbos are real estate and nursing homes. These facilities require around the clock, 24/7 tending to the needs of tenants or patients. An owner must provide necessary services on Shabbos. If a boiler blows, or a snowstorm hits, the tenants will not wait until after Shabbos for service. Obviously, none of those shomer shabbos owners would dream of running the company on shabbos themselves. Rather, they employ gentile employees who provide necessary services for the day. However, this in itself does not solve the problem. The prohibition of amira l’nochri does not permit one to hire a gentile worker to do any act of melacha of shabbos on behalf of the employer. For example, turning on lights in hallways or the necessary fixing of an elevator are obvious melachos of shabbos. Although the management company is by contract obligated to carry out those services in a timely fashion, it cannot let the gentile employees do it on shabbos.
Even the operation of a sales office on shabbos that does not involve melachos per se, is an act of chilul shabbos. The Ramban (shmos 12:16)states that conducting business as usual on Shabbos as one would on a regular weekday violates the de’Oraisa principle of shevisah, the biblical obligation to rest on Shabbos.It is for this reason that Nechemyah (13) described the inhabitants of Yehudah who engaged in regular business on Shabbos as mechallelei Shabbos, people who were desecrating Shabbos, even though they did not violate any actual Melachah. Thus, one may not hire Gentile employees to manage a business on shabbos.
Generally, the rule of amira l’nochri is considered a shvus, a rabbinic prohibition. However, based on an interpretation of the mechilta quoted by the bais yosef (orach chaim 234) many opinions agree that it is an issur de’Oraisa to have a melachah done by a Gentile on Shabbos, on the Yisrael’s premises and on his behalf. Furthermore, the Aruch Ha’shulchan (orach chaim 243:10) characterizes shvusei shabbos, the rabbinic prohibitions of shabbos, similar level to issurei de’oraysa. Because of the severity of these Isurim, Chazal were especially stringent aboutmaris ayin on Shabbos as well. Even if an employer might meet the halachic standards that permit the Gentile doing work for the yisrael’s benefit, Chazal prohibited many instances where the Jewish employer may be suspected of having told the Gentile to work on Shabbos.
The severety of a shvus on shabbos is also illustrated by the fact that although the concept of maris ayin is not limited to Shabbos, it ordinarily applies only to issurey de’oraysa but not to an issur de’rabbanan as evident from yore deah (77:3, see shach 6). The exceptions to this rule is the maris ayin of shabbos. As Harav Moshe Feinstein points out in Igros Moshe (orach chaim 3:50), the halachah is particularly strict about maris ayin on Shabbos when it involves an action done on a regular basis by a Gentile for a Jew, since an action of even an issur de’rabbanan of Shabbos - like the Jew who hired the Gentile – labels the yisrael as a mumar le’challel Shabbos, similar to the mechalel shabbos de’oraysa
The most common method used by shomer shabbos companies to circumvent chillul shabbos is a pro forma sale of the company to a Gentile, known as heter mechirah. In it, the owner of the business sells or rents his business to the gentile for shabbos and Yom Tov. For all practical purposes, the Jewish owner retains legal responsibility for all operations of the company. This arrangement is, by nature and character, a haarama and, since its inception in the nineteenth century, was disliked by many poskim, especially since Chazal are extremely strict about the maris ayin factor on Shabbos.
A well known halachic precedent for this arrangement seems to be the yearly practice of mechiras chametz, where the Yisrael sells his chametz to a Gentile. In fact, selling Chometz is fundamentally different and cannot be used as a justification of the Heter Mechira for Shabbos. The sale of chametz is part of the bitul chametz process in which the Yisrael wishes to abandon his chametz. In contrast, the intention of the sale of the business for Shabbos is its continued operation.
Another precedent used to bolster the Heter Mechira is the arrangement described in shulchan aruch (orach chaim 246:5) where a Jewish and Gentile partner own an animal. If the Gentile wishes to work with this animal on shabbos – in spite of the partners protest,- the partner may sell his share to the Gentile. In this case as well, the Yisrael would prefer that the animal rest on shabbos.
The precursor of the heter mechira is an agreement, formulated by Rishonim and cited by the Rema (orach chaim 244:6). Among the limited business opportunities for Jews in medieval times was the opportunity to collect tolls and taxes. Tolls on roads or bridges had to be collected every day of the week, including Shabbos. In other situations, the minting of the king’s coins was entrusted to a Jew, who by law had to run the production on Shabbos as well. Among the suggested arrangements in such situations was to lease the rights of the production to a Gentile such that the Gentile would have full control of the business on Shabbos, and all the profits accrued on that day would be his.
