Siman 245

In the previous simanim it was explained that according to a kibbolet arrangement, it is permitted for an Israelite to allow a non-Jew to work on Shabbat, because in a kablanut—he works for his own benefit, except in the case of items attached to the ground, as was explained there; and this is specifically when the business belongs to the Israelite alone. However, an Israelite and a non-Jew who have a partnership business—it is forbidden in such a case. And do not wonder: is it because the non-Jew has a portion in the essence of the business that it is worse, and how is it possible to say so?! For the reasoning is thus: when the business belongs to the Israelite alone, and he hires him with a kibbolet—he is not like his agent, but rather he works for his own benefit, as was explained there. And the fact that the Israelite profits through this—it is only incidental, as was explained there. But two partners who have a business—behold, it is incumbent upon both of them to work, and if the non-Jew works alone on Shabbat—he will certainly want the Israelite to work alone for one day during the weekdays, corresponding to the Shabbat that he worked, and this is exactly like saying to him: "You work for me on Shabbat and I will work for you on Sunday," and he is literally like his agent. And there are detailed laws in this, as will be explained with the help of Heaven. And there is no difference whether the business itself belongs to them, or whether they rented the business from another so that both of them would work in partnership—for ultimately they are partners, and see in section 7.

And this is what the sages taught at the end of the chapter "Before their festivals" (Avodah Zarah 22a): An Israelite and a gentile who took a field in partnership, the Israelite may not say to the gentile: "Take your portion on Shabbat and I on a weekday," because he becomes his agent for the half-day that is incumbent upon him (Rashi). And if they stipulated from the beginning—it is permitted. That is to say, that before accepting the business he stipulated with him that the business of the day of Shabbat shall be yours and that of Sunday shall be mine—it is permitted, because the Israelite did not accept the business of Shabbat at all, and the gentile is not his agent (ibid.). And if they came to an accounting—it is forbidden. And Rashi explained that this is the explanation: where they did not stipulate from the beginning but rather accepted without specification and acted without specification, and the gentile worked on Shabbat and the Israelite on a weekday, and they came to an accounting after some time to say: "How many Shabbat days did you take, and I will take weekday days corresponding to them"—it is forbidden, for he is taking Shabbat wages. Thus far his words. That is to say, that afterwards it is of no avail what he desires, that the Shabbat days should belong to the gentile alone and to him should belong one of the weekdays alone, for since they already entered the partnership without specification—perforce they are partners in all the days, and he becomes his agent for Shabbat.

And there are some of our teachers who explained that this "and if they came to an accounting" refers to where they stipulated from the outset, and this is the explanation: that even if they stipulated from the outset, nevertheless, if when they came to an accounting they divided the total profit equally—it is forbidden. For since the gentile did not take the profit of the Shabbats however much it was, whether much or little, and correspondingly the Israelite did not take the profit of a weekday however much it was—it turns out that their stipulation was merely an evasion (the Ran in the name of the Ra'avad). And it is possible that Rashi also does not disagree with this, for it is certain that where they stipulated from the outset, it is necessary that each one take the profit of his day, whether much or little. And Rashi, who explained that it refers to where they did not stipulate, did so because where they did not stipulate, even in such a manner where this one takes the profit of the Shabbat and this one takes that of the weekday—it is also forbidden. And in this, the second opinion also agrees. And behold, the words of the Rambam in chapter 6, law 17, are also like Rashi, as will be explained. And according to what we have written—they do not disagree at all. And I saw one who wrote that according to the Rambam it is permitted when they stipulated to divide equally, since he did not explain this "if they came to an accounting" as referring to "stipulated" (the Beit Yosef in the name of the Maharia), and according to this, Rashi would also hold so. However, according to our words, one should not create a dispute between the poskim, and all agree that even where they stipulated—it is forbidden to divide equally. And that which they explained it regarding where they did not stipulate, this was because without a stipulation—even in such a manner it is forbidden, as we have written. (And the Bach also rejected the words of the Maharia. But the Taz in subsection 2 agreed with the Maharia, see there). And more will be explained regarding this with the help of Heaven in section 5, that there is reason to be lenient, see there.

