Siman 246

The Rambam wrote in chapter 6, law 16: "It is permitted to lend vessels and to rent them to a non-Jew, even though he performs work with them on Shabbat—because we are not commanded regarding the resting of vessels. However, with one's animal and one's slave—it is forbidden, because we are commanded regarding the resting of an animal and a slave." Thus far his words. And since the Rambam did not write that on Erev Shabbat it is forbidden to lend and rent vessels—one may infer from this that he holds that even on Erev Shabbat it is permitted, even though it was taught in a baraita: (19a) "A person may not rent his vessels on Erev Shabbat to a non-Jew; on Wednesday and Thursday—it is permitted," he holds that the halacha is not so, and such is the opinion of the Rif who omitted this baraita, see there. (And he holds that it follows Beit Shammai, who hold of the resting of vessels, as is explained there 18a. And the Tosafot raised a difficulty, that if so, on Wednesday and Thursday also, see there. And it seems to me that since lending and renting are somewhat of an acquisition, though not entirely as will be explained—therefore on Wednesday and Thursday we are not concerned, for perhaps he will not perform a Torah prohibition with them on Shabbat, but on Erev Shabbat they were concerned, and examine this closely).

But our teachers, the authors of the Tosafot, and most of the poskim hold that this baraita is the law, and the reason is not due to the resting of vessels—but rather because when one rents it out on Erev Shabbat, it appears as if he is taking payment for Shabbat; see there. And even though the payment for Shabbat is included in a global sum with the other days, for if it were not so, it would be forbidden in any case to take payment specifically for the day of Shabbat, nevertheless, since he rents it out on Erev Shabbat such that the first day of the rental begins from Shabbat—it appears like payment for Shabbat and is forbidden. And if he rents it out and calculates each day individually—it is forbidden even on Wednesday and Thursday, for this is literally payment for Shabbat. And according to this interpretation, there is a prohibition with all types of vessels, even those with which no melakhah is performed, to rent them out on Erev Shabbat.

And there is another approach of our teacher Yonah, who interprets this baraita not regarding all vessels—but rather regarding vessels with which work is performed, such as an ax, a plow, and the like. And it is not because of the resting of vessels, but because when one leases such a vessel to him on Erev Shabbat, and the non-Jewish lessee begins to perform work with it on Shabbat—it appears like the agent of the Israelite to perform his work on Shabbat. But vessels with which work is not performed—it is permitted to lease even on Erev Shabbat, for it does not appear like Shabbat wages, since he leases for a week or for a month and the Shabbat is included in the total. And the proof for this is that if we say that when one leases on Erev Shabbat it appears like Shabbat wages—if so, why specifically to a non-Jew, even to a Jew it should be forbidden for this reason. (Rosh ibid.) And if you ask, since they were not concerned for this, why were they concerned that they would say he is his agent. For one can say the reason is because it is not the way to lease for a price for each day individually but rather for a week or for a month, and it is included in the total and there is no suspicion in this. But in this—there is certainly reason to suspect that he is his agent to perform his work. (And behold, the Tur and the Shulchan Aruch did not bring the opinion of the Tosafot at all and it requires further study, for most of the poskim hold like the Tosafot. And the Beit Yosef wrote that Rashi holds like the Ri, see there, and perhaps since according to the Rif and the Rambam it is permitted in every case, and also Rashi does not hold like the Tosafot—therefore they were not concerned to bring this opinion, and examine this closely).

And this applies to rental, but to lend him a vessel is permitted even on Erev Shabbat. And it is not only necessary according to the approach of the Tosafot, for regarding lending the concern of "appearing like payment for Shabbat" is not relevant, since he takes nothing; but even according to the approach of our teacher Yonah, who deals with a vessel used for labor, where the prohibition is because it appears like his agent to perform his labor—nevertheless, regarding lending they were not concerned for this. For the concern is only when the Israelite takes money and a benefit reaches him through the fact that the non-Jew uses it on Shabbat; there they rightly concerned themselves that perhaps people will say so. But regarding lending, they were not concerned. And a proof for this is from what will be explained in siman 252, that it is permitted to give hides to a tanner and vessels to a launderer on Erev Shabbat. And why were they not concerned that people would say he is his agent? Rather, it is because there no benefit reaches the Israelite by what he does on Shabbat, and it is not so regarding rental. (See Beit Yosef).

