Each of the following questions is an actual situation about which I was asked:Question #1:
My friend lives in a neighborhood that does not have an eruv. She arranges before Shabbos for a non-Jew to push the baby carriage on Shabbos. May she do this?Question #2:
"If this contract does not arrive at its destination ASAP, I could suffer huge losses. May I mail it as an express mail package on Friday?" Question #3:
"If a registered letter arrives on Shabbos, may I ask the letter carrier to sign for me?"
As I mentioned last week, the topic of amira lenachri what I am permitted to ask a non-Jew to do for me that I am not permitted to do myself, is very complicated and often misunderstood or misapplied. As I noted last week, these laws are not restricted to the laws of Shabbos, but apply to all mitzvos of the Torah, and, therefore, I may not ask a non-Jew to graft fruit trees for me, nor may I ask him to do prohibited work on Chol Hamoed (Moed Katan 12a).
As we learned last week, these are some of the factors that we must consider:
A. Is the non-Jew my employee or is he an "independent contractor"?
B. What type of benefit do I receive from his work?
C. Did I ask the non-Jew directly or indirectly?
D. If a Jew were to perform the work, would it be prohibited min haTorah or only miderabbanan?
E. Why do I want him to do this work?
F. Could I do the work myself, albeit in a different way from how the non-Jew is likely to do it?
Last week, we discussed the difference between asking directly from the non-Jew to do something that I am prohibited from doing, versus, hinting this to him. May I hint to a non-Jew that I would like him to perform a prohibited activity on Shabbos? The poskim dispute this issue. As we learned last week, the majority of poskim rule that, although one may not hint to a non-Jew on Shabbos, one may hint to him on a weekday (Smag). Thus one may ask him on Friday, "Why didn’t you do this last Shabbos? but one may not ask him this on Shabbos (Shulchan Aruch Orach Chayim 307:2; Rema Orach Chayim 307:22). However, the poskim agree that one may tell a non-Jewish mailman on Shabbos, "I cannot read this letter until it is open." What is the difference between the two types of hinting?
The difference is that the forbidden type of hinting implies either a command or a rebuke, whereas the permitted type does not (Magen Avraham 307:31). Telling a non-Jew to clean something up in a dark room on Shabbos is, in essence, commanding him to perform a prohibited activity -- turning on the light. Similarly, when you rebuke him for not doing something last Shabbos, you are basically commanding him to do it the next Shabbos. However, one may make a statement of fact that is neither a command nor a rebuke. Therefore telling the non-Jew, "I cannot read this letter unless it is open" does not command him to do anything, and for this reason it is permitted.
However, if the non-Jew then asks me, "Would you like me to open the letter for you?" I may not answer "Yes," since this is itself a command. (It is as if you said, "Yes, I would like you to open the letter for me.") I may tell him, "That’s not a bad idea," or "I have no objections to your opening the letter," which does not directly ask him. I may even say, "I am not permitted to ask you to open it on my Sabbath."
PUSHING THE BABY CARRIAGE
At this point, we can discuss our opening question: My friend lives in a neighborhood that does not have an eruv. Before Shabbos, she arranges for a non-Jew to push the baby carriage on Shabbos. May she do this? (See Mishnah Berurah 308:154.)
Let me address this issue with the following shaylah that I was asked recently: Someone moved to a community where the rav permits people to have a non-Jew carry the baby on Shabbos by arranging remizah (hinting) from before Shabbos. This means that one would tell a non-Jew before Shabbos, "I would like to go to shul on Shabbos, but I cannot leave the baby behind." The non-Jew then responds, "What time would you like me to arrive at the house?" or "What time would you like to leave the house?" neither party ever stating that you have asked the non-Jew what to do.
Personally, I have strong reservations about using this suggestion, since, eventually, one will end up commanding the non-Jew directly, such as, if the non-Jew asks, "Do you need me to take the baby’s blanket along?" If you answer "Yes," you have commanded the non-Jew, which is a violation of the halacha.
At this point, we can begin to discuss opening question #2: May I mail express mail on Friday?
At first glance, it would seem that one may not send an express mail package on Friday, since you are asking the non-Jew to transport and deliver the package on Shabbos. You are requesting that he do the job as quickly as possible, making this dissimilar to the case of bringing the car to the auto mechanic or clothes to the dry cleaner on Friday. In this case, you are insisting that he do the job on Shabbos, which is prohibited.
