Question #1: Avi’s Donkey Rental
For halachic reasons, Avi always specifies that rental animals must be returned before Shabbos. What does he do if the renter does not bring it back in time?
Question #2: Hertzl’s Horse Sales
Hertzl sells all types of horses: Racehorses, carriage horses (those that lost the Kentucky Derby) for the Amish, and show equines. If he is scrupulous about closing his business on Shabbos and Yom Tov, does he face any other halachic issues? He knows that he has no problems with charging interest, because his clientele is all non-Jewish.
Foreword:
Neither Avi’s nor Hertzl’s shaylos are new – both situations show up in the Gemara. As a matter of fact, the Gemara (Avodah Zarah 15a) teaches that, because of various Shabbos concerns, the Mishnah prohibits selling large animals to non-Jews on any day of the week. The Gemara (ibid.) already mentions heterim that Chazal implemented allowing Jews to be in this line of business, and the rishonim discuss why the custom seems to be more lenient than the Gemara allows. Rabbeinu Peretz, author of probably the earliest edition of the Hagahos Semaq, presents advice what Avi should do if the renter does not return the animal before Shabbos. We will discuss Rabbeinu Peretz’s solution, but first I must explain the halachic background involved.
(Rav Yitzchak of Corbeil, one of the baalei tosafos, wrote a work he called “Amudei Olam” but this work was called the “Semaq” by virtually everyone and became a very common and often copied work. Numerous “hagahos” were added to it. Each of these was simply called Hagahos Semaq, but they are really completely different works sharing in common that they are notes that someone wrote on the manuscript edition of the Semaq that he found. The first of these was presumably the one written by Rabbeinu Peretz, a contemporary of the original author.)
Introduction:
The words of the Aseres Hadibros are: “The seventh day is Shabbos for Hashem, your G-d. You may not do any work; not you, your son, your daughter, your slave, your maidservant or your animal.” Thus, we are introduced to the concept that Shabbos is not only for us to observe, but also for us to ensure that animals are not involved in Shabbos desecration. We understand that we are required to observe Shabbos, but why are our animals required to do so? Does the Torah assume that every animal has the ability to understand which day is Shabbos?
The answer is that animals have no obligation to observe mitzvos. The mitzvah applies to Jews: we are prohibited from having our animals perform melacha on Shabbos. There is absolutely no requirement to restrain an animal from performing melacha that it is performing for its own benefit. Therefore, flock and cattle may be allowed to graze on Shabbos, notwithstanding that they are reaping hay, alfalfa or other grasses in the process. Similarly, chickens and turkeys may hunt and eat worms, cats may hunt mice, and falcons may harvest their prey, provided the falconer is not involved in any capacity.
Shevisas beheimah
Actually, there are two different mitzvos, one called shevisas beheimah and the other called mechameir. Shevisas beheimah prohibits a Jew from having his animal worked by a person on Shabbos. The owner is in violation of this prohibition even if it is a non-Jew who works his animal (Sanhedrin 58b). The Rambam (Hilchos Shabbos 20:1) explains that this is a lav haba michlal aseih (also sometimes called issur aseih)derived from the pasuk, On the seventh day you shall cease from work, in order that your ox and your donkey can rest (Shemos 23:12; see also Devarim 5:14). An issur aseih is a prohibition that the Torah teaches by phrasing it as a positive mitzvah.
Mechameir is when a Jew uses an animal to perform a melacha, even if he does not own the animal.
Shevisas beheimah and mechameir are not mutually exclusive: Shevisas beheimah is violated when a Jew’s animal is worked on Shabbos, regardless as to who caused the animal to work. Mechameir is violated when a Jew is actively involved in having the animal work on Shabbos, regardless of who owns the animal. If a Jew uses his own animal to work on Shabbos, he violates both prohibitions, mechameir and shevisas beheimah.
Both of these activities, shevisas beheimah and mechameir, are prohibited min haTorah. Does this mean that they are considered on the same level as performing one of the 39 melachos on Shabbos? Chazal explain that there are two categories of activities that are prohibited min haTorah on Shabbos — those included under the heading of melacha and those that are not. The first are those that the Torah says could require capital punishment, as we see from the story of the mekosheish (Bamidbar 15:32-35). The second are those that, while prohibited min haTorah, are not as severe and do not involve capital punishment.
Some amora’im contend that mechameir has the full status of a melacha, and that it is included in the statement of the Torah, You may not perform any work – not you, not your son, your daughter, your slave, your maid or your animal (Shemos 20:10; see also Devarim 5:14). Following this position, the amora, Rami bar Chama, rules that causing an animal to perform melacha by goading it with your voice desecrates Shabbos on the same level as performing the melacha yourself. This means that if the goader intentionally violated Shabbos this could be a capital crime; if performed negligently, the goader is obligated to offer a korban chatas (Shabbos 153b; see also Avodah Zarah 15a, cf. Maharsha ad loc.). This renders mechameir far more severe than shevisas beheimah, which violates only an aseih.
