Question #1: Life of the Party, Inc.
Chayim is opening a party rental business, Life of the Party, Inc., renting out tables and chairs. Are there any potential halachic pitfalls that present themselves concerning items rented over Shabbos?
Question #2: Avi’s Rent-a-Car
Avi wants to open an auto rental agency that would be closed on Shabbos. He was advised to set it up with a non-Jewish partner who owns the business on Friday, even though they intend to close the business Friday before sunset. Why would Avi need a gentile partner?
The Gemara (Shabbos 19a) quotes a beraysa that states:
A man may not rent his keilim to a gentile on Friday, but he may rent them to him on Wednesday or Thursday.
(Since the Gemara uses the word keilim to include a much broader category of items than does any of the English words utensils, tools or appliances, I will be using predominantly the word keilim, to avoid confusion.)
This beraysa poses a host of questions. What could possibly be the reason to prohibit renting your keilim to a gentile before Shabbos? As a gentile is not required to observe Shabbos, what does it matter if he uses the keilim on Shabbos? Furthermore, what difference does it make whether I rent them out on Friday or on Thursday?
We find many different approaches among the Rishonim to explain this beraysa. Indeed, answering these questions will provide an opportunity to study several important Torah topics. But first, an introduction.
Must my cow keep Shabbos?
The Torah requires that not only must we not work on Shabbos, but we must also allow our servants, and even our animals, to rest on Shabbos. These prohibitions are called respectively, shevisas avadim and shevisas beheimah. In practical terms, this means that I may not have my animal perform work for me. This prohibition is mentioned explicitly by the Torah: Do not perform work – not you, your son, your daughter, your slave, your maidservant, your animal (Shemos 20:9). I am responsible to see that none of them performs melachah on my behalf.
Must my appliances keep Shabbos?
Since I may not have my animals work for me on Shabbos, the next question is whether I may have my appliances work for me on Shabbos.
Those who have never studied Mesechta Shabbos usually find it surprising to discover that there is actually a dispute between Beis Hillel and Beis Shammai on this topic (cf. Bach, Orach Chayim 246, who concludes that even Beis Hillel concurs that, under certain circumstances, one is required to allow one’s keilim to “rest” on Shabbos, and that the dispute is what type of shevisas keilim is forbidden). Beis Shammai rules that it is prohibited min haTorah to have one’s appliances perform melachah activity on Shabbos (Shabbos 18a). This prohibition is called shevisas keilim. According to Beis Shammai, having my mill grind grain on Shabbos is prohibited min haTorah, even if it operates completely automatically and requires no human intervention whatsoever. Similarly, Beis Shammai prohibits having a gentile rent or borrow my keilim on Shabbos, if he will use them for forbidden melachah activity (Tosafos, Shabbos 19a s.v. Lo). Thus, Beis Shammai forbids allowing my hoe or my automobile to remain in the hands of a gentile or not-yet-observant Jew over Shabbos, out of concern that he may use them on Shabbos. This ruling would definitely create a halachic problem for Avi’s Car Rental.
Beis Hillel disputes this ruling, contending that the Torah prohibited only having my animals work on Shabbos, but not my inanimate property. We therefore have an anomalous situation whereby having my keilim used for melachah on Shabbos is prohibited min haTorah according to Beis Shammai and yet may be completely permitted according to Beis Hillel.
Note that I wrote may be permitted. As we will soon see, there are other factors that need to be resolved, and it is these other factors that will affect Chayim and Avi.
Back to the beraysa
At this point, we will return to our original beraysa, which states: a man may not rent his keilim to a gentile on Friday, but he may rent them to him on Wednesday or Thursday.
Remember that we were puzzled why one may not rent items to a gentile on Friday. Several early authorities contend that this beraysa follows the opinion of Beis Shammai, that one’s keilim may not be used to perform work on Shabbos, even if the work is performed by a gentile (Rif and Rambam, as explained by Rosh, Ran, and Beis Yosef). Therefore, the beraysa prohibits giving my appliance to a gentile on Friday out of concern that he will use it in the performance of a melachah on Shabbos. For reasons beyond the scope of this article, the beraysa was only concerned about this happening if I gave him the appliance on Friday, but not if the gentile received the appliance earlier in the week (see Rosh, Shabbos 1:36).
Although, indeed, some early authorities understood that this beraysa follows the opinion of Beis Shammai, most authorities reject this approach. Among their concerns are:
(1) If this beraysa follows the opinion of Beis Shammai, then it does not reflect accepted halachah, which follows Beis Hillel. Usually, when a statement of a Mishnah or beraysa reflects an opinion that we do not follow, this point is noted by the Gemara, which is not the case in this instance.