This is the wording of the Rambam there: "One who enters into a partnership with a gentile in labor or in merchandise or in a shop—if they stipulated at the outset that the profit of the Shabbat shall belong to the gentile alone, whether it be little or much, and the profit of another day corresponding to the day of Shabbat shall belong to the Israelite alone, it is permitted. And if they did not stipulate at the outset, when they come to divide—the gentile takes the profit of all the Shabbats alone, and the remainder they divide (and the Israelite shall not benefit from Shabbat at all), and he does not add anything for him corresponding to the day of Shabbat, unless he stipulated at the outset. And so too if they received a field in partnership, it is the same law. And if they did not stipulate and they came to divide the profit, and the profit of Shabbat was not known, it appears to me that the gentile takes one-seventh of the profit alone, and the remainder they divide." Thus far his words. And our teacher, the Beit Yosef, wrote likewise in section 1. And it is obvious that that which he wrote, "one-seventh of the profit," this is regarding a matter where the profit is equal every day. But in a shop and the like, where there is a market day once a week whose livelihood is greater than the entire week—one does not need to appraise it so, but rather to appraise one-sixth of the profit from the six days that are not market days.

And behold, even though we wrote that it could be said that Rashi and the Rambam agree with the opinion in section 3, that even where they stipulated it is forbidden when they came to an accounting and divided equally. However, our teachers, the authors of the Tosafot there, wrote that where they stipulated—it is obvious that it is permitted, see there. And according to this, it could be said that Rashi and the Rambam also hold thus. And according to this, that which our teacher, the Beit Yosef, was lenient regarding this in section 2 fits well, as he wrote, and this is his wording: "In a case where they stipulated at the beginning, if afterwards at the time of division the non-Jew consented to divide equally—it is permitted," thus far his words, and we say that he is giving him a gift. (And the ruling of the Beit Yosef fits well even not according to the words of the Maharia, for since in Rashi and the Rambam there is no definitive proof, but rather it is the Ra'avad who forbids, and since the Tosafot are lenient and the prohibition is rabbinic—we follow the lenient view. Furthermore, the Rosh certainly holds thus, as will be explained, and these are two against one, and delve into this).

It is stated there in the Gemara, a question was raised to them: What is the law in an unspecified case? And the question was not resolved, see there. Rashi explained: Unspecified—where they accepted the partnership without specification and acted without specification, the non-Jew on Shabbat and the Israelite on Sunday, and the Israelite never said, "You take the Shabbat and I will take a weekday"—what is the law regarding dividing the profits equally without specification, where the Israelite does not mention the Shabbat? Thus far his words. The explanation of the matter: For perhaps the prohibition only applies when he says to him, "You take the Shabbat and I will take a weekday," for this is like saying to him explicitly: "Be my agent on Shabbat and I will be your agent on a weekday." But in an unspecified case—everyone knows that it is forbidden for an Israelite to buy and sell on Shabbat even through an agent, and consequently the non-Jew acts for himself on Shabbat and the Israelite acts for himself on a weekday. And even though they do not calculate that this one will take the profits of the Shabbats and this one the profits of the weekday—it is not the way of partners to be exacting in this, and they waive the difference to one another.

And behold, the Rosh ruled on the inquiry leniently. He wrote the reason: since it is a rabbinic doubt, we follow the lenient view; see there. This is what our teacher, the Rema, wrote in section 1: that there are those who permit the wages after the fact, even if they did not stipulate, and they divided [the profits] without specification, and it seems to me that in a case of great loss, one may rely upon them. Thus far his words. But where there is no great loss, it is forbidden. The reason is that the Rif omitted this inquiry, and also from the words of the Rambam it appears explicitly to be forbidden, for the Rambam deals with a case of no specification, and this is the opinion of our teacher, the Beit Yosef. And even though one could say that they only wrote that ideally this one should take the wages of all the Sabbaths, but not after the fact—nevertheless, it is impossible to say so, for if so, they should have explained that after the fact it is permitted. Furthermore, since the Rambam was stringent that the non-Jew should receive a seventh part of the wages when the profit from the Sabbath days is not known, one may infer from this that he was very stringent in this matter. (And for the reasoning of the Rif and the Rambam, see the Ran there. And see Magen Avraham, subsection 3, who cited in the name of Rabbeinu Yerucham a different explanation for "without specification," namely that the non-Jew took for himself the profit of the Sabbath, and afterward the Israelite took the profit of a weekday; see there. And so one is compelled to explain, for if not so, this has no explanation at all, and for the law, it is all one. And from the Rosh it is proven that he holds like the Tosafot regarding where they stipulated, and not like the Ra'avad, for since he is lenient in a case of no specification, all the more so where they stipulated; and examine this carefully.)

