Story LineHoliday ChargeRabbi Meir Orlean
Mrs. Alter ran a service coordinating home visits for elderly and disabled people, paid for by Medicare. The service processed the billing and payments, withholding a percentage of the wages for its administrative work.
One of their clients was a counselor, Mrs. Stern, a traditional Jew. Before Sukkos, Mrs. Alter wished her a happy holiday.
"You, as well," replied Mrs. Stern. "A religious neighbor invited us to their sukkah the first night, Sunday. They also invited us for lunch on Monday, but I will be working. I scheduled one of my appointments then."
"You know, holidays are like Shabbos," Mrs. Alter said. "We don't work on holidays. The office will be closed."
"I don't need the office," replied Mrs. Stern. "I'll make my visit and file the papers afterward. Until when is the office closed?"
"It's closed entirely on Monday and Tuesday, this week and next, and operating on a limited basis for urgent work from Wednesday to Friday," answered Mrs. Alter. "Would you consider switching your appointment from Monday to Wednesday? Then you could celebrate the holiday instead of working!"
"I have other appointments on Wednesday," said Mrs. Stern. "Anyway, the woman I visit doesn't like when I switch days. It unsettles her. The truth is, we just talk."
"Unfortunately, Mrs. Stern plans to work on Yom Tov," Mrs. Alter said to her husband afterward. "I tried to dissuade her, but she didn't pick up on it."
"I wish that Mrs. Stern would observe Yom Tov, but it's her decision," Mr. Alter said. "We can't run her life or stop her from working. I wonder, though, whether we can process the billing and keep our percentage?" He called Rabbi Dayan.
Can the Alters process the billing for Mrs. Stern's work on Yom Tov? Can the service keep its percentage?
"Chazal prohibited receiving payment for work on Shabbos and Yom Tov," said Rabbi Dayan, "even if the work itself does not entail prohibited activities, such as being a babysitter, waiter, or counselor. This is called sechar Shabbos (O.C. 306:4).
The prohibition is primarily on the recipient, not the employer. Nonetheless, a Jewish employer violates lifnei iver when paying sechar Shabbos to a Jewish employee. Processing the billing would presumably also violate lifnei iver (Mishnah Berurah 306:21).
"Is there any leniency?" asked Mr. Alter.
"First, Chazal permitted sechar Shabbos when included in a broader payment (b'havlaah) for weekdays, such as a monthly salary," replied Rabbi Dayan. "Thus, if the worker has a steady job and receives a monthly salary, sechar Shabbos does not apply. However, if the worker files a separate bill for each visit, it is questionable whether it can be considered b'havlaah, even though the salary is paid for the entire month (Mishnah Berurah 306:19-20; Shemiras Shabbos K'hilchasa 28:64-65).
In addition, visits to elderly or disabled people can be considered a mitzvah, like medical needs, which many poskim allow taking payment for (O.C. 585:5).
Thus, it seems permissible for the service to process the billing for the nonobservant worker, in conjunction with certain leniencies in lifnei iver (beyond the scope of this article)."
"What about our percentage?" asked Mr. Alter
"According to most authorities, one may not benefit from prohibited sechar Shabbos," replied Rabbi Dayan. "However, if one mistakenly took, it is permitted post facto, since the prohibition of sechar Shabbos is Rabbinic (O.C. 245:6; Bi'ur Halacha 318:1).
"There are possible leniencies here of b'havlaah and mitzvah, as we mentioned earlier. Moreover, the service receives its percentage for the paperwork and administrative responsibilities, which it performs during the week, so that technically it seems permissible to keep your percentage. Nonetheless, since there is some concern of lifnei iver, it would be meritorious to distribute to tzedakah the percentage from Mrs. Stern's work on Yom Tov (see Aruch Hashulchan 245:18).
Ruling: Mrs. Alter may process the billing, if Mrs. Stern has a steady job, and also keep her percentage, but it is meritorious to distribute it to tzedakah.
From the BHI HotlineSukkah in a Common Yard
Q. My neighbor and I have a yard in front of our houses, with the entire area belonging to the two of us. I would like to build my sukkah there this year. Do I need his permission? And what if I build it without asking, and he protests – do I have to take it down, or may I leave it up and use it on Sukkos?