Our teacher, the Rema, ruled like our teacher Yonah, and his reasoning appears to me to be because it is a middle opinion between the Rif and the Rambam, who permitted renting out all vessels on Erev Shabbat, and the opinion of the Tosafot and the Smag and other poskim who forbade all vessels, as has been explained. Our teacher Yonah permitted vessels with which work is not performed and forbade vessels with which work is performed, and the halacha follows the mediating opinion. He further wrote that it is permitted to lend to him on Erev Shabbat even though he stipulates that the non-Jew will return the favor and lend to him, and we do not say in such a case that it is like renting. Thus far his words. That is to say, even though this is like a form of renting—for what difference does it make to me if he pays him with money or with the use of vessels—nevertheless, since it is not in the manner of actual renting, they were not concerned for this (Beit Yosef) in a matter that is only a concern of suspicion.

But on Shabbat itself—it is forbidden to lend any vessel to a non-Jew. And not only that, but even on Erev Shabbat, if it is close to darkness in a manner that the non-Jew does not have time to take it out of the house of the Israelite before darkness—it is also forbidden. And the reason was written by the Rambam there, that when he exits the house of the Israelite on Shabbat—it will appear as if he lent it to him or took it as a mashkon or finalized a price with him or sold it to him on Shabbat. Thus far his words. And according to this, it is forbidden even in a city where there is an eruv, and it is permitted to carry. But our teacher, the Beit Yosef, in section 2 wrote the reason, because the observer will think that the Israelite commanded him to take it out. Thus far his words. And this reason was written in the Sefer HaTerumot, that they will suspect that the Israelite commanded to take out his object to the reshut harabim, and amirah l'akum is a shevut. And according to this, in a place where there is no reshut harabim but only a karmelit, which is only a shevut—it is a shevut d'shevut, and we do not decree a decree of "perhaps they will say" regarding a shevut d'shevut. (Taz, subsection 3) Or it is possible that even regarding a shevut d'shevut we decree, (Magen Avraham, subsection 6) however, in a place where there is an eruv—there is no concern here at all. And one must look further into the words of our teacher, the Beit Yosef, who omitted the words of the Rambam, for according to the Rambam it is forbidden in every case. (ibid.) And it appears that since the Sefer Mitzvot Gadol and the Sefer HaTerumot omitted his reason and were not concerned for it—therefore he also omitted it. (Eliyah Rabbah, subsection 8) And nevertheless, one should be concerned for his words and one should not be lenient except in a time of need, and likewise if the matter is recognizable that it is a loan—it is also permitted even according to the Rambam, for in such cases there is no concern at all, as is understood.

And if he truly sold it to him on Erev Shabbat, or gave it to him as a pledge, or to perform work with it, or lent it to him for a period longer than thirty days—which is like a sale, as I wrote above in siman 14—according to everyone, he must exit the door of his house while it is still day, even in a place where there is an eruv. This is because there is a concern that it might become known to one who sees him exiting the house of an Israelite that the Israelite sold it to him, or pledged it, or gave it for work, or lent it as mentioned, since such is the truth, and they will suspect him of having done so on Shabbat. This is not the case with an ordinary loan; when the truth becomes known to him, there is no suspicion at all, even if it appears to him that he lent it on Shabbat, for behold, it is permitted to lend on Shabbat. And know, that all these matters apply when the objects belong to the Israelite. But objects of a non-Jew that were deposited in the hand of an Israelite and he comes to take them on Shabbat—he may take them even if he carries them out to the reshut harabim, as I wrote in siman 325 (the HaGra"z).

And this is all regarding vessels, for we are not commanded concerning the resting of vessels. However, it is forbidden to lend one's animal to a gentile even in the middle of the week if it is capable of labor, such as an ox standing for plowing or a horse that pulls a wagon and the like, because he will perform labor with it on Shabbat, and the Torah said: "so that your ox and your donkey may rest." And likewise, he shall not lend him his manservant or maidservant who are acquired by him, as it is said: "so that your manservant and your maidservant may rest like you." Only for them is it within the power of the owner to warn them that they should not perform labor on Shabbat, but an animal is not possessed of intellect. And even though the borrower promises him that he will not perform labor with it on Shabbat—he is not believed. And it appears to me that if he leaves a collateral in the hand of the Israelite, and stipulates that if it becomes known that he performed labor with it on Shabbat the Israelite shall take the collateral absolutely—it is permitted, for behold he will be afraid to perform labor with it on Shabbat, lest the Israelite find out and he lose his collateral, and see in siman 305.