A similar shaylah to our express mail case was asked in Amsterdam hundreds of years ago of Rav Yaakov Emden. The questioner wanted to ship precious stones by asking a non-Jewish employee to deliver them to the post office on Shabbos, reasoning that his non-Jewish agent was carrying items within an eruv on Shabbos and therefore not doing any prohibited activity. Rav Yaakov Emden prohibited this, pointing out that the non-Jew would have to fill out paperwork at the post office to send off this shipment, and this would be considered having an agent work for him on Shabbos (She’eilas Yaavetz 2:139).
Although based on the above analysis it would seem that one may not send express mail on Friday, there is a different reason why one may -- but only under extenuating circumstances, as I will explain.
I may not ask a non-Jew on Shabbos to hire other non-Jewish workers (Shabbos 150a; Shulchan Aruch 307:2). Some poskim contend that although I may not ask a non-Jew to hire workers, which is a prohibited activity, I may ask him to ask another non-Jew to do something that is prohibited on Shabbos. The rationale behind this heter, usually called amira le’amira, is that asking one non-Jew to ask another is permitted because I am asking a non-Jew only to talk, which is not considered an activity (Shu’t Chavos Ya’ir #46, 49, 53). Other poskim contend that just as one may not ask a non-Jew to hire workers, which is just talk, one cannot ask him to do any other activity that involves prohibited work (Avodas Hagershuni). Mishnah Berurah (307:24) rules that one may be lenient in a case of major financial loss; thus, under very extenuating circumstances, one could be lenient.
This dispute is interesting historically because the two seventeenth-century Torah giants involved in this dispute corresponded with one another. The Chavos Ya’ir permitted asking a non-Jew to ask another non-Jew to work on Shabbos, whereas the Avodas Hagershuni responded to him that this is forbidden. One can actually trace the give-and-take of their halachic debate on the issue, together with their lines of reasoning and proofs, simply by reading the correspondence published in their responsa. It is almost as if we are privileged to sit in their respective batei midrash and listen in as they each give shiur on the subject!
The dispute has many ramifications, one of which is our case of express mail, since you place an order with one person, but a different non-Jew does the actual traveling and delivering. Thus, we have a case of amira le’amira, which is permitted according to the Chavos Yair. There is also another reason to be lenient: Since one is arranging the express mail delivery before Shabbos, the situation is a bit more lenient than the above-mentioned dispute between the Chavos Yair and the Avodas Hagershuni. Indeed, the Chasam Sofer (Shu’t Orach Chayim #60) rules a compromise position between the two, permitting telling the non-Jew before Shabbos to ask the other non-Jew on Shabbos. Biur Halacha (307:2) disagrees, quoting Rashba. Therefore, one should not rely on this ruling unless the situation is extenuating.
The story behind the Chasam Sofer’s responsum on this issue is worth noting. During the Napoleonic Wars, a battle took place in Pressburg (today known as Bratislava), where the Chasam Sofer was rav, in which much of the Jewish area of town went up in flames. It was very important to rebuild the neighborhood before winter set in, and there was concern that the non-Jewish contractors would not construct the Jewish houses in a timely fashion if they were not allowed to work on Shabbos. One of the reasons that the Chasam Sofer ruled that they could allow the non-Jew workers to work on Shabbos was that the Jews hired a non-Jewish contractor, who in turn instructed his employees when to work. Thus it was a case of amira le’amira, which the Chasam Sofer permitted if the contractor received his instructions before Shabbos.
If I hired a non-Jew to make a delivery for me, he may not pick up the item from my house on Shabbos (Shulchan Aruch Orach Chayim 307:4). Thus, if I contract with a delivery service, such as UPS, they must pick up the item before Shabbos.
Now we should be prepared to answer this last question. What should I do if a registered letter arrives on Shabbos?
As explained above, I may not ask the non-Jewish delivery person to sign for me, even by hinting to him. However, I may tell him, "I cannot sign for this today because it is my Sabbath." If he asks me, "Would you like me to sign for the delivery?" I may not tell him, "Yes." However I may answer him, "It is fine with me if you would like to," or "I may not ask someone else to do this on my Sabbath," or "I do not mind receiving the delivery, but I may not sign for it."
In conclusion, we have discovered that in certain extenuating instances, Chazal permitted melacha performed by a non-Jew, but that one should not extend these heterim to other situations. When using a non-Jew to do normally forbidden work, one should focus that one’s intent is not, chas v’sholom, to weaken the importance of Shabbos, but, rather, to enhance kavod Shabbos.
According to the Rambam, the reason that Chazal prohibited asking a non-Jew to do work on Shabbos is so that we do not diminish sensitivity to doing melacha ourselves. Refraining from having even a non-Jew work for me on Shabbos shows even deeper testimony to my conviction that Hashem created the world.
This Shiur is published also at Rabbi Kaganof's site