The poskim agreed that these arrangements were not meant as a permanent system and should be applied only in extraordinary circumstances similar to those that had compelled the Rishonim to permit it. As such, the heter mechira as applied to keeping businesses open on Shabbos became a strongly contested issue. (An excellent historical and halachic treatise on this subject can be found in Harav Gedalyah Felder's Yesodei Yeshurun, Vol. III.)
Recent Poskim, as well, such as Harav Moshe Feinstein (Igros Moshe, Orach Chaim 2:64) and Harav Yaakov Breisch (Chelkas Yaakov 69), write that heter mechirah was meant only as a heter bisha'as hadchak, in times of limited economic opportunities, and advised that heter mechirah should not be applied in modern Western society.
Now, the purpose of this article is not to say that service oriented businesses like management companies or nursing homes have no choice other than a heter be’shaas ha’dchak on shabbos. To the contrary, the modern legal system of corporations offers opportunities for companies that must operate on Shabbos to manage their businesses without the need for a heter mechirah.
In fact, on a philosophical note it might be argued that an essential part of the test of golus is the ability to survive the disadvantageous conditions for shmiras ha’tora. Golus necessitates haarama and none less then Yaakov avinu turned to practices of haarama to defy lavan ha’arami. In that instance, haarama disproved sheker and became a tool to further emes. However it is certainly a positive sign for geulah if halacha can be observed without any element of haarama.
The format of this article is not to explain the many specific legal issues that a particular business may face. The purpose is to introduce a Halachic proposal that interested parties may further explore with pertinent halachic and legal experts.
The principal design is the founding of a separate management company (called AKUM), completely owned by Gentile(s), that is responsible to the Jewish owners of the property or Home (called A), for the active running of the management. Company Akum hires all necessary workers and all legal responsibilities are between the employees and company Akum. By contract, all necessary funds for Akum are provided by A, with the explicit abolition of any obligation on company Akum to perform any halachicaly prohibited actions on shabbos or yom tov. A sign, prominently placed on the premises states that all personnel on the premises is employed by company Akum which also provides all services on the premises. In addition, Akum is renting the premises with inventory from A for a nominal fee.
In order to understand how this mechanism resolves the Halchic issues in a manner that avoids the Haramah of a Heter Mechita, we must familiarize ourselves with some halachic principles regarding m’leches nochri on shabbos.
Generally speaking, there are two types of workers: the po’el – a worker who must work at set times; and the kablan, who may do the job at his own pace, although, requested to complete his work by a certain deadline. For example, if a mechanic is a po’el, the employer cannot let him do work on Shabbos even if the worker was not told to work on Shabbos. The po’el is the employer’sextended hand; thus it is consideredas if the employer himself is violating shevisas shabbos.
On the other hand, a kablan, an independent contractor, is working for himself, and, is not considered the employer’s substitute.As long as he is not obligated to work specifically on Shabbos and he should, in principle, be permitted to do the job on Shabbos.
There are however different concerns that limit the possibilities of the Jewish employer to engage a kablan/contractor. For instance, a business may not be operated by a kablan, if its operation on shabbos is the very reason for the Jewish owner’s benefit. The halachic precedent is a bathhouse that charges the customer for each individual visit. Income from people's visits on shabbos cannot be substituted with another day's income. Therefore, according to many halachic opinions – including the mishna berurah(353:10) relieving the kablan/operator from any obligation working on Shabbos will not make the arrangement permissable. Since operating this business on shabbos is necessary in order to gain the profit for this day it is as the Gentile is working on shabbos behalf the Jewish employer. A comparable case is a parking lot that charges daily or hourly rates, which must operate on Shabbos in order to make its profit for that day. Although the contract with the manager clearly states that he has no obligation to manage the premises on shabbos it is still considered that the manager is working on shabbos on the owner’s behalf. This is in contrast to a salesman, who earns a commission for selling the merchandise but does not have to sell his merchandise on Shabbos. In this case, there is no specific need to work on Shabbos in order to generate these profits. Although the merchandise is clearly identified as owned by the Yisroel, the salesman’s sale on shabbos is not a necessary condition for this profit.
Another condition that must be met by the kablan is that he cannot do any work where the Jewish employer may be suspected of having told the Gentile to work on Shabbos. This the principle of a maris ayin.
The concern for maris ayin applies if the kablan works on the Yisrael’s premises, or, even if the job is not done on the Yisrael’s premises but the worker is not known as a kablan and the job was clearly ordered by the Yisrael. For this reason, a Jewish-owned management company cannot allow a kablan to do repairs on the company’s premises, although told that he is not required to work on shabbos. But a person is permitted to leave his car with a mechanic to have repairs done in the mechanics shop, since mechanics are generally kablanim.
