The Prohibition of Amira Le-Nochri Instructing a Gentile to Perform Prohibited Melakhot
Several gemarot refer to the prohibition of amira le-nochri, instructing a gentile to perform melakha on Shabbat. Although a Mekhilta in Parashat Bo implies that this sub-prohibition is de’oraita, the gemara often employs language that clearly establishes it as a Rabbinic prohibition: “Amira le-akum shevut.” The Rambam (Shabbat 6:1) describes the reason for the Rabbinic injunction: If instructing a gentile to perform melakha were permissible, Jews might violate Shabbat themselves. Assuming that this is a Rabbinic law, how should the prohibition be defined?
Rashi (Avoda Zara 15) cites the prohibition of “daber davar” (based on the verse in Yeshaya 58), which instructs us to govern our Shabbat conversation to avoid non-Shabbat content. Material that should not be discussed includes finances and commercial activities or actions that are generally prohibited on Shabbat. By instructing a gentile to perform melakha, a person is effectively engaging in melakha-related conversation and violates the parameters of Daber Davar. Obviously, Rashi's innovation is that even casual instruction – rather than substantive conversation – is prohibited.
Even if we accept Rashi's position, it appears that the prohibition is based on additional halakhic categories. Firstly, the gemara in Bava Metzia (90a) considers the prohibition of amira le-nochri for any prohibition, even those that are not Shabbat related. This expansion could not possibly be based on an extension of daber davar, which is strictly limited to Shabbat. Secondly, the Ohr Zarua quoted by the Rema (OC 301:22) claims that even signaling non-verbal instructions would be prohibited, in a fashion which is clearly unrelated to daber davar. Finally, many Rishonim claim that even instructions delivered before Shabbat about melakha on Shabbat would be forbidden. This scenario cannot be based on daber davar.
Interestingly, Rashi in Shabbat (153a) asserts that a gentile becomes a shaliach for a Jew when he is instructed to violate a melakha. Through the halakhic agency of shelichut, the act of a gentile is considered as having been executed by the Jewish instructor. Typically, a gentile cannot operate as a shaliach for a Jew (based on a gemara in Bava Metzia 10b, which states that an agent must be a “ben brit”). However, Rashi in Bava Metzia 11b claims that Rabbinically, a gentile is considered a shaliach – at least for chumra applications. (The gemara bans a gentile from serving as a shaliach for one Jew to deliver an interest-loan to a different Jew; his shelichut agency would create a situation in which his Jewish dispatcher has violated ribbit.) Based on this validation of Rabbinic shelichut for a gentile, Rashi in Shabbat (153a) explains the prohibition of amira le-nochri based on the convention of shelichut. By assigning the Shabbat violation to a Gentile the Jew himself has “executed” the melakha through the dynamic of shelichut.
This idea is far more compelling that daber davar, since it accounts for the aforementioned applications of amira le-nochri that cannot otherwise be prohibited. For example, non-verbal signaling would deputize the gentile as a shaliach and lead to a prohibition, as the Ohr Zarua described. Similarly, pre-Shabbat designation would create shelichut identity, thereby associating prohibited activities performed during Shabbat with the Jew. Finally, the prohibition of amira le-nochri would clearly extend beyond Shabbat violations.
However, an interesting gemara in Bava Metzia (90) suggests that shelichut per se is not the foundation of amira le-nochri. The gemara explores a situation in which a Jew instructed a gentile to work with the Jew’s animal while denying work-time snacking for the animal, a blatant violation of “lo tachsom shor be-disho.” Many Rishonim (possibly including Rashi) indicate that the prohibition only applies if either the animal or objects being worked upon belong to a Jew. If the Jew instructs the gentile to employ the gentile's animal for the gentile's work, no prohibition applies. If the gentile were to become the halakhic shaliach of the Jew, his activity should be forbidden regardless of whether an object of Jewish ownership is involved. Evidently, the prohibition of amira le-nochri resembles shelichut, but it isn’t a classic shelichut application. Indeed, the Rosh and the Shulchan Arukh delete this prerequisite and prohibit any issur instruction, even if both animal and grains belong to the gentile. Perhaps they maintain that the prohibition of amira le-nochri is based upon classic shelichut and would obtain even in the absence of Jewish ownership of the accessories to the melakha. However the simple reading of the gemara does suggest that amira le-nochri would only apply if animal or grains belonged to the Jewish instructor.
The Ran is sensitive to this concept and claims that only work “of a Jew” is forbidden if performed by a Gentile. He cites the verse in Parashat Bo that states that work cannot be performed for a Jew (see Shemot 12:16 in which a “passive” verb of “lo yei’ase” is employed). Based on this grammar, the Mekhilta claims that a gentile cannot perform melakha, suggesting that the prohibition is Biblical. The Ramban and the Ran reject this notion, since so many gemarot identify the prohibition as Rabbinic. However, they claim that the Rabbanan modeled the prohibition upon the pasuk. Mi-de’oraita a Jew himself cannot execute melakha, but melakha may be performed through other instruments on his behalf. Though, Beit Shammai forbade passive melakha performance through a person’s keilim or inanimate objects, Beit Hillel reject this notion and limit the Biblical prohibition to personal activity and execution. The Rabbanan though stretched the prohibition to include activity performed by others on behalf of the Jew – namely, amira le-nochri. Mere instruction is not sufficient to define the work as being performed on behalf of the Jew. If the work benefits the Jew or is performed with his items, the melakha is considered “melekhet Yisrael” and forbidden.
Conceivably a different non-shelichut model for amira le-nochri may be suggested to justify the need for a "Jewish" object for a violation to occur. The gentile may not be a shaliach and the action of the melakha may not be attributed back to the Jewish dispatcher. After all, most positions deny even Rabbinic shelichut for a gentile. However, by instructing the melakha to the gentile the Jew has “caused” a melakha to be executed. Perhaps the prohibition lies in enabling a Shabbat violation to occur.
In fact, a seminal gemara in Bava Kama (60) suggests that Hilkhot Shabbat – unlike many other areas of Halakha – may not differentiate between direct executions of melakha and “caused” melakhot. Both situations may be prohibited. Of course, the Jewish dispatcher has not caused the melakha unless he both instructs as well as provides either the accessories to the melakha (the animal) or the object upon which the melakha is performed (the grains).