(2) If the reason for this beraysa is that one is required to make sure that one’s keilim rest on Shabbos, why does the beraysa prohibit only renting your keilim to a gentile? It should be just as prohibited to lend him your keilim, since he might perform melachah with the loaned utensil!
To resolve these issues, other authorities present alternative reasons why one may not rent keilim to a gentile on Friday. Before presenting the next approach, we first need to understand a concept called sechar Shabbos.
Because Shabbos should be completely divorced from any mercantile activity (Rashi, Kesubos 64a s.v. Kisechar), Chazal prohibited receiving payment for something performed on, or that occurred on, Shabbos, even when the work involves no melachah, and even when I, myself, am not doing anything on Shabbos (Bava Metzia 58a; Shulchan Aruch, Orach Chayim 306:4). For example, although it is permitted to work as a waiter on Shabbos, one may not be paid specifically for the work done on Shabbos. Another example: I may not rent out my tables on Shabbos to a gentile, even though I, myself, am not doing anything, and my tables are doing no forbidden melachah activity, but are just standing around, looking pretty.
So how do chazzanim get paid?
This leads to a question. If one may not be paid for Shabbos work, how does one hire a waiter, chazzan, baal keriyah, or babysitter for the work that they are going to do on Shabbos? Is one not paying him or her for work performed on Shabbos? The answer is that one must arrange that the person hired to perform work that will take place on Shabbos is also hired to perform work that he will do on a weekday, and that no calculation is made how much the Shabbos work is worth. The employee (waiter, chazzan, baal keriyah, babysitter, etc.) must be paid in a package deal that includes the Shabbos work. This method is called havlaah – absorbing or swallowing, as the pay for the Shabbos work is “absorbed” in the pay for the non-Shabbos work.
Therefore, a chazzan is paid a package deal that includes payment for his travel or preparation time, or for other non-Shabbos responsibilities. Similarly, a baal keriyah must be paid a package deal that includes the non-Shabbos time he spends preparing the reading. If one chooses to hire or work as a babysitter or waiter on Shabbos, one must hire or be hired in an arrangement that includes some non-Shabbos work, and the pay package may not be calculated on an hourly basis, since this will, therefore, include direct pay for Shabbos (see Rama, Orach Chayim 306:4 and Magen Avraham ad loc..) Instead, one must pay or be paid a “package” that does not have a per hour breakdown.
(We should note that there are some authorities who rule that there is no prohibition of sechar Shabbos when one is doing a mitzvah (see Shulchan Aruch, Orach Chayim 306:5 and 526:5). According to those who are lenient, a chazzan, baal keriyah or baal tekiyah may be paid exclusively for his Shabbos work. A full treatment of this subtopic will need to wait for a different article.)
“Life of the Party” and Shabbos
At this point, we should discuss one of the questions raised above: Chayim’s party rental business, Life of the Party, Inc. Chayim asked if there are any potential halachic pitfalls that may present themselves concerning items rented over Shabbos. There is one problem that could come up if Chayim is not careful, but it is very easy to avoid. Let me explain.
Someone who rents property or equipment to a gentile may not charge specifically for Shabbos, since this includes sechar Shabbos. This will not be a problem if the rental rates are calculated according to calendar day; this is a form of havlaah, since Friday and Saturday calendar days both include parts of a day that are not Shabbos. However, this could become a problem when a Yom Tov falls on either Friday or Sunday, since the prohibition also applies on Yom Tov and the calendar day now includes only time when there will be a problem of sechar Shabbos/Yom Tov (see Tur, Orach Chayim 585). Chayim can avoid this problem, either by not charging for that extra day, or by charging a “weekend rate” that includes time that is neither Shabbos nor Yom Tov.
Rental operations usually charge a per diem 24-hour rental fee, from the time of pick-up until the time of return. Most of the time, this arrangement will not present Chayim with a problem, since part of the 24 hours will not fall on Shabbos. However, in a situation when the 24-hour rental time coincides exactly with Shabbos, one will be charging sechar Shabbos, which is a problem. In such a situation, one may extend that part of the rental day to include some time that is definitely not Shabbos. It would serve Chayim well to include this part of the arrangement in the fine print of his rental contract.
Tosafos‘s approach to the beraysa
By now, we have become so engrossed in the concept of sechar Shabbos that we may have forgotten that we were in the process of explaining a beraysa. Remember that our beraysa made the following statement: A man may not rent his keilim to a gentile on Friday, but he may rent them to him on Wednesday or Thursday. We were puzzled why the beraysa prohibited renting appliances or equipment to a gentile on Friday. Now that we fully understand the concept of sechar Shabbos, I will present a second interpretation of the beraysa, which is the approach of Tosafos and others.