Other opinions in the Gemara, including Rabbi Yochanan and Rava, contend that, although mechameir is potentially on this level of culpability, this is only if the goader performed some type of physical action, but speech alone does not qualify. Instructing your animal to plow, harvest, turn on lights or any other melacha indeed violates mechameir, but is not culpable, whether performed intentionally or negligently (Shabbos 154a). However, should someone plow together with his ox (Magid Mishnah, Hilchos Shabbos 20:1) or hunt together with his dogs (Rambam, Hilchos Shabbos 10:22) he would be as guilty as was the mekosheish.
There is a third, compromise position in the Gemara, that of Rav Zevid. In his opinion, mechameir performed intentionally by vocal instruction is a capital offense, whereas doing it negligently is exempt from offering a korban chatas. The Rambam rules according to Rabbi Yochanan and Rava, that mechameir does not render an offender culpable for either capital punishment or korban chatas.
Training your dog
The violation that we are describing applies regardless of which animal has been utilized to violate Shabbos. Many years ago, Mr. Cohen, an observant but not Jewishly well-educated man, trained his dog, Fido, to turn on and off lights by command. He still had the old style draw cords to turn his lights on and off (anyone remember those?) and had attached extended strings to them so that they would be within Fido’s reach. After training his dog to turn the lights on and off upon command, Mr. Cohen felt that he had improved upon the Shabbos clock. Now, through the course of Shabbos, he could change the light settings of his home at will. However, he did not realize that having Canis familiaris turn lights on and off upon command of Homo sapiens is prohibited min haTorah as a violation of mechameir, and, in this instance, also shevisas beheimah. He violated mechameir, because he was himself instructing the dog to desecrate Shabbos, and shevisas beheimah, because a dog owned by a Jew was performing melacha for a human. Needless to say, Mr. Cohen, was surprised and chagrined to discover that all his training efforts were for naught.
Only melacha
Both shevisas beheimah and mechameir violate Shabbos min haTorah only when the animal is used to perform an activity that, for a person, is considered melacha. Thus, having an animal plow or plant a field violates Shabbos. We will soon see that having the animal carry a rider does not.
Selling animals
The Mishnah prohibits selling a large animal, such as a cow or donkey, to a non-Jew. These sales are prohibited on any day of the week. I will cite the Gemara’s reason for this shortly. The main opinion prohibits selling even calves and foals, and even if the animals are injured and unable to work. The Mishnah then cites two opinions that are slightly more lenient: Rabbi Yehudah, who permits selling a “broken” (i.e., an injured) animal to a non-Jew, and Ben Beseira, who permits selling horses (Avodah Zarah 14b).
The Gemara (Avodah Zarah 15a) explains that the prohibition of selling a large animal to a non-Jew could cause the seller to desecrate Shabbos in one of two ways.
Renting or lending
The Gemara explains that for a Jew to rent or lend an animal to a non-Jew over Shabbos could easily cause the Jewish owner of the animal to desecrate Shabbos. Should the non-Jewish renter or borrower have the animal perform melacha on Shabbos, the Jewish owner violates the Torah prohibition of shevisas beheimah. Prohibiting the sale of large animals to non-Jews avoids a Jew having any financial dealings involving these animals, thus avoiding any potential pitfalls.
Mechameir
The other concern is that the Jew might sell the animal to a non-Jew before Shabbos, but the non-Jew discovers on Shabbos that he cannot get the animal to follow his instructions, so he asks the Jew for help with the animal. If the Jew speaks and the animal obeys his voice and thereby performs melacha, the Jew has directed the animal to work on Shabbos, which is a desecration of mechameir, even should the non-Jew already own the animal.
For those in the cattle business, there are heterim discussed in the Gemara and the halachic authorities; we will leave that topic for another time.
The minority opinions
Having explained why the Mishnah prohibited selling, renting or lending animals to non-Jews, we need to explain why Rabbi Yehudah ruled that it is permitted to sell them a broken animal and Ben Beseira permitted selling them a horse.
We learned that the mitzvos of mechameir and shevisas beheimah prohibit having animals perform melacha for a human. A broken animal is defined as one that cannot work. Presumably, the non-Jew purchasing it does so either for its meat, its leather or its milk, none of which involve a prohibition of either mechameir or shevisas beheimah.
To explain why Ben Beseira permitted selling a horse to a non-Jew, I need to explain a different concept.
Chai nosei es atzmo
In several places, the Gemara discusses a halachic principle called chai nosei es atzmo, literally, “a living thing carries itself” (Shabbos 94a, 141b; Eiruvin 103a; Yoma 66b). This principle teaches that, min haTorah, there is no prohibition on Shabbos to carry a person who is able to walk on his own; carrying someone who can walk on his own is prohibited only miderabbanan. A result of this principle is that riding a horse on Shabbos even in a public area is not prohibited min haTorah since the work being performed by the horse would not be considered a melacha.
Ben Beseira permits selling a riding horse to a non-Jew for the following reason. The prohibition of selling an animal is out of concern that the seller might help the new purchaser ride his horse on Shabbos. However, since riding a horse on Shabbos is only a rabbinic prohibition, banning the sale of a riding horse would be a gezeirah le’gezeirah, a decree of the Sages whose purpose is to make sure that someone not violate another decree, and we generally do not impose gezeirah le’gezeirah. The first opinion disagrees with Ben Beseira because of a concern that an old riding horse might be sold to a non-Jew for its horsepower and be used to grind grain or some similar activity that is prohibited on Shabbos min haTorah.
