CCAR RESPONSA
American Reform Responsa
26. Work on a Synagogue on Sabbath by Non-Jews
(Vol. XXXVII, 1927, pp. 203-206)
QUESTION: Is it permissible to let a non-Jewish contractor, building a synagogue, work on the building on the Sabbath?
ANSWER: The Jewish religious law forbids the Jews to do any work on the Sabbath or to have his servant or agent do it for him. The Jew is, therefore, not allowed to hire laborers to do work for him on the Sabbath. He may, however, let out work to a non-Jew and need not concern himself whether the non-Jew does it on Sabbath or not, provided that the non-Jew has the time and could do the work on weekdays. Since the Jew does not profit by the work being done on the Sabbath, he is not responsible for the non-Jew’s choosing to do the work on the Sabbath. For the Jew is not commanded to try in any way to make the non-Jew observe the Jewish Sabbath. In any case, then, where the non-Jew is not a hired laborer (i.e., paid wages by the day or week or month), but receives payment for the finished job or contracts to do the whole work and receives payment for the delivered product (bekablanut or bekibolet) and not for the hours of labor put in, the Jew may let him do on the Sabbath the labor contracted for. The non-Jew in such cases– having contracted for the job and not for so many days of labor–is his own master and not the servant or agent of the Jew. He may do his work whenever he pleases, and the Jew need not concern himself whether the non-Jew observes the Sabbath or not, for it is not the duty of the Jew to make the non-Jew observe the Jewish Sabbath.
There is only one consideration that might keep the Jew from letting the non-Jew do any work for him on the Sabbath, even when the work is contracted for by kablanut. This is the consideration of mipenei haro-im, lest other Jews, seeing the non-Jew doing the Jewish work on the Sabbath, and not knowing that it was contracted for by kablanut, might suspect the Jew of letting his hired laborer or agent work for him on Sabbath. This might lead to a laxity in the observance of the Sabbath on the part of other Jews. To avoid suspicion (mishum chashda) the Jew should not let a non-Jew do work for him on Sabbath, even bekablanut, when conditions are such as to cause other people to think that the Jew for whom the work is done is violating the Sabbath. Accordingly, therefore, it depends on conditions. Where there is no danger that the people, seeing the work done, might think it is done by hired day-laborers and not bekablanut, the Jew need have no hesitation at all to let the non-Jew do the work for him. Of course, even when there is such danger, one might argue, why consider other people’s unjustified suspicions? But the Rabbis did consider the effect of any action of ours upon innocent and ignorant people.
However, R. Jacob Tam (1100-1171) somehow disregarded the consideration for other people’s unjustified suspicions and permitted the building of a Jewish home by a non-Jew on the Sabbath, in case the non-Jew has a contract for the work bekibolet and is not a day laborer (Tosafot, Avoda Zara 21b, s.v. “arisa”). But another Tosafist, R. Isaac, probably a younger contemporary of R. Tam, decided against R. Tam. His argument was that since it was customary in those days, when building a house, to hire the builders and laborers by the day, people would not know that in the specific case the work was done by the non-Jews on contract, and would suspect the Jew of hiring day-laborers to do work on the Sabbath: “Aval bevinyan bayit regilot liskor midei yom beyom, veharo-eh eino omer kablanutei avid, ela sechirei yom ninhu” (Tosafot, Avoda Zara, ibid., l.c.). This view of R. Isaac has been accepted in the Shulchan Aruch, Orach Chayim 244. It should be remembered, however, that even according to this view it is only forbidden mipenei haro-im or mishum chashda, i.e., lest the people seeing the work done on Sabbath might suspect the Jew of having hired day-laborers. Accordingly, in a country where the general custom is that the work on buildings is done by contract, bekablanut, and where the people would not suspect the Jew, it would be permissible to let the non-Jewish contractor build a Jewish home on the Sabbath. R. Ezekiel Landau, in his Noda BiYehuda Kemo Orach Chayim(no. 2, Prague, 1776, p. 5a), was inclined to favor such a permission, since, as he says, in his time it was customary in Prague to have all work on Jewish buildings done by contract.