And likewise, it is forbidden to rent one's animal to a non-Jew who will perform labor with it on Shabbat. And even though for matters of acquisition and the laws of ona'ah, rental is like a sale, and rental for the duration of the rental period is a sale (Bava Metzia 56b), this is only for these specific details. However, it is not truly like that of the renter, for the body of the animal belongs to the lender, and the Sages explicitly said in the chapter "Before their festivals" (Avodah Zarah 15a) that rental does not effect an acquisition. And there is one who wishes to say that for a stringency it is an acquisition, and according to this, an Israelite who rented an animal from a non-Jew would be forbidden to allow it to perform labor on Shabbat (see Magen Avraham subsection 8 and Bach in Choshen Mishpat at the end of siman 312). However, it is explicitly proven there that even for a stringency it is not an acquisition. (And the Shach there in siman 313 subsection 1 already disputed the Bach regarding this, and the proof is from an Israelite who rented a cow from a kohen, for he may feed it t'rumah vetches. And even though Tosafot wrote there that its sustenance is the responsibility of the kohen, as the Magen Avraham cited, they wrote so for a different reason, for if not so, how could he feed it t'rumah, see there. And in truth, the Rosh at the end of Terumot wrote not like the Tosafot, and its sustenance is the responsibility of the Israelite, and despite all this he feeds it t'rumah, see there; and if so, it is explicitly proven from the Rosh that even for a stringency it is not a sale, and examine this carefully).

And it is of no avail for him to make a condition with him that he shall not perform work with it on Shabbat and also that he shall not receive rental for Shabbat, because he is not believed, unless he is afraid that he will lose out by this, as I have written in the Responsum. However, he may lend it or rent it on the condition that he returns it to the Israelite before the Shabbat, and regarding this, the issue of being believed does not apply, for he will certainly lose out by this, as he will sue him in the secular courts for not fulfilling his condition. Nevertheless, if it so happened that he lent or rented it on this condition and he did not return it to him, our teacher, the Beit Yosef, ruled in section 3 that he should declare it ownerless to himself before the Shabbat, or say: "My animal is acquired by him," in order to be saved from a Torah prohibition. Thus far his words. And our teacher, the Rema, wrote regarding this, that if he wishes he may declare it ownerless before three people according to the law of other ownerless property, and even so, no person can take possession of it, for certainly his intention is only to remove the Shabbat prohibition from himself. Thus far his words. And his words require explanation.

And the explanation of the matters is as follows: one who wishes to declare an object hefker—according to the Torah it is hefker even when he declares it hefker privately, but according to the rabbis it requires three. This is the wording of the Gemara at the end of the fourth chapter of Nedarim: (45a) "By Torah law—even before one it is hefker, and for what reason did they say before three—so that one may acquire it and two may testify," and so it is in the Rambam, chapter 2 (halacha 16) of Nedarim, see there. Many understood that the Rambam holds that in any event one is required according to the Torah, but the Tosafot and the Rosh there wrote that the same law applies even privately, see there. According to this, even from the Rambam there is no proof that one is a requirement, and we have already written this in the name of one of the great authorities in Choshen Mishpat siman 273 section 7, see there. According to this, the Tosafot and the Rosh wrote there, that in a case such as this where the non-Jew did not return the animal to him—he may declare it hefker privately like the words of our teacher, the Beit Yosef. And it appears to me that the reason they did not require it before three is because there is a concern that another will acquire the animal.