What is the reason that chai nosei es atzmo removes this act of carrying from the category of being a melacha min haTorah? The rishonim discuss this matter, and Tosafos (Shabbos 94a s.v. Shehachai), after suggesting other possibilities, concludes that the reason is because building the Mishkan never necessitated carrying something that was alive. Although both hides of animals and dyes manufactured from animal sources were used in the construction of the Mishkan, Tosafos concludes that the animals whose hides were used were led, rather than carried, to where they were slaughtered, and the animals that provided sources for the dyes were transported after they were dead. Thus, chai nosei es atzmo exempts from desecrating Shabbos because carrying is violated min haTorah only when performed fairly comparably to the way carrying was done when the Mishkan was constructed (Tosafos, Eruvin 97b s.v. Es and Shabbos 2a s.v. Pashat; see also Penei Yehoshua on Tosafos 94a s.v. Shehachai).
Is this still applicable?
Tosafos (Avodah Zarah 15a s.v. Eimur) notes that, in his day, the rabbinic prohibition against selling large animals was not commonly observed. He explains that, whereas, at the time of the Gemara, a Jew who wished to sell an animal could easily find another Jew interested in purchasing it, this was true only when one lived in an area with a sizable Jewish population. However, in Tosafos’ era, there were usually only a few Jews living within a much larger non-Jewish population, and the market for selling or renting excess animals was the local non-Jewish farm population. Tosafos therefore rules that, under these circumstances, Chazal did not create the prohibition. This approach is codified by later rishonim, and leads to a discussion about the following question:
The Gemara (Shabbos 18b) mentions that, just as a Jew is prohibited from having his animal work for him on Shabbos, Beis Shammai also forbids him from having his other property work for him on Shabbos. According to Beis Shammai, it is forbidden to have Shabbos clocks turn appliances on and off on Shabbos; and it should be also forbidden to cook your cholent in your pot on Shabbos and to have your refrigerator operate. But even the households that followed Bais Shammai cooked cholent. The Gemara questions how does Beis Shammai permit having your pot cook or warm your cholent on Shabbos? The Gemara answers that Beis Shammai contends that the owner of these appliances makes them ownerless, hefker, and ownerless items, like a non-Jew’s property, are not included in the laws of Shabbos.
Rabbeinu Peretz (Hagahos Semaq, quoted by Tur, Orach Chayim 246) utilizes this heter to avoid Avi violating Shabbos when the non-Jew works the animal. He rules that the Jew should declare his animal ownerless (cf: Tosafos, Shabbos 18b, end of s.v. Vehashta and s.v. Dimafkera). Of course, this would seem to cause a financial complication for Avi’s business. If the owner declares the animal ownerless, why can’t the non-Jew just walk off with the animal after Shabbos, claiming that the animal is now his?
Based on his understanding of a passage of Gemara in Nedarim (45a), Rabbeinu Peretz explains that Avi can declare that the animal is hefker only for Shabbos, and this precludes anyone taking possession of it. How and why this works is not entirely clear (see Ran and Rosh ibid.; and Shu”t Rabbi Akiva Eiger 1:145 s.v. Amnam). The Graz (Orach Chayim 246:9) explains that the owner’s hefker takes place only when the animal is being used to perform melacha on Shabbos. As soon as the animal stops doing melacha, the Jew repossesses the animal automatically. If and when the non-Jew begins to do more melacha with the animal, the animal becomes hefker again and returns to the Jew’s possession when it is not doing melacha. The Graz contends that this arrangement makes it impossible for anyone to take possession of the animal, although why this is so is also not obvious.
Evidently, this type of hefker, which precludes the non-Jew from taking possesson of the animal, operates similarly to the rules of selling something temporarily, which is different from renting out a property. Whereas a tenant may not make changes in the property because he does not own it, someone who purchases an item temporarily may make any changes in the property that would be considered normative by an owner. The temporary purchaser may not trash the property, but he may make major renovations to it. And, just as someone may sell an item temporarily, and when the terms of the sale are over the item automatically reverts back to its original owner, so, too, an owner may declare a properly temporarily hefker and then it reverts back to its original owner. This unique method will help Avi avoid violating the law of shevisas beheimah, should a non-Jew not return the animal before Shabbos.
Conclusion
As I mentioned above, animals have no requirement to observe mitzvos. The requirement forbidding melacha is a commandment to us; observing Shabbos requires that we refrain from having animals perform melacha for us. And the reason is simple: For six days of every week, Hashem grants permission, indeed responsibility, to oversee and rule over the world that He created. However, we must always remember that it is He who gave us this authority, and, by observing Shabbos, we demonstrate this. Our power extends over all of creation, including the animal kingdom. Thus, Shabbos limiting our control of animals demonstrates that our authority the rest of the week is only by virtue of the authority granted us by Hashem.