There is no difference in this law whether they became partners in a matter where, through its performance on Shabbat, the portion of the Israelite increases even in the essence of the enterprise—such as a field, a vineyard, and the like, where through the labor of Shabbat the essence of the field and vineyard is improved—or whether it is not improved through the labor of Shabbat—such as an oven, a shop, and the like, where the labor of each day is a matter unto itself—for ultimately it is as if he is his agent, as has been explained. Therefore, even though in the Gemara only a field was mentioned, nevertheless it is all one. And in the Tosefta of Demai at the end of chapter 6, we learned there that they have a bathhouse in partnership; see there. And a bathhouse—the enterprise is not improved by the performance on Shabbat, as is understood (Tosafot ibid. in the name of our teacher Tam and the Ri). Therefore, our teacher, the Beit Yosef, intentionally wrote in section 1: An Israelite and a non-Jew who have a field or an oven or a bathhouse, etc. (And as for the fact that the Talmud mentioned only a field, it seems to me because indeed in a field there is a greater novelty, for the profit is not immediate on Shabbat, but rather there may be some profit over the course of time. This is not the case with an oven, a bathhouse, and a shop, where the profit is immediate on the day of Shabbat and it is obvious that it is forbidden. And with this, the words of the Rambam are understood, as he wrote: "One who partners in labor or in merchandise or in a shop, etc.," and afterwards he wrote: "And so too if they received a field in partnership, etc." Thus far his words. And it is not understood why the field, which the Talmud mentioned, he mentioned at the end. Rather, it is because in the former cases the prohibition is more simple for the reason I have written; and examine this well).

There are some of our teachers who wrote that the prohibition regarding a partnership is only when the Israelite works one day during the week alone over against what the non-Jew worked on Shabbat alone, for then he is like his agent, as has been explained. However, if during all the days of the week both of them work together, and the non-Jew does not demand that the Israelite work one day alone, and of his own accord gives the Israelite half the profit of Shabbat—it is permitted to take it, for the non-Jew acts for his own sake. And even though through this profit reaches the Israelite, we have no concern with it, as with a sharecropper in siman 243. Furthermore, it is not called by the name of the Jew alone, for everyone knows that the non-Jew is a partner in this, as the prohibition is only when the Israelite works one day over against him (Ran ibid.). Nevertheless, he should not take the Shabbat wages except through inclusion with the other days, but by itself—no, for it appears like Shabbat wages (ibid.). Our teacher, the Rema, ruled accordingly in section 1. And even though in the wording of the Rambam it is not explicitly stated that the essence of the prohibition depends on this, yet the general statement is according to its explanation, for since he wrote that they stipulated that the Shabbat wages belong to the non-Jew and the weekday wages belong to the Israelite, see there—learn from this that it depends on this. Furthermore, it is presumably so, for the non-Jew certainly would not concede in this, as is the way of partners, but if it happened so—it is permitted (see Beit Yosef and Bach).

And similarly, this prohibition only applies when they themselves are engaged in the business with their actual bodies, such as a shop, a mill, a field, or the like. But if they themselves are not engaged at all—for example, an oven, where anyone who wishes to bake or cook kindles it, bakes, and cooks, and pays the rental of the oven for this, and similarly with a mill if they do so—they are permitted to divide the profit equally, provided that he takes the profit of Shabbat through inclusion. And the reason is that in such a case it is not relevant to say that he is his agent, since he does nothing (Magen Avraham, subsection 1). And if it is because they will say that the Israelite profits on Shabbat from the business of his oven—behold, everyone knows that the non-Jew has a portion in the oven, and he will not allow it to not be kindled on Shabbat; if so, he allows baking there for his own sake, and the profit reaches the Israelite automatically, as with a sharecropper, and as we wrote in the previous section.

And so it appears to me, that even in businesses that they conduct themselves, such as a shop and the like, if they themselves do not engage in the work at all, but rather they hire laborers to work in them—it is also permitted for the Israelite to receive the payment of Shabbat through inclusion, even if the laborers are day laborers. For what should we be concerned about? For the non-Jew, his partner, is not like his agent, since he does not perform the work himself. And if it is because the laborer is a day laborer, behold, if it were within his power to ensure they do not work on Shabbat—he would certainly be obligated to do so; but behold, his non-Jewish partner will not allow him to do so, and if so—he seats laborers for his own benefit, and the profit of the Israelite comes of its own accord, and he may take the payment of Shabbat through inclusion as in the previous laws (so it appears in my humble opinion).