I have so far discussed the law in regard to a private building. In cases of community buildings it is even more to be allowed, since the fear that the people, seeing the work done on Sabbath, might suspect a violation of the Sabbath law (chashda) does not enter into the question. According to Rabbinic law (cf. Talmud Bavli, R.H. 24b, near bottom of page; also Tur, Yoreh De-a 141, and Shulchan Aruch, Yoreh De-a 141.4 Isserles note), a community need not fear misunderstanding or suspicion. Since it is a community business and every one knows the true state of affairs and is acquainted with the prevailing conditions, no one will unduly suspect the community of doing wrong.
Rabbi Abraham Abele Gumbiner, a great Polish rabbinical authority (1635-1683), in his commentary Magen Avraham to Shulchan Aruch, Orach Chayim 244.8, therefore, says that a community should be allowed to have a synagogue built by non-Jews on the Sabbath, if the work is done by contract. He adds, however, that some authorities refused to permit it on the following grounds: Since the non-Jews do not let any person do any public work on their Holiday or Sunday, it would be a disgrace, a sort of Chilul Hashem if we would permit work on our buildings to be done on our Sabbath: “Ve-im ken haya nir-eh lehatir livnot beit hakeneset beshabat bekablanut; umikol makom ra-iti shehagedolim lo ratsu lehatiro, ki bazeman hazeh ein hagoyim manichin leshum adam laasot melechet parhesya beyom chagam, ve-im naniach anachnu la-asot, ika chilul hashem.” In other words, it would be a disgrace because it would look as if we do not care for our Sabbath as much as others care for theirs. This is a rather poor argument, and Rabbi Akiva Eiger in his notes on the Shulchan Aruch, ad loc., rightly remarks that he cannot see any disgrace in our not imitating other people by forcing our Sabbath upon others. He says: “Uve-ikar hadavar nir-eh, lefi aniyut da-ati, de-ein bazeh mishum chilul hashem bema de-ein manichin hagoyim leshum adam la-asot melacha.”
And we today who object strongly to other people’s seeking to force Sunday laws upon us, certainly cannot consider it disgraceful to refrain from forcing other people to observe our Sabbath. Since the law does not forbid us to give out work to a non-Jew bekablanut, we need not consider that some people might think that we do not care for our Sabbath as much as others do for theirs. R. Yehuda Ashkenazi (first half of the 18th century) in his commentary Ba-er Heitev to Shulchan Aruch, Orach Chayim, ad loc., declares that if there is any apprehension that by refusing to let the non-Jews work on our Sabbath the building of the synagogue might not be able to progress or be carried out, we should not insist on the work being done on weekdays only, and we should allow the non-Jewish contractor to proceed with his work on the Sabbath. The same opinion is held by Zevi Hirsch Zamosz (1740-1807) in his responsa Tif-eret Tsevi, quoted in Sha-arei Teshuva, ad loc., though Zamosz suggests the device of a fictitious sale of the building to a non-Jew (Shetar Mechira),which, of course, we cannot at all consider.
Solomon Yehuda Rappaport in his responsum published in Beit Talmud II (Wien, 1882, pp. 354-355) also hesitates to forbid a synagogue to be built on the Sabbath by non-Jews. After a rather lengthy discussion he finally arrives at at the following decision: If there is an absolute need for the new Temple, it is to be permitted. If, however, there is no absolute need for it, i.e., if the congregation has a house of worship, but merely wants to have a better, more convenient, and more beautiful Temple, then we should first make all efforts to arrange with the contractors–even at the risk of additional expense–that they do not work on it on the Sabbath. If this cannot be done, at least let no one representing the congregation be seen there on the Sabbath supervising the work or watching the laborers.
I think that this decision of Rappaport should be followed in your case. Since it is a matter of sentiment more than of law, you should make all efforts to arrange, if possible, not to have the work done on the Sabbath, even if it should involve extra outlay on the part of the congregation. I make this decision with great hesitancy because my sentiments are against giving the permission, but I must, in truth, state that the law does not offer any serious objection to it.
Jacob Z. Lauterbach
If needed, please consult Abbreviations used in CCAR Responsa.