Building on Shabbos

Last month, a controversy erupted in Israel when the newspaper Yated Ne'eman criticized a ruling by R. Avi Gisser, the rabbi of Ofra (link). If I understand the situation correctly, there is a piece of land where Jews were building homes on land whose ownership was contested by Arabs. R. Gisser ruled that the homes may be built on Shabbos by gentile workers so that Jewish families could move in before the courts ordered that the building cease. Yated condemned this ruling as improper. Setting aside the issue of correct ownership, which is important, I would like to address the Shabbos issues.

Click here to read moreI. Amirah Le-Nokhri

A Jew is not allowed to ask a gentile to perform forbidden labor on Shabbos. If a Jew can't do it, he can't have a gentile do it for him. However, if the Jew pays the gentile for a project rather than by the day, then the gentile can choose whether he wants to do it on Shabbos. For example, if a dry-cleaner cleans your clothes on Shabbos, it doesn't matter because it is his choice to do that work on Shabbos and you are only paying by the suit and not hourly or daily wages.

An exception to this is property work. Because people know who owns property, a gentile cannot do work on a Jew's property on Shabbos even if he is being paid by the project. People will not know about the payment arrangement and might assume the worst. Because of this potential for suspicion and confusion -- chashad, the law is very strict about gentiles working on Jewish property on Shabbos. This is all explained in Shulchan Arukh, Orach Chaim 242.

When the prevalent practice in a community is to pay workers by the project, then there would seemingly be no concern of chashad because everyone would assume that the workers on someone's property are being paid by the project, which is permissible. The Mishnah Berurah (242:7) quotes the Taz who prohibits this, R. Akiva Eiger and the Peri Megadim who permit it, and concludes that you should be strict regarding a house. In other words, you may not hire gentile workers to work on your house on Shabbos.

However, R. Moshe Feinstein (Iggeros Moshe, Orach Chaim 3:35) argues strongly against the Mishnah Berurah and claims that, in theory, this should be entirely permissible. He is not even concerned with guests from out of town who might not be faimilar with the community's practice of paying workers by the project because today it is so common throughout the country, if not the world. However, for explicit public policy reasons he does not allow this.

II. Amirah La-Amirah

There was a serious problem in war-torn Pressburg in the mid-1800s. Houses had been destroyed during war and there was ample work for builders. However, when Jews would insist that the builders cease work on Shabbos, they would find another house to work on and not return to finish the Jewish house. This was causing a severe housing crisis in the Jewish community. R. Moshe Sofer, the Chasam Sofer, relied on the following reasoning as the main basis of his lenient ruling (Responsa Chasam Sofer 1:60) allowing Jews to hire builders to work on Shabbos:

The Chavos Ya'ir (nos. 46, 53) had argued that while a Jew may not ask a gentile to perform a forbidden labor on Shabbos, he may ask a gentile to ask another gentile to do so. If a Jew hires a contractor, who then hires other workers to do the actual building, then it should be allowed on Shabbos. The Chasam Sofer added other conditions to his leniency and the housing crisis was certainly a mitigating concern. However, his precedent should not be entirely ignored. (I saw a responsum of the Kesav Sofer [no. 40], the Chasam Sofer's son and successor, quoted on this subject but I was unable to look it up.)

III. Yishuv Eretz Yisrael

Daf Yomi students can tell you that the Gemara (Gittin 8b) allows asking a gentile to sign documents for you on Shabbos in order to acquire land in Israel. Even though this is normally rabbinically forbidden, the mitzvah of settling the land of Israel sets aside this prohibition. The Shulchan Arukh (Orach Chaim 306:11) rules this way, as do all subsequent halakhic codes.

The Satmar Rav (Va-Yo'el Moshe, Ma'amar Yishuv E"Y ch. 63) suggests that this leniency does not apply today because there is currently no mitzvah to settle the land. This is his famously controversial position, and does not explain why contemporary codes quote this ruling without any limitations. However, even he agrees that there is somewhat of a mitzvah in acquiring land in Israel for Jews rather than gentiles and enabling the performance of mitzvos dependent on the land, and therefore a double rabbinic prohibition (shevus di-shevus) would be allowed (which would presumably include asking a gentile to ask another gentile to do work -- amirah la-amirah).

Conclusion

Based on all of the above factors, I see multiple reasons why a rabbi would allow the hiring of a gentile contractor who uses gentile workers to build houses on Shabbos in Israel so as not to cede land into Arab hands. While I am unqualified to render a decision on this, and there may be public policy issues here of which I am unaware, a lenient ruling does not seem particularly outlandish to me. Quite the opposite, it is solidly based on the rulings of the Chasam Sofer, the Satmar Rav, R. Moshe Feinstein and others.