By Rabbi Yair Hoffman for 5tjt.com

A “heter” means a leniency, or a dispensation to allow something that might otherwise be considered forbidden.

It happened at a Pesach hotel in the  early 1990’s at a place called the Hudson River Inn and Conference Center in Ossining, New York.  The logic of it was unassailable, and yet it seemed too wide-ranging, too much of  a halachic stretch.  It was as if a Pandora’s box of Jewish and Halachic societal ill would be opened up if this leniency was to be revealed.

I decided to check it out with one of the Gedolei haDor, Rav Chaim Pinchos Scheinberg zt”l.  I called him and posed the question.  He responded that it was, in fact, permitted.  Afraid that the ruling would be challenged – I called a well-respected Posaik from Lakewood to remain on the line while the question was posed again.  He did remain on the line, and was also, quite literally, shocked.

The heter was such a game-changer, that one of the top caterers in the New York area, Mr. Mark Gross of Sharmel Caterers, remarked to this author that kosher caterers across the country would pay top-dollar for this heter.

The heter was based upon a fascinating reading of a five step Ramah in chapter 253 of the Orech Chaim section of Shulchan Aruch by none other than the Chofetz Chaim himself.  The repercussions of the reading are far-reaching: It allows a Jew to ask a gentile to do an innocuous action – which will end up causing what would be considered a biblically forbidden Shabbos act to occur.

Before we get to the heter, let’s get some background information about the prohibition of asking a gentile to do something for you on Shabbos.

THE ERRONEOUS THOUGHT

Some people erroneously think that one can utilize the services of a non-Jew to permit pretty much anything on Shabbos. This is actually not the case. The halachos are a bit more complex.

THE DIFFERENT SCENARIOS

There are instances in which it is permitted for a non-Jew to perform something that is Biblically forbidden for a Jew to perform on Shabbos, and there are times when it is permitted for a non-Jew to perform something that is forbidden by the Sages, but not by the Torah, for a Jew to perform on Shabbos; there are also instances in which we may not benefit from the services of a non-Jew on Shabbos at all.

TWO SEPARATE PROHIBITIONS

The first thing that we need to know is that there are two separate prohibitions involved in having a non-Jew perform an act for us on Shabbos. The first prohibition is asking him or her to perform the act; the second prohibition is in deriving benefit from the tangible results of the act performed.

Most of us have heard that one is not permitted to tell a gentile to do something for you on Shabbos, but you can hint it to him. The problem is that neither part of that statement is altogether correct.

There are times when one can ask directly; on the other hand, even hinting is not permitted when we end up deriving benefit from the tangible results of the forbidden act. This means that if a non-Jew turns on a light for us, we cannot derive benefit from it, even if we merely hinted to him to do so, or even if he did it without any prompting at all!

WHEN THERE IS NO PRESENT TANGIBLE RESULT

If, however, the non-Jew shut off the light for us, we can derive benefit from the darkness. Why? Because there is no tangible result; there is only the absence of something that existed before. We are allowed to derive benefit from the absence of something, but not from the tangible presence of the result of an act forbidden on Shabbos.

THREE REASONS FOR THE PROHIBITION

There are also three reasons cited in the rishonim as to why the Sages forbade us from asking a gentile to perform work for us on Shabbos. One reason is that we might come to treat Shabbos lightly. Another reason is based on a verse in the navi that our very speech has to be different on Shabbos. A third explanation is that the Sages treated it as if the person performing the melachah, the forbidden act, were our direct messenger. We rule in accordance with all three of these reasons.

THE MNEMONIC

One way to remember when it is permitted to ask a non-Jew to perform an action which would be Biblically forbidden for a Jew to perform is to remember the following mnemonic: “Boro Park challah eez best.”

B stands for “bein ha’shemashos”—twilight. The period after sundown and before the night stars become visible is known as bein ha’shemashos. When very necessary, it is permissible during this time to ask a gentile to perform a melachah which we are Biblically prohibited from performing ourselves. How long of a period is this? Rav Shlomo Miller, shlita, holds that it is for 30 minutes after sundown. Rav Sheinberg, shlita, holds that in a bind one can even rely on this up to 71 minutes after sundown. One should of course ask one’s rabbi as to which opinion to follow.

P stands for “p’sik reisha.” P’sik reisha refers to an ancillary consequence that will invariably happen as a result of an action. If the action itself is essentially permissible, but it would inevitably result in a melachah being performed, it is permitted to ask a non-Jew to perform the action. For example, if a Jew needs to access his refrigerator on Shabbos, but opening the refrigerator door would cause the light inside to turn on, he is forbidden from opening the door. The Mishnah Berurah rules, however, that asking a non-Jew to open the door—even though there is a p’sik reisha because the light will definitely turn on—is permitted. The Mishnah Berurah permits this even regarding a Biblical prohibition. Thus, if one left an item in the car that is necessary for Shabbos, he may ask a gentile to retrieve it, even if the light will turn on.

“Challah” is for “choleh”—a sick person. If a person is bedridden from illness (or cannot present himself to appear healthy), it is permitted to ask a non-Jew to perform work for him. The illness does not have to be dangerous. It is interesting to note that all people are considered to be a choleh in regard to cold weather. Thus in New York, if one has inadvertently left the heat off, he may ask a gentile to turn it on.

“Eez” (with apologies to the spelling purists) stands for “eiruv.” One may ask a non-Jew to repair an eiruv on Shabbos because a broken eiruv may lead to widespread Shabbos violation.

Finally, “best” stands for “b’ris.” The needs of a b’ris milah may be performed by a non-Jew. According to Ashkenazic tradition, this applies to all melachos; Sefardic custom, however, is to permit this only in the case of actions forbidden rabbinically, not Biblically.

RABBINICALLY FORBIDDEN MELACHA

Now we shall discuss the general exceptions to the rule regarding the performance by non-Jews of actions that Jews are rabbinically prohibited from performing. To remember these categories, the following mnemonic may be employed: Her Majesty’s kallah tzedakah.”  (Imagine that the Queen of England has a special fund for needy brides)

The H (“her”) stands for “hefsed merubah”—a substantial monetary loss. Under these circumstances, one may ask a gentile to perform a rabbinic prohibition, but not a Biblical prohibition. According to most poskim, electricity is a rabbinic prohibition. Thus if the freezer got unplugged, one may ask a gentile to plug it back in on Shabbos, if the owner would otherwise incur a substantial financial loss. But how much is a substantial financial loss? This varies depending upon each individual. Clearly, a freezer full of meat is a large financial loss. A freezer with two pints of Tofutti and a take-home bag from last week’s chasunah would not be a substantial financial loss.

“M” (“Majesty’s”) is for “mitzvah.” For the needs of a mitzvah, we may ask a non-Jew to perform acts which we are not allowed to perform due to rabbinic decree. For example, if one forgot to purchase challah for Shabbos lunch, one may ask a gentile to go to a supermarket and purchase a challah; purchasing on Shabbos is a rabbinic prohibition.

“Kallah’s” represents “kavod ha’berios”—human dignity. One may ask a gentile to perform a rabbinically prohibited act on Shabbos if it is necessary for maintaining human dignity. Examples of this are embarrassment, such as when one has ripped or soiled clothing. Thus a gentile may be asked to violate what would normally be a Rabbinic prohibition in order to save someone from embarrassment.

And “tzedakah” stands for “tzaar”—to alleviate suffering, considerable pain, or even for Miktzas Choli – a slight illness. Dayan Weiss (Minchas Yitzchok Vol. III #23) gives an example: If it is extremely hot in the house or the shul, one may ask a non-Jew to turn on the air conditioner, since there is suffering. (Turning on an air conditioner is a rabbinic prohibition according to most authorities.)

It is important that we learn the intricacies of what one may or may not ask a non-Jew to do for us on Shabbos. The author of the Lecha Dodi writes an important stanza in this regard: “ki hi mekor ha’berachah—for she is the source of [all] blessing.” Through the merit of our careful observance of the Shabbos, we shall receive incredible blessing.

SO WHAT HAPPENED TO THE WILD, WILD KOSHER HOTEL HETER?

So what happened to the heter?  Someone posed the question to Rav Elyashiv zatzal and his response was as follows:  “Even though there is room to be lenient to allow.. certainly and ideally, especially in places where a hechsher is given, the matter will bring about a breach in the wall of [faithful] Shabbos observance- to allow all matters of Amira l’Nachri – therefore, one should not permit it.  It is an obligation upon the hechsherim to [work out other arrangements – paraphrase].

BUT WHAT WAS THE HETER???

To see the heter and Rav Elyashiv’s response, the reader is advised to look at Siman 52 in volume one of Rav Yoseph Efrati’s Yisa Yoseph.

For those who do not have the Yisa Yoseph, it was to leave the water intake valve on the hot water urns, and restrict usage of the urns only to gentiles.  The cooking of the new water would be done only by a psik reisha – by gentiles.

The author can be reached at [email protected]