CEMETERY WORK ON ROSH HASHONAH

QUESTION:

Our cemetery needs to have a deep well dug. This is an expensive enterprise and the contract for it has been let. For technical reasons, the work in digging the well, once it is started, must be continuous. This will bring the work through Rosh Hashonah. Is this permitted? (Asked by Louis J. Freehof, San Francisco, California.)

ANSWER:

SINCE THE digging of the well will take many weeks, it will also include the likelihood of work on a number of Sabbaths. The New Year is a Yom Tov, and the laws of Sabbath work are even stricter than the laws of Yom Tov. For example, cooking for the family may be done on Yom Tov and may not be done on the Sabbath. Therefore the question should really read as follows: May this cemetery work be done on the Sabbath and holiday? It should be clear that if, for some reason, it is permitted on the Sabbath, it will all the more be permissible on the holiday.

The assumption is that the firm contracted to dig the well is not a Jewish firm but a Gentile one. If it were a Jewish firm, the owners would be absolutely prohibited by Jewish law from work on the Sabbath and the holiday. So we must assume it is a Gentile firm which has the contract, and the question, therefore, really is: May a Gentile firm work in behalf of a Jewish institution on the Sabbath and holidays?

Generally it is forbidden by Jewish law for a Jew to give orders to a Gentile to work for him on the Sabbath and holidays. Then how is it possible to employ a Gentile, as many synagogues and households do, to put out the lights on the Sabbath? The answer is that it is forbidden to tell the Gentile to put out the lights since he is your agent and he is working for you on your orders on the Sabbath. The presumption is that the Gentile in these cases knows of his own accord what to do, and he does it without a direct order from the Jew to have him do work for him on the Sabbath.

Therefore, it would seem that work by a Gentile firm would be forbidden on the Sabbath and holidays, but that is not actually so. It depends on the nature of the contract made with the Gentile firm. The Talmud has detailed descriptions of many types of contracts, a number of them pertaining to various types of sharecropping. Out of the Talmudic laws on contracts, the great twelfth-century authority, Rabbenu Tarn, Rashi’s grandson, derived the principle called kablonus. This means literally “acceptance,” but more fully it means a contract of a special type. If it were a contract to pay the Gentile or his workmen every day for the day’s work, then it would be forbidden for the Gentile or his workmen to work on the Sabbath because we would be paying specifically for Sabbath work in our behalf.

But kablonus is not a wage-contract but a total job-contract. The Gentile firm is engaged to do the whole job for a certain sum, and it is entirely the Gentile’s decision whether to work by day or by night or what days to work and what days not to work. In that case, by a kablonus contract the Gentile firm may work on the Sabbath or holidays because it is its own decision and the Jew does not get any specific benefit from the work on the Sabbath. He is paying for the whole job, and it is the Gentile who decides when to work and when not to work. This decision of Rabbenu Tam—that Gentiles working on a kahlonus contract (i.e., a job-contract) may work for a Jew on the Sabbath—is given by Rabbenu Tarn in two places, in the Tosfos to Zora 21b and also in Sabbath 17b.

Some scholars tend to disagree with Rabbenu Tarn, mostly on the following ground: If the Gentile is carrying out the building contract in the city, where Jewish people see the work done on Sabbath and holiday, they may not know that it is a kablonus contract and may think that the Jew has made a daily wage-contract and, therefore, is violating the Sabbath. Hence the law to satisy these objections is stated as follows (in the Tur and in the ShulchanAruch, Orach Chayim 244:1): that a Gentile on a kablonus contract may work on the Sabbath, but some believe that in a public place where (Jewish) people pass, he may not do so.

Now it happens that this work is being done in the cemetery, where people generally do not walk around, and where no funerals are held on Sabbath and New Year, and where people do not visit the cemetery on those days. Therefore there is no objection at all to this type of work.

To sum up: A kablonus contract with a Gentile leaves the contractor free to decide which days to work. Hence the Jew does not get any specific benefit for Sabbath or holiday work, and does not give any order for this kind of work. Also, on the days in question people do not visit the cemetery. Hence there is no objection in Jewish law to the Gentile contractor working on those days.