And so too, if the oven or another business belongs to the Israelite alone, and he takes a non-Jew as a partner with him so that he will always stoke the oven and bake for anyone who wishes to bake, and in exchange for this he takes half the profit—he may divide with him even the Sabbath wages by way of absorption. For in this case it is not relevant to say that he is like his agent, since the Israelite is not required to do anything at all, and the non-Jew acts for his own sake. And this is like a kibulut, for he acts with his own interest in mind, and the profit of the Israelite comes automatically (Magen Avraham subsection 3 and the HaGr"z section 9). However, he should not say to him: "You take for the Sabbath and I for one day"—for in such a manner it is forbidden, as it is like giving Sabbath wages. And it is not comparable to an oven where they are partners in the essence of the oven, where the oven belongs entirely to the non-Jew, his half. But when the oven belongs to the Israelite alone—behold, in such a manner it is like Sabbath wages. Rather, they shall divide all the wages of the entire week in half (Tosafot ibid. in the name of our teacher Elchanan, see there), or into a third or a fourth, according to what they agreed upon between them. However, all this is in a place where it is permitted to rent out his oven to a non-Jew, according to the details that were explained in siman 243, section 13, such as where it is publicized that he does not hire day laborers, but rather something like a kibulut, or where the custom of that place is so, as is written there. But otherwise, since the oven belongs to him entirely—behold, it is forbidden to rent it to a non-Jew due to the reason of suspicion, as has been explained there.

There is a further permit when they are partners in the essence of the oven, that the Israelite may lease him his portion in kibulot, as our teacher, the Rema, wrote in section 3. This is his wording: "And if he desires to lease to the non-Jew his portion on Shabbat or in kibulot – it is permitted, as has been explained in siman 244 regarding customs and currency that it is permitted. And all the more so here – that it is permitted in partnership with a non-Jew," thus far his words. And behold, in kibulot, meaning that he gives him such-and-such for his portion – it is certainly permitted, for it is no worse than if the entire oven were his, and that is provided the kibulot is for all the days of the week, and the Shabbat wage will be included by absorption. But that which he permitted regarding his portion on Shabbat alone is perplexing, for it was explicitly explained there that only regarding customs and currency did we permit this, because it is a great loss, and also because the essence of the business is not his, as was explained there, and therefore there are those who rejected his words in this detail (Taz, subsection 3). And it must be said that the opinion of our teacher, the Rema, is this: since the non-Jew is his partner in the essence of the oven, and he will not allow them not to bake in it on Shabbat, and if so the Israelite has no power to prevent him – if so, what does it matter to me if he takes half the profit or if he agrees with him for such-and-such, and this is better than half the profit, as is understood. And his intention is not that he should explicitly mention Shabbat to him, but rather that he should say to him: 'Give me for my portion such-and-such per day' (and so it is implied from the Magen Avraham at the end of subsection 8 and from the Ha-Gra"z in section 14). And it is a simple matter that he must say this to him before Shabbat, and even after they have become partners (and therefore he wrote this in section 3, and examine it closely). And before they have become partners, he may even mention Shabbat to him in this manner, namely that he says to him: I will partner with you on this condition, that the days of Shabbat shall be entirely yours, and to me you shall give for this such-and-such (so it is implied in the Magen Avraham ibid. And according to this, the words of the Rema are interpreted in two ways. And this is not a Shabbat wage, but a mere condition that in this manner he will partner with him, that he will be obligated to him for such-and-such money, and on Shabbat it is entirely yours, and examine it closely).

It has already been explained that if they stipulated at the outset—it is permitted to say to the non-Jew: "You take your portion on Shabbat, and I will take against this one day from the weekdays." But without stipulating at the outset, rather they purchased normally in partnership—it is forbidden. However, for this there is a remedy, if he wishes to say so—they should nullify the previous partnership. That is, if they purchased in partnership—they should request from the seller that he return the money to them and they should tear up the bill of sale, and then they should make the stipulation between them and purchase from the seller with a new kinyan. Or if they formed a partnership in a shop or in another business—they should nullify the partnership and waive the stipulations between them to one another. And if they made a partnership contract—they should tear it up, and afterward make the stipulation and enter the partnership. And if they entered a partnership in a shop and both of them placed money or merchandise—they should nullify this, and take back the money or the merchandise, and make the stipulation and afterward enter the partnership. And we do not say that it is merely an evasion—for certainly it is so, for is it not within their power to nullify the partnership?! And granted that they do so because of some reason—nevertheless, who can protest against them? And so too afterward in the second partnership. And even if we call it an evasion—it is also permitted in a rabbinic prohibition even with a conspicuous evasion, as is proven in Shabbat regarding a ferry, 139b: see there, and as is written below in siman 339 in the Tur. And even though we only permitted there for a Torah scholar—this is in a matter of public display and very conspicuous, and not in this case, which is a commercial business done in private, and they have the ability to do as they wish, as I have written (and so it is implied in Rashi there, s.v. 'evarmah' which concludes: "to cross there before everyone," see there, and it implies explicitly that it does not refer to the first evasion regarding the faucets of garlic, because that is in private, see there and examine carefully).

