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Avodah Zarah, 21

1) RENTING AND SELLING LAND TO NOCHRIM OUTSIDE OF ERETZ YISRAEL

OPINIONS: The Mishnah states that one is allowed to sell and rent houses to Nochrim in Chutz la'Aretz. The Mishnah qualifies the allowance to rent a house to a Nochri by saying that it is permitted only when the Nochri's purpose in renting the house is non-residential. If, however, the Nochri intends to reside in the house, then the Jew may not rent it to him, since the Nochri will certainly set up an idol in the house, causing the Jew to transgress the prohibition of "v'Lo Savi So'evah El Beisecha" -- "You shall not bring an abomination into your house" (Devarim 7:26).

The common practice today is that Jews lease residential domiciles to Nochrim, regardless of their idolatrous affiliation. How is this permitted in light of the statement of our Mishnah?

(a) TOSFOS (DH Af) explores the basis for the custom to permit selling and renting houses to Nochrim. He writes that some propose that it is permitted based on the Tosefta (2:3). After the Tosefta makes a statement similar to that of our Mishnah, it says that it is nevertheless permitted to rent stables, storehouses, and inns to Nochrim even if it is known that they will bring in their idols. Perhaps the reasoning behind the Tosefta's opinion is that a Nochri brings his idol into stables, storehouses, and inns only once in a while. In contrast, he brings his idol into a house all the time. The Tosefta is saying that the prohibition for a Jew to lease a place to a Nochri applies only when the Nochri will bring his idol into the house permanently. According to this, it is permitted to rent a house to a Nochri in modern times and places, because the Nochrim no longer keep idols permanently in their homes.

Tosfos does not accept this approach. Perhaps the Tosefta maintains that one should *never* have an Avodah Zarah brought into a house or building that he owns, even infrequently. The reason the Tosefta permits renting stables, storehouses, and inns to Nochrim is because these buildings are not categorized under the title of "houses," as they are not for residential purposes.

(b) Tosfos quotes RABEINU CHAIM KOHEN who says that the Yerushalmi is the source for the allowance to lease a home to a Nochri. The Yerushalmi states that when the Mishnah says that it is forbidden to rent a house to a Nochri