But the Tosafot in Shabbat (18b, s.v. "demafkra") wrote that one must declare it hefker specifically before three people, and this is explicitly written in the Tosafot Yeshanim there, see there. And it seems to me regarding their reasoning: first, since by rabbinic law three are required; and furthermore, if he declares it hefker by himself—there is still a concern of suspicion for the observer, who will say that the animal of an Israelite is performing labor on Shabbat. And this is why our teacher, the Beit Yosef, was precise to say "in order to be saved from a Torah prohibition," meaning that a prohibition of marit ayin still exists, but because of this we shall not impose upon him that he lose his animal if another person should acquire it. And for this came our teacher, the Rema, [stating] that he can declare it hefker before three, so that it will be a complete hefker by rabbinic law and also the prohibition of marit ayin will not exist, for through three people it will become publicized that he declared it hefker. And nevertheless, no damage will reach him, for no other person can acquire it, because we are witnesses that he only declared it hefker so that he would not violate the prohibition of the resting of his animal. And one should not ask that if so, what kind of hefker is this, for there is a tactic for this: that he declare it hefker only for the day of Shabbat alone, for hefker for a limited time is considered hefker, as is written in Choshen Mishpat siman 273 section 8, for in the Yerushalmi, chapter 6 of Peah, they derived hefker from Shemittah, as we explained there; and on Shabbat a person is not permitted to acquire it, for the authority of the non-Jew is still upon it, and after Shabbat it returns to him, as our teacher, the Beit Yosef, wrote in his great work. (See Taz, subsection 5). And our teacher, the Rema, says that even if he did not explicitly state this—we say that this was his intention. (See Magen Avraham, subsection 11, for it is implied from his words that even when declaring hefker so that no person shall acquire it—it is effective, even though it is not a complete hefker, and as the Machatzit HaShekel wrote. And see Pri Megadim on the Taz, letter 5, and these are puzzling matters, and therefore it seems in my humble opinion that the main point is as I have written, and examine it well).

Nevertheless, ab initio it is forbidden to rent or to lend to a non-Jew based on the reliance that he will declare it ownerless before three people on the eve of Shabbat. And there is one who permits doing so ab initio (Magen Avraham, subsection 9 in the name of the Bach), but one should not rely on this except in a case of great necessity, such as when he is forced by the decree of a minister to lend it or to rent it and the like. But without this—Heaven forbid to rule permissively ab initio in this matter; and even regarding sale, it is not permitted that he sell it for the day of Shabbat alone, but rather he must sell it completely (Magen Avraham, ibid.).

And regarding that which our teacher, the Beit Yosef, wrote: "Or he shall say: 'My animal is acquired to the non-Jew'", there is one who says that he must specifically say to him in his presence, "My animal is acquired to you." (Ibid. subsection 10) And an acquisition through another person is not effective, for acquisition is based on the principle of agency, and he has no agency, as is written in Choshen Mishpat siman 182. (Machatzit HaShekel ibid.) And one should not ask what use is a mere statement, for a mere statement is not a formal act of acquisition. For it can be said that since it stands in the domain of the non-Jew, automatically when he says to him "My animal is acquired to you" - his domain acquires it for him, and he possesses the acquisition of a courtyard, unlike that which one of the great authorities questioned regarding this, and we explained this in Choshen Mishpat siman 194 section 12, see there. And according to this, it is possible to say that the words of our teacher, the Beit Yosef, are well-settled, that it is sufficient to say this not in the presence of the non-Jew. And the reason is, that even though in every acquisition the intent of the acquirer is also required, it is different here as he is a complete robber, for he stipulated with him to return it on Shabbat and he does not return it; if so, his intention is to rob it, and automatically when he says "My animal is acquired to him" - it is no worse than despair, and there is here despair and a change of domain, and automatically his courtyard acquires it for him. (So it appears in my humble opinion, and see Eliyah Rabbah subsection 11 who also agreed with the Beit Yosef for another, forced reason, see there; and the transfer of ownership is as a gift).

There are those who say that only on Shabbat are we commanded regarding the resting of our animals and not on Yom Tov (Rema, section 3), for "so that your ox and your donkey may rest" (Exodus 23:12) and likewise "you shall not do any labor, you... and your animal" (Exodus 20:10) - are written regarding Shabbat and not regarding Yom Tov, for regarding Yom Tov it is written: (Exodus 12:16) "no labor shall be done in them" - and this refers to the person alone. And it appears to me that according to this opinion, the resting of a male and female slave is also not on Yom Tov, for they are written regarding Shabbat and not regarding Yom Tov. And there are those who say that Yom Tov is like Shabbat, and it was explicitly taught in a Mishnah: "There is no difference between Yom Tov and Shabbat except for food preparation alone," and in the Jerusalem Talmud, chapter 5 (halacha 2) of Beitzah, they said that one may not ride upon an animal because of the resting of his animal. (The Rashal in Yam Shel Shelomo there, and see Magen Avraham subsection 12 who agreed with the Rashal, but the Taz, siman 495 subsection 3, agreed with the Rema, see there; and the Beit Yosef later in siman 495 in his great work is also like the Rashal, see there).

