Yesterday, we noted the surprising comment of the Mekhilta in Parashat Bo (12:6) which seems to cast the prohibition of amira le-nokhri – asking a non-Jew to perform an act forbidden on Shabbat or Yom Tov – as a Biblical prohibition. The Torah formulates the prohibition of melakha (constructive work) on Yom Tov in passive terms – “no melakha shall be performed” – and the Mekhilta explains this to mean that one may not even ask others to perform melakha on his behalf. The question becomes how this comment of the Mekhilta may be reconciled with the Gemara’s explicit remark (Shabbat 150a) that amira le-nokhri is forbidden by force of rabbinic enactment.
A number of Acharonim suggested answering this question by distinguishing between asking a non-Jewish employee to perform melakha and asking others. Perhaps, the Mekhilta speaks specifically of the case of a non-Jew who is hired by a Jew – such as a housekeeper – and who thus acts as the Jewish employer’s representative. If a Jew asks his employee to perform on Shabbat an action which is forbidden for the Jew, the action is attributable to the Jew, and thus constitutes a Torah violation. When the Gemara speaks of amira le-nokhri as a prohibition enacted by the Sages, it refers to all other cases besides that of a non-Jew in the employ of a Jew.
The basis for this distinction is the position taken by the Machaneh Efrayim (Hilkhot Sheluchin, 11) which draws a similar distinction with regard to the halakhic concept of shelichut (agency). Generally speaking, only a Jewish agent has the halakhic status as a legally empowered shali’ach (“agent”) whose actions on behalf of his dispatcher are binding. However, the Machaneh Efrayim asserts that this rule does not include non-Jewish employees. A non-Jew who is hired by a Jew can serve as his halakhic shali’ach, and any legal action he takes on the Jewish employer’s behalf is effective. Accordingly, some Acharonim suggest applying this distinction to the laws of Shabbat and Yom Tov, such that a melakha performed by a non-Jew at the behest of his Jewish employer is directly attributable to the employer, who is thus guilty of desecrating Shabbat. Although asking a gentile to perform melakha on one’s behalf on Shabbat is generally forbidden only on the level of rabbinic enactment, in the case of a hired worker, it constitutes a Torah violation.
The Maharam Shick, in the responsum noted yesterday (O.C. 100), dismisses this approach. He argues that a non-Jewish employee’s status vis-à-vis the legal institution of shelichut has no bearing on his status vis-à-vis Shabbat violations. The Maharim Shick draws proof from the Gemara’s discussion in Masekhet Kiddushin (41b) regarding the provision that a Jew cannot appoint a non-Jew to separate teruma (the mandatory gift to the kohen) from his produce on his behalf. The Gemara cites Rabbi Yannai as inferring from a Biblical source (“gam atem” – Bamidbar 18:28) for this law, and the Gemara then wonders why a source is necessary. This restriction follows logically, the Gemara argues, from the fact that an agent is capable of representing his dispatcher only if he is included in the relevant laws. As a non-Jew is not required to separate teruma from his own produce, he cannot serve as an agent to separate teruma for a Jew. The Maharam Shick notes that the Gemara could have perhaps answered this question by suggesting that Rabbi Yannai referred to the case of a non-Jewish employee. If an employee is treated differently than other gentiles, and can serve as the legal arm of his Jewish employer, than conceivably, the inference from the verse is necessary to instruct that even a non-Jewish worker cannot separate his employer’s teruma, despite the fact that generally, non-Jewish employees can serve as agents for their Jewish employers. The fact that the Gemara did not suggest this answer, the Maharam Shick claims, indicates that it saw no distinction between employees and others as far as the fulfillment of mitzvot is concerned. Even if we accept the Machaneh Efrayim’s premise that a non-Jewish employee can serve as a halakhic shali’ach, this applies only to legal actions, not to religious acts. Hence, with regard to actions such as designating teruma, or desecrating Shabbat, Halakha treats non-Jewish employees no differently than other non-Jews, who do not attain the status as a halakhic shali’ach.