Renting out appliances on Friday, even by means of havlaah, is prohibited, because it gives the appearance of receiving payment specifically for Shabbos. This rental is included in the prohibition of sechar Shabbos (Tosafos, Shabbos 19a). It is permitted to rent appliances on Wednesday or Thursday, even if the rental period is for several days, because this arrangement does not give the impression that I am trying to profit from Shabbos.
This approach explains well why the beraysa prohibited only renting appliances to a gentile, and not simply lending them, because when lending my appliances for Shabbos use, I am not receiving any remuneration (Tosafos, Shabbos 19a).
Life of the Party
However, we should realize that, according to this approach, Chayim, of Life of the Party rentals, will have an interesting shaylah. How can he rent out tables and chairs on Fridays, since renting any items to a gentile is prohibited according to the beraysa when it made its now-famous statement: A man may not rent his keilim to a gentile on Friday?
Rabbeinu Yonah’s approach
Before troubling Chayim with the possibility that he may have to rearrange the way he does business, let us examine a third approach, that of Rabbeinu Yonah, to explaining the original beraysa. This approach is based on the rabbinic prohibition against hiring a non-Jew to work for a Jew on Shabbos. The beraysa prohibits renting on Friday keilim that one uses to perform melachah to a gentile, since we know that if the rental would exclude permission to use these keilim on Shabbos, the gentile would be willing to pay only significantly less rent. Since the rent the Jew receives reflects the fact that the gentile will perform melachah with this appliance on Shabbos, the Jew is considered to be benefitting from the gentile’s work on Shabbos, which is why Chazal prohibited it (Rosh, Shabbos 1:36, quoting Rabbeinu Yonah).
Why only renting?
According to Rabbeinu Yonah’s approach, it is very obvious why Chazal prohibited only renting to the gentile on Friday but permitted lending the appliance to him. Only when the Jew benefits from the gentile’s activity does it appear that the Jew made the gentile into his agent (Magen Avraham). When the Jew does not benefit from the gentile’s activity, it is obvious that the gentile is working for himself and not as an agent of the Jew (see Graz).
Tosafos versus Rabbeinu Yonah
There is a major difference in halachah between Rabbeinu Yonah’s approach and that of Tosafos. According to Tosafos, that the prohibition is because of sechar Shabbos, the beraysa prohibits renting any appliance to a gentile on Friday. However, according to Rabbeinu Yonah, the beraysa prohibited only renting keilim with which one performs melachah, but not chairs, tables or any other items that one does not use for melachah. Thus, the halachah of this beraysa would not apply to Chayim’s party rental company.
How do we paskin?
The Rama, when ruling on this topic, specifies that one may not rent a gentile a plow on Fridays, thus ruling according to Rabbeinu Yonah that the prohibition applies only to appliances used for melachah. Therefore, according to the Rama’s halachic conclusion, as long as Chayim makes sure not to have a contract that violates the laws of sechar Shabbos, he has no halachic problems with his enterprise, and we wish him well in his endeavor.
What about Avi’s Rent-a-Car?
However, it would seem that one may not rent out an automobile on Erev Shabbos to a gentile. The rav who had advised Avi obviously felt the same way.
Because of my own curiosity on the topic, I sent out the question to a prominent halachic authority, to see whether he felt that Avi may rent out his autos to gentiles on Friday.
The authority I contacted ruled that Avi did not need to bring a gentile into his business, because of a very interesting reason. Most of us are familiar with the prohibition of maris ayin, avoiding doing something that may raise suspicion that one violated halachah. For example, one may not hang out to dry on Shabbos wet clothes that were used to mop up a spill, because neighbors might think that he washed the clothes on Shabbos. This is true even when all the neighbors realize that he is a meticulously observant individual.
Indeed, there are some halachic authorities who explain the beraysa to mean the following: You may not rent keilim to a gentile on Friday because of a concern that people seeing you rent the item may think that you have hired the gentile to work for you on Shabbos, and are supplying him with materials to do the job (Bach; Taz, Orach Chayim 246:2; Pri Megadim). Since this concern would not possibly exist on a clearly-marked rental car, the authority I quoted above ruled that there is no problem with a Jew renting out a car to a gentile on Friday. This posek felt that as long as Avi was careful about the laws of sechar Shabbos, he would not need to be concerned about renting vehicles on Friday.
Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos in order to provide a day of rest. This is incorrect, he points out, because the Torah does not prohibit doing avodah, which connotes hard work, but melachah, which implies purpose and accomplishment. On Shabbos, we refrain from constructing and altering the world for our own purposes. The goal of Shabbos is to emphasize Hashem’s rule as the focus of creation by refraining from our own creative acts (Shemos 20:11). By refraining from building for one day a week, we acknowledge the true Builder of the world and all that it contains.