And regarding the halacha: there are those who ruled to prohibit (the Gra and the Graz), and there are those who ruled to permit (the Tosafot Yom Tov at the end of the second chapter of Beitzah and the Pri Chadash later in siman 495). And know that even according to those who hold that there is shevitat behemah on Yom Tov—this is only regarding performing a labor on it that is forbidden on Yom Tov, such as plowing and the like. But to have it carry a load on Yom Tov—there is certainly no prohibition from the Torah, for on Shabbat the prohibition is in a reshut harabim and not in a courtyard, as I wrote in siman 305, and on Yom Tov there is no difference in this, for on Yom Tov there is no prohibition of hotza'ah. And if you were to say that on Yom Tov it is forbidden even in a courtyard—it would result in Yom Tov being more stringent than Shabbat. Furthermore, we explicitly say in Shabbat (153b) that it is impossible to prohibit regarding an animal more than regarding a person, and on the contrary, an animal is more lenient; see there. Also the prohibition of mechamer after one's animal, which we derive from "you shall not do any labor, you... and your animal" (ibid.)—is not applicable on Yom Tov except according to the opinion of the Rashba, who holds that the prohibition of mechamer applies even in a courtyard. But the Ran in the chapter 'Lifnei Ideihen' rejected his words, and wrote that mechamer is only in a reshut harabim, and so wrote the Rivash in his responsa (siman 24), and consequently this too is not applicable on Yom Tov. And so the Ramban wrote explicitly in the fourteenth root for the enumeration of the mitzvot—that there is no mechamer on Yom Tov; see there. (For he deals with the matter of mechamer and wrote that this is not applicable on Yom Tov and Shevi'it; see there. And according to this, the words of the Gemara in Beitzah 37b are well-settled, where it states as the reason "and we do not ride upon an animal"—a decree lest he cut a branch, and it did not say—because of shevitat behemto, because on Yom Tov this shevitah does not exist. However, even the Rambam regarding Shabbat in the first chapter wrote the reason of the Gemara, and it must be said because a living being carries itself. And the Yerushalmi in Beitzah there which says because of shevitat behemto, see Magen Avraham subsection 12 who wrote that its explanation is lest he go outside the techum, and also because it is a source of pain to it as will be explained in the next section; and delve into this.)

Ostensibly, since a person is commanded regarding the resting of his animal on Shabbat—meaning that it should not perform labor that is forbidden to us—if so, we should not allow it to stand upon grass and eat, for it detaches them from the ground. However, in the Mechilta Mishpatim (Parasha 20) it is taught: "So that your ox and your donkey may rest"—the verse added another form of rest for it, to be detaching from the ground and eating. Or perhaps it means only that one should confine it within his house—you must say this is not rest but rather suffering; see there. (Tosafot Shabbat 122a, starting with the words "Ma'amid," cited this in a different wording; see there.) And it appears to me that it is a mere asmakhta, for if not so, we would say the same regarding a male slave and a female slave, for it is written there: "And the son of your handmaid shall be refreshed," and it is certain that they are forbidden in all labors just like the owners themselves. (And one should not distinguish between the expression "rest" and the expression "be refreshed.") However, the matter is thus: certainly regarding the animal, which possesses no intellect at all, the prohibition of labor does not pertain to it, and the prohibition is upon the owner when he performs labor with it. But without the owner—that is to say, in a matter where the labor does not concern himself—the prohibition does not pertain to it, and therefore they said in Shabbat there: "A person may stand his animal upon grass." But the male slave and female slave who possess intellect—the prohibition is incumbent upon them, and the owners are commanded to supervise them so that they do not perform any labor. Furthermore, regarding them it is written in the latter Decalogue: "So that your male slave and your female slave may rest like you." (And according to this, one could say that it is a complete derivation, and regarding the male slave and female slave the verse included them; and examine this carefully).