An instance where the employment of a kablan is a concern is in industries that generally employ a po’el, since people could assume that the person doing the work is a po’el. This principle was grounds for a major halachic controversy in the times of the Rishonim and still has significant practical relevance in our times.
Then, construction was typically done through companies that would commit to meet certain deadlines, but were not obligated to work at set times. This fits the halachic definition of a kablan. Therefore, it was the opinion of Rabbeinu Tam that it is permissible to hire Gentiles as kablanim to build a house even if the construction is done on Shabbos as well. Nevertheless, most Rishonim argued, based on the assumption that people would still suspect that the workers are actually po’alim who are required to work on Shabbos, (and is therefore prohibited as a matter of maris ayin),or that people would see the workers and mistakenly assume that a po'el may work on Shabbos (and is prohibited me’ikar hadin). This difference of opinions is still addressed by the major more recent poskim, such as the Mishnah Berurah (Biur Halachah 244) and Harav Moshe Feinstein (Igros Moshe, Orach Chaim 3:35).
The stringency of this halachah might be further illustrated by the controversy between the poskim in a case where the contractor/kablan has his po’alim do the construction work. Numerous poskim – including the Mishnah Berurah (ibid) – rule that even such an arrangement is prohibited, unless it is widely known that the workers are employed by the kablan and that the person who hired the kablan is in no way involved in hiring the working force.
Generally, concerns of maris ayin can be corrected by announcing to the public that the matter is done in a halachically correct manner although the appropriate methods are a subject of halachic discussion. On a practical level it depends on the particular conditions of the maris ayin. For example, Rav Wosner in shevet halevi (9:50) rules that an ad in a newspaper is sufficient pirsum for matters of maris ayin.
It should be noted that the Mishnah Berurah (biur halacha ibid) writes, based on opinions of Rishonim, that it is preferable that even a well-known kablan not be hired to work on any publicly known Jewish assignment, if the work is to be done in a public place, since people who see him working might not be aware that there is any difference between a po’el and a kablan. According to these opinions, the prohibition concerning a kablan is not an issue of mar’is ayin but an issur me’ikar ha’din, as chaza’l in this case do not differentiate between the po’el and the kablan. Obviously, matters that are prohibited me’ikar hadin, are not permitted by any sort of pirsum. Therefore, in the case of a worker on shabbos where people might confuse between a kablan and the poel, the pirsum will not relieve the prohibition of a kablan if this is an issue me’ikar ha’din. However, many other contemporary poskim, as the Igros Moshe (ibid) differ with that ruling and consider those as a minority opinion.
Now, from all the above it is clear that service based business, like nursing homes or management companies, cannot let employees that are po’alim do any m’leches shabbos. However, the Jewish-owned management company (A) may engage another Gentile-owned company (AKUM) to assume all legal responsibilities of management with the explicit abolition of any obligation on company AKUM to do any m’leches shabbos on behalf company A. As such, company AKUM is a kablan of company A. To avoid any mari’s ayin issue a sign prominently placed on the premises should state that all personnel on the premises is employed by company AKUM which also provides all services on the premises. In addition, AKUM is renting the premises including all inventory from A for a nominal fee which according to the mishna berura (sha’ar ha’ziun 252:17) relieves the issue of m’leches yisrael on the yisrael’s premises.
In the scenario of a real estate management company, it is advisable that the lease with the tenants obligates AKUM for all services of shabbos and yom tov. This establishes AKUM as an employee of the tenants without any employment of A. Nursing homes should consider creating an in-house nursing agency (AKUM) that is completely owned and run by Gentiles that assumes complete responsibility for all operations on the premises. A licensed head nurse might be an excellent candidate for this purpose. AKUM is explicitly not hired - and therefore not responsible to the license holder – to do any m’leches shabbos. The fact that the license holder is not relieving himself from his responsibilities to his clients and is still kept responsible by the authorities for all operations on the premises satisfies the demands of the authorities for an orderly standard of managing practices.
Shabbos both separates and unifies. It separates between the kodesh and the chol, between Yisrael and amim and so unifies Yisrael and Hashem. This recognition is a fundamental element of our emunah. The creation of legal entities that attach bney yisrael to shmiras shabbos by detaching amim from shevisa is a manifestation of this principle. May Hashem grant us the ge’ulah shlema in the merit of shmiras shabbos ke’hilchasa.