In the previous shiur we introduced the concept of requesting a gentile to violate the Shabbos for the sake of a mitzvah, but we did not state the relevant halacha.

            What is the halacha?

            The Mechaber writes that one may request a gentile to violate an issur d’rabanan for Milah but not issurei d’oraisso. [1]

The Mishna Berura writes [2] that it is preferred that a gentile carry the knife through a rabbinical domain to where the baby is, than to take the baby through the rabbinical domain (where there is no eiruv), because one will have to return the baby to his house thereby violating the Shabbos twice, whereas the knife can remain where it is until after Shabbos.

The Rama however writes ‘see above in simon 307’. In simon 307:5 the Rama writes that there are opinions who hold that one may request a gentile to violate an issur d’oraisso for the sake of a mitzvah. That opinion belongs to the Ba’al Ha’Itur and it is compatible with the Ba’al Halachos we mentioned.

The Mishna Berura writes [3] that many poskim Achronim [4] argue with the Rama and do not permit one to request a gentile to violate an issur d’oraisso for the sake of a mitzvah. He continues saying that when there is no other option, [5] one has what to rely on to request a gentile to violate an issur d’oraisso for the sake of a Milah especially if it only involves carrying the knife in the street, if the street is not a reshus harabim d’oraisso. B’ezras Hashem we will learn what the definition of a reshus harabim is.

 

            (The purpose of these shiurim is not to pasken, as these issues are complicated and when the occasion arises a competent rav must be consulted with. It is our purpose to merely present the various issues involved).

            With respect to requesting a gentile to violate Shabbos, is there a difference between mitzvos and a B’ris Milah.

            With regards to other mitzvos we find a dispute amongst the Rishonim.

The Rambam [6] writes that one may request a gentile to violate an issur d’rabanan for the sake of a mitzvah. The Maggid Mishne explains that the Rambam’s source is the above-mentioned halacha that says that one may request a gentile to violate an issur d’rabanan for the sake of a B’ris Milah. The Rambam did not make a distinction between a B’ris Milah and other mitzvos.

On the other hand the Tosefos [7] states that a B’ris Milah is unique in the sense that one may request a gentile to violate an issur d’rabanan and this does not apply to other mitzvos. The reason for the unique heter (permitted action) is because the actual B’ris Milah involves the violation of the Shabbos, albeit b’heter, and therefore Chazal permitted requesting a gentile to violate the Shabbos, but other mitzvos do not share this status and hence it is prohibited.

            What is the halacha?

            First we will examine the Shulchan Aruch.

The Mechaber [8] cites both opinions. First the Mechaber cites the Rambam who permits it and then he cites the Tosefos who prohibits it. There is a known rule when learning the Shulchan Aruch which says that ñúí åéù àåîøéí äìëä ëñúí, which means that when the first opinion is mentioned anonymously, as if everyone agrees, and the second or following opinions are quoted as “there are those that say…” or “there is an opinion…” then halacha is according to the first opinion, which in this case is to be lenient.

Moreover the Shulchan Aruch in Hilchos Rosh Hashana [9] does not cite the stringent opinion at all, which proves that he paskens according to the Rambam.

            Can you provide a few examples?

            If the sefer torah was forgotten in the gabai’s home, a gentile may be requested to bring the sefer torah to shul, provided that it can be brought to the shul via a carmelis and not via a reshus harabim. In other words, if the gentile can only carry it through a public domain, where carrying is a biblical prohibition, the gentile may not be requested to bring the sefer Torah. However if there is an alternative passage, which only involves an issur d’rabanan, it is permitted.

            What about turning on the lights for the Shabbos meal?

            Turning on the lights involves an issur d’oraisso and according to the Mechaber it is definitely prohibited. [10] The Rama [11] however cites an opinion who permits it, but we mentioned that the Mishna Berura [12] disagrees and holds that one may not request a gentile to violate an issur d’oraisso for the sake of a mitzvah.

            Is the gentile permitted to turn on the lights in shul before davening? What about the air-conditioning?

            The same halacha as above applies to turning on the lights before davening, as it involves an issur d’oraisso. However, till today some shuls have a gentile turn the lights on before davening and they rely on two issues. The first is the Rama who as mentioned states that for the sake of a mitzvah one may even request a gentile to violate an issur d’oraisso, and since this concerns many people certain poskim permit it. The second is when there is already some light in the room and the gentile is merely adding light. This latter heter carries much more weight than the first one, but is also not agreed by all, as the Magen Avraham says [13] that when one sees that a gentile is about to violate an issur for one’s sake one must protest.

            Do you have a solution that would comply with all opinions?

            Nowadays it is possible to install a Shabbos clock to turn the lights on and off, which is far better than having a gentile do so. It is also a matter of chinuch – education, as many people (children especially) do not know that a shul might have a special heter, as mentioned, and they might think that a gentile is always permitted to activate the lights.