There is one who says that regarding a non-Jew riding upon the animal of an Israelite—one need not be concerned, for a living being carries itself; however, one must be concerned regarding the saddle that is beneath the rider. But to ride outside the techum is forbidden. (Ateret Zekenim). And this is not at all clear, for in any event she suffers, and according to the Mechilta that we brought—it is a complete prohibition. (And he brought this in the name of the Levush, siman 305, but it is not found so in the Levush). And it is not similar to that which it is permitted to sell a horse for this reason, as the Rambam wrote in chapter 20, for there it is a mere concern because of testing it close to sunset, as it is found in "Lifnei Ideihen," and they were not concerned in such a case. This is not so regarding allowing him to ride—it is certainly forbidden. And know, that even though the resting of his animal applies only to his own animal, nevertheless, regarding driving an animal—the prohibition is equal whether with his animal or with the animal of another, even that of a non-Jew, for since she hears his voice and goes because of him—there is no difference, for behold, this prohibition, he himself performs it. (Ran in the chapter "Lifnei Ideihen").

Our teacher, the Beit Yosef, wrote in section 4: "An Israelite who rented oxen to a non-Jew to plow with them and he plows with them, some permit it if the non-Jew accepted upon himself responsibility for death, robbery, theft, price increases, and price decreases; and some say that since he cannot sell it if he wishes, it is called the animal of an Israelite." Thus far his words. And the primary view is like the first opinion, for so our teacher, the Rema, wrote without qualification in section 5; see there. (And this is what he noted to see there). Furthermore, also regarding the matter of interest the law is so, as is explained in Yoreh Deah at the beginning of siman 177; see there. But if he did not accept upon himself price increases and price decreases, it is forbidden. Nevertheless, I am wonderstruck, for granted that regarding the essence of the prohibition it is permitted, nonetheless there is the issue of marit ayin. And perhaps they relied on what is written in siman 244, that in a place of great loss we are not concerned for this; see there. However, I do not know if this is called a great loss. Therefore, one must say either that he should publicize that he accepted all responsibility upon himself, or for example where it is not yet known that these oxen belong to the Israelite, or for example where he works with them outside the techum, for in such cases even in building it is permitted, as is written there.

The matter appears simple to me, that when an Israelite and a non-Jew are partners in an animal, if the non-Jew performs labor with it on Shabbat—the Israelite violates the resting of his animal. And if he is able to protest against him—he is obligated to protest, and if he is unable to protest—he should not enter into partnership with him except in permitted ways, as will be explained. And so wrote in the responsa of the Ritzba, the author of the Tosafot (brought in the Hagahot Maimoniot chapter one and in the Beit Yosef at the end of siman 245), and this is his wording: "And regarding what you asked about an Israelite and a non-Jew who have fields and oxen in partnership, regarding the fields there is no prohibition... but regarding the oxen—it is to be prohibited, for a person is commanded regarding the resting of his animal, and he finds no remedy unless he sells, etc." Thus far his words. And so the words of our teachers, the authors of the Shulchan Aruch, incline in the entirety of section 5, see there, and as will be explained. (And the Magen Avraham, subsection 13, brought in the name of the Rivash that there is no issue of the resting of his animal in this, since the non-Jew has a portion in it, see there. And there is a stumbling block in this for those who study it, for the Rivash in siman 151 wrote explicitly that it is because the non-Jew will not obey and will act against his will, and on the contrary, he wrote at the end, and this is his wording: "And regarding the resting of his animal—there is none, since he acts against his will on account of his own portion, but rather that he committed a prohibition from the beginning by partnering with him, etc." Thus far his words, and the Magen Avraham was brief according to his custom, and examine this well).

If the Israelite wishes to enter into a partnership with the non-Jew regarding an animal that performs labor—he should act as was written in the previous siman regarding a partnership in a field or an oven and a bathhouse, which is to say that he should make a condition with him at the time of purchase, that the non-Jew shall take everything that arises from it on Shabbat, and he will take one of the weekdays in its place, and at the time of the accounting, this one will take the profit of Shabbat and this one the profit of the weekday, and in a case of loss—they can also divide equally, as was written there. And then, even if the responsibility of both of them is equal on all days of the week—it is permitted, for ultimately he stipulated that on the Shabbat day it belongs entirely to the non-Jew. But if he did not stipulate at the beginning, if he says to him afterward, "You take the Shabbat day and I the weekday"—behold, he is his agent on the Shabbat day, as was written in siman 245. Rather, the non-Jew shall take the wages of all the Shabbats, and those of the weekdays—they shall divide, as was written there. And he still caused a prohibition, for half of his animal performed labor on Shabbat, even though he cannot prevent the non-Jew from working on Shabbat—he should not have entered into a partnership with him in this manner, as was written in the previous section. (And the Magen Avraham there wrote in such a case that they should divide without specification—this is according to our teacher, the Rema, there and in a case of great loss, as he himself wrote, and examine it closely).

And in any case, a remedy may be found even if they did not stipulate at the outset, aside from the remedy in siman 245 to nullify the partnership and stipulate at the outset. Namely, that he should lend it to the non-Jew as a complete loan, such that he has the authority to spend it without the permission of the Israelite, and he shall record the money as a debt against the non-Jew, and the non-Jew shall also accept the responsibility for the oxen. And there are those who permit even if it is not within the power of the non-Jew to spend it without the permission of the Israelite, by recording the money as a debt against the non-Jew as a loan, and the non-Jew shall make the animal an apoteiki to the Israelite. This means that if he does not pay him the money, he shall collect from the animal, and he shall collect only from the animal and not from anything else. Or, that he shall take the animal as a mashkon into the hand of the Israelite, and the non-Jew takes it and works with it, and the non-Jew says: "If I do not pay you the money, you shall collect from the animal." However, he must be careful that the non-Jew does not say: "If I do not pay you, the animal shall be yours from now," for then when he does not pay, it turns out that it belonged to the Israelite, as is written in siman 441.

Our teacher, the Beit Yosef, wrote another permission in section 5, and this is his wording: "And there are those who permit by means of the Israelite warning the non-Jew not to perform labor with it on Shabbat, and if he transgresses and performs [labor]—the responsibility for it shall be upon him even for accidents, and he shall write this in their courts. For now, if he comes to perform labor with it on Shabbat—it is not the animal of an Israelite, for the non-Jew has acquired it to be liable for its accidents." Thus far his words. And that which he wrote "that he shall write this in the courts"—is not specifically so, and the main intent is that he shall publicize this so that there will be no suspicion. And one should not ask what the acceptance of responsibility avails, for even according to the first opinion in section 4, he must also accept upon himself price increases and decreases, as I wrote in section 19. And it must be said that this is when the entire animal belongs to the Israelite, but when they are partners—acceptance of responsibility alone is sufficient, when he warns him not to perform [labor] on Shabbat. And there are those who explain that here too the intent is that he acquired it also regarding price increases and decreases (the Grah"a), but if so, the main point is missing from the book, for he only mentioned accidents, and so it implies explicitly in his great book at the end of siman 245, see there. (And so wrote the Eliyah Rabbah in subsection 13). And the reason is that a borrower, because of his liability for accidents—it is like his, except that nevertheless this is not an acquisition. And this is when he borrows with his consent, but without his consent—he is like a robber, and it is entirely like his. Therefore, when he stipulated not to perform [labor] and if he performs [labor] it is in his possession for accidents, and since he transgressed—he is like a robber, and it is like his. (So it appears in my humble opinion).

Our teacher, the Rema, wrote that all these aspects of permission are the halacha, and one may do whichever of them he desires; even if the animal belongs entirely to an Israelite, its law is as if it were in partnership with the non-Jew, provided only that he publicizes that he acted by way of permission. Thus far his words. And he holds that even if it belongs entirely to an Israelite, since he deviated and became liable for accidents, it is like his own for the reason we explained. And all these permissions apply when the non-Jew performs his own work. But to perform the work of the Israelite, these permissions are of no effect, for it is forbidden for the Israelite to allow his work to be done for him, unless he sells the entire business according to the law with a complete sale and publicizes the matter, as I wrote at the end of siman 244, see there. (See Tosefot Shabbat subsection 15 who wrote regarding what was written in the Shulchan Aruch, that they should warn him not to perform work with it on Shabbat and if he violates this the responsibility shall be upon him, that one must say "from now" so that it will not be an asmakhta, see there).