A. In the previous issue, we discussed whether a person can fulfill the mitzvah of sukkah if he built his sukkah in a place where he had no right to build it, focusing specifically on the halachos pertaining to the public domain.
In laying the groundwork for such cases, we learned that if a person “stole,” i.e., usurped a sukkah that is connected to the ground (mechubar l’karka) or he stole someone's property and built a sukkah on it, he can fulfill the mitzvah in it, because real estate cannot be stolen (Choshen Mishpat 371:1; Orach Chaim 637:3), for it cannot be removed from the owner’s property.
Some poskim rule, however, that although, b’d’ieved, eating in such a sukkah is not as bad as eating outside of a sukkah, one still may not recite the brachah of Leisheiv Basukkah in such a sukkah, and if he does, it’s a brachah l’vatalah (Magen Avraham ibid. 3 and Shulchan Aruch Harav ibid. 11; cf. Eliyah Rabbah 4 and Mishnah Berurah 10, who rule that if he has no other sukkah to use, he may recite the brachah).
Some maintain that if the person whose property the sukkah is standing on continues to protest even after it is built, the sukkah is considered stolen and may not be used even b’di’eved (Chazon Ish 150:22; most poskim seem to differ).
Obviously, the rulings we’ve discussed until this point don’t apply only to the public domain; it is similarly forbidden to build a sukkah on another person’s property without his knowledge, and certainly, if he protests, it cannot be used to fulfill the mitzvah of sukkah (Pri Megadim, Eishel Avraham 7; Shulchan Aruch Harav 10). According to many poskim, one cannot recite the brachah of Leisheiv Basukkah in such a sukkah, unless we have reason to believe that the property owner doesn’t mind it being there (Bekurei Yaakov 637:5).
Therefore, if someone builds a sukkah on a balcony built over a jointly held property – whether it sits on scaffolding above the ground or even if it is supported by beams protruding from his own home – and his partner in the jointly held property has a justified claim against that structure, he may not make a brachah in that sukkah because it is considered stolen property (cf. Pischei Choshen, Geneivah, ch. 6, fn. 47).
Similarly, if someone builds a sukkah on a fire escape that belongs to all the residents of a building and even one resident objects, it is considered stolen and he may not recite a brachah in it. If, however, the neighbors saw the person building the sukkah and did not protest, it is possible that we consider their silence implied consent (see Beis Meir, cited in Be’ur Halachah 637, s.v. “Vechein”).
If the fire escape is the private domain of the person building the sukkah, then even if the law prohibits building a sukkah there due to fire safety, it is considered a valid sukkah for the sake of reciting a brachah (Rivevos Ephraim 1:424, 2; cf. Chashukei Chemed, Sukkah p.238).
Returning to your question, if you want to build the sukkah in your yard, your partner has no right to protest. Since it is considered a normal use of the yard, we assume that he tacitly agreed to such use when you formed your partnership (Bigdei Yesha 637, to Magen Avraham 3). The only time he can protest is if the spot you chose for your sukkah will preclude him from using the yard in a normal fashion, and he wants you to move it to a different spot.
In addition, if there is room for only one sukkah, and he wants to be able to build a sukkah there some years, you must either come to some sort of agreement on how to split the time, or figure out some way to use the sukkah together (see Shaarei Teshuvah 637:1).
Money mattersMehudar Esrog#480
Q: I asked someone to buy a mehudar esrog for me, I but am not pleased with what he bought. Must I take it from him?
A: An agent's actions on behalf of his sender are valid and binding, so long as he fulfilled his agency responsibly. However, if he did not fulfill his agency responsibly, his actions are not valid and are not binding on the sender (C.M. 182:3).
There is a wide range of what can be considered mehudar. It varies with time, place, community and person.
So long as the esrog can reasonably be considered "mehudar" to the sender, even though he is not satisfied with this particular one, the acquisition is binding, and he must take it from the agent. However, if the esrog cannot reasonably be considered "mehudar" to the sender, even if because he is known to be particularly stringent, the agent's acquisition is not binding on the sender and he can refuse to accept it. If the agent cannot return it to the seller, he bears the loss (Rama, C.M. 233:1; Eshel Avraham 656:8; Pischei Choshen, Onaah 12:).