The Rambam wrote in chapter 6 (halacha 18): "One who gives money to a non-Jew to trade with it, even though he buys and sells with it on Shabbat—he shares the profit with him equally, and so all the Geonim instructed." Thus far his words. And so it is permitted to give him merchandise in such a manner, for the Israelite does not command him to trade on Shabbat, and he acts for his own sake, since he has a share in the profit, or because he fixes a wage for him such that from every amount he redeems he will give him such and such, for then he acts for himself in order to profit more. But if he is a day laborer—it is forbidden, for he acts for the sake of the Israelite. Rather, certainly the permission is only where he fixed a fee, or where he has a share, and it has already been explained that one must receive the Shabbat profit through inclusion. And one should not forbid it due to the appearance of the eye, lest they say that he is the agent of the Israelite, since not everyone knows that this money and this merchandise belong to the Israelite (the Maggid Mishneh). And according to this, if the business is in a fixed location, such as in a shop or in another specific place, and everyone knows that this is the business of the Israelite—it is forbidden in any case, (see Shulchan Aruch section 245, subsection 2) and it is a simple matter.

And all this is when the non-Jew is the one working alone. But if each one works on his day, and in exchange for the Shabbat day that he works, the Israelite must work in exchange for it one day during the weekday—behold, he is his agent on Shabbat. However, if the non-Jew does not demand of him that in exchange for the Shabbat day the Israelite shall work alone one day during the weekday—it is permitted, and this has been explained from the previous laws. But when it is incumbent upon him to work one day in exchange for it—there is no remedy for this to benefit from the profit of Shabbat. Yet, if it is a great loss—one may rely on the opinion of the Rosh in section 7, that they shall work without specification and divide without specification, see there.

An Israelite who took an oven as a pledge for a loan to a non-Jew, and the non-Jew requested of him that the oven remain under his authority, and whatever rent the oven produces he will give him as profit for his money—it is permitted to receive from him the Shabbat wages even not through inclusion, because the body of the oven belongs to him and the Israelite has no portion in this, rather merely a lien. Furthermore, he does not tell him to work on Shabbat, but rather he works of his own accord for his own benefit, in order to pay the debt that he owes for the money, and if so, there is no prohibition here at all. And it is not specifically an oven, for the same law applies to another object in a similar case—it is permitted.

Our teacher, the Beit Yosef, wrote in section 6: "If non-Jews baked in the oven of an Israelite on Shabbat against his will (and they did not obey the Israelite, who did not want to allow them), and they gave him bread as payment for the oven—it is forbidden to benefit from it." Thus far his words. And likewise if they gave him coins, it is forbidden to benefit from them (Eliyah Raba subsection 7). And the reason for the prohibition is that it constitutes Shabbat wages. The Levush wrote the reason is because it was baked for him, see there, and according to this, if they gave coins—it would be permitted, but it does not appear so (ibid.). And likewise there is one who says that specifically ab initio it is forbidden to receive from them, but post facto—it is permitted (Shelah on the Mordechai), but it does not imply so from the wording of our teacher, the Beit Yosef. However, this is certain, if they baked also during the weekdays—it is permitted to receive from them the Shabbat wages as well by means of inclusion (Bach, end of siman 243). And in such a case it should be permitted even not against his will, except that it is impossible to depict this, for behold it is forbidden for him to allow them to bake in his oven on Shabbat. And there is one who says that even though he committed a prohibition—one should not prohibit the wages post facto by means of inclusion, since it is only because of the appearance of the eye (Mishnah Berurah subsection 23). And it is not clear, for we do not say this except in a place of great loss, but in this case—on the contrary, it is proper to penalize him, and such is the primary ruling.