[By Rabbi Yair Hoffman for the Five Towns Jewish Times]

YNET is a non-religious Israeli news internet site. Recently, in a controversial article they posed the following question:
How is it that waiters, chazzanim, and Baalei Kriah can work on Shabbos, yet religious Jews demand that shopkeepers and businesses close on Shabbos? “Why,” asked the YNET authors, “can’t the Rabbis create a workaround?”

Although the question misunderstands some fundamental issues regarding Shabbos, it does beg the question as to what are parameters of who may work over Shabbos and the leniencies that are employed.

Can a young lady babysit on Shabbos? May a Yeshiva student take a waiter position over Shabbos? Can someone get paid to read from the Torah on Shabbos? May one get paid to speak at a Scholar in Residence program?

TWO TYPES

In halacha the term for being compensated on Shabbos – whether it be forbidden or permitted is called “Schar Shabbos.” When discussing the idea of “Working on Shabbos” there are two types of work that need to be understood.

• There is the first type of work which is called Malacha – one of the 39 major categories of creative acts that the Torah prohibits. Repairing a car or replacing a windshield wiper falls into this category. It is forbidden to “work” in this manner on Shabbos and if one does, one may never benefit from that work.

• The second type of “work” involves the Rabbinic violation of either engaging in a business transaction or earning compensation for services that are performed over Shabbos. This second type of work is discussed in Chapter 306 of the Orech Chaim section of Shulchan Aruch. It is called “Schar Shabbos” and will be the focus of this article (See SA 306:4).

The reason why a workaround could not be developed to open up a commercial district on Shabbos is that invariably it will always involve some violation of the first definition of work – malacha. We must, however, be concerned with the second type of work and what its limitations and parameters are.

BACKGROUND

The Gemorah in Psachim (50b) states: [There are] four coins in which one never sees blessing.. the payment of a meturgeman Shabbos interpreter.. Rashi explains that a translator stands before the Torah scholar on Shabbos and listen to him and then they translate for the masses.

The indication of this Gemorah is that although it is permitted, it is frowned upon.

TWO VIEWS REGARDING CHAZANIM

The Shulchan Aruch discusses the issue of hiring a Chazan to lead the services on Shabbos. In Orech Chaim (306:5) he cites two views:

• The Mordechai citing Rabbeinu Boruch and the Tur forbids it, unless it is subsumed under a longer period of hiring.

• The Mordechai also cites the view of Rabbeinu Shmuel who permits it. The Mishna Brurah explains that this is because it is a Mitzvah and in the place of a Mitzvah the Rabbis did not create a prohibition. Nonetheless, the recipient of the compensation will not see a sign of blessing from it.
The Mogain Avrohom (OC 526:12) writes regarding burying someone on second day Yom Tov that it is permitted to take payment because perhaps they may not find someone who will do it for free.

WHO IT APPLIES TO

The prohibitions involving Schar Shabbos applies to the employee and the employer but in different ways. Only the employee who receives compensation for services rendered on Shabbos is in violation of the prohibition of Schar Shabbos – the employer is not, according to most authorities (See MB 305:21 and Tehilah L’Dovid 305:7). However, by paying the employee, the employer is in violation of placing a stumbling block before the blind – Lifnei Iver lo sitain michshol.

The employee might also in violation of causing the Jewish employer to violate Lifnei Iver, thus causing a sort of Lifnei Iver on a Lifnei Iver. [See Rosh, Avodah Zarah 1:14; Ritvah AZ 14a; Meiri; Ramban Chulin 94a where this is a problem].

There is a view espoused by Rabbi Uziel Meisels, grandson of the Shaages Aryeh, that the prohibition of Schar Shabbos applies equally to the employer (See Menorah HaTehorah 347:2). Most Poskim, however, reject this view.

It should be noted that the prohibition applies to Jews but if a gentile is employed by a Jew it is permitted to pay him or her after Shabbos. Of course, malacha may not be done by a gentile for a Jew, but it is permitted to pay for hour he or she has worked.

The idea of Schar Shabbos is forbidden whether it is performed by a daily worker (Schirus) or by a contractor (Kablanus) who contracted for the job, and he happens to perform it only on Shabbos (Responsa Ateres Moshe #55).

THE THREE EXCEPTIONS

There are three types of exceptions, wherein some form of Schar Shabbos might be permitted. The three exceptions, which will be fully explained in the pages to come are 1] Havlaah – when payment is being made for an entire job that encompasses more than Shabbos 2] When the moneys are given as a gift and there was no monetary obligation for the work at all 3] When the type of payment given I not something that someone would normally pay for.

EXCEPTION OF HAVLAAH

According to the Shulchan Aruch, if the payment is being made for one job that includes work done on Shabbos as well as either before and/or after Shabbos, the sages never issued a prohibition.
It is important to conceive it as one hiring and not two separate hirings combined into one payment.

The wording of the Mishna Brurah when he discusses the notion of Havlaah is also the subject of controversy. He writes: “Therefore it is considered proper to make an arrangement with the watchman that he also be paid for hours that he worked before Shabbos begins and also for hours that he will work after Shabbos ends, and then it would be considered Havlaah according to all opinions.”

There are three different views in the Poskim about how to understand this Mishna Brurah. Most Poskim understand the Mishna Brurah (306:21) to mean that the havlaah can be either before or after Shabbos. (See Minchas Shlomo Vol II 35:9 written by Rav Shlomo Zalman Auerbach zt”l). It is just that in the specific case under discussion by the Mishna Brurah’s citation of the Chayei Odom – the weekday work happened both before and after Shabbos.

Others understand the Mishna Brurah as requiring both before and after in order to create a Havlaah (Megilas Sefer Shabbos 81:4).

A third view is that the havlaah may certainly happen before Shabbos, but it is a doubt as to whether the havlaah may happen on Motzei Shabbos only (Rav Shlomo Zalman Auerbach cited in Shmiras Shabbos K’hilchasa Volume III Chapter 28 note 129).

It seems that the commonly held view is to allow the havlaah to happen either before or after Shabbos. It is still considered Havlaah even if the majority of the hours that were worked were on Shabbos.

Some Poskim hold that Havlaah can also include an expense and service that the employee includes (See Vayavrech Dovid Siman 41).

LIMITATIONS ON HAVLAAH

Rav Shlomo Zalman Auerbach (ibid) is also of the opinion that if there is a discrepancy in the rate of compensation between the going rate on a Shabbos and that of the weekday, it is not considered Havlaah. It would thus be forbidden to take the extra money that is offered for Shabbos work. Rav Elyashiv, however, still considers it Havlaah (Zichron Dror Yikrah page 344).

EXCEPTION OF FREE GIFT

If both parties agree that there is no financial obligation incurred but rather the person who has benefitted from the work of the other offers compensation after Shabbos as a gift or token of appreciation, then it seems from the Mishna Brurah (306:16,24) that it is permissible.

EXCEPTION OF COMPENSATED BY GUARDING

Although all forms of compensation for Shabbos is prohibited whetehr it is money or food, if the compensation is a non-tangible such as watching something, it is permissible as well according to Rav Neuwith z”l (Shmiras Shabbos K’hilchasa 28:54). Thus one can babysit in exchange for babysitting.

BENEFITTING FROM MONEY EARNED ON SHABBOS

The Shulchan Aruch (OC 245:6) indicates that it is forbidden to benefit from Schar Shabbos if it was paid. The case of the Shulchan Aruch dealt with gentiles who had forcibly used a Jew’s oven to bake bread and paid him with bread. The Shulchan Aruch rules that it is forbidden for the owner or any other Jew to benefit from the bread.

PRACTICAL EXAMPLES

WAITERS – If a waiter arranges for doing work before or after Shabbos in addition to his Shabbos tasks he may be paid for the total job in one payment. It must be understood that it should be one job.

BAAL KOREH – A baal Koreh may be paid because he is also being paid for preparing the leining. If he does not prepare before Shabbos it is a problem.

BABYSITTERS – A Babysitter may only be paid for Shabbos work if she also babysits before or after Shabbos and she is paid for one total job. However, if she provides diapers or food on her own that she had paid for previously, then she can be paid for that as part of the Havlaah (see aforementioned Vayavrech Dovid).

SCHOLARS IN RESIDENCE – A scholar in residence can accept a gift for his speech but he cannot stipulate a set amount. If the Scholar in residence also prepares beforehand and it is stipulated that he is being compensated for that as well, or if he delivers a lecture after Shabbos as well, then he may accept payment.

Now can a city rely on these three heterim to open up a commercial district? Aside from the fact that it would undermine the spirit of Shabbos and the fact that actual sales and credit cards cannot be done, it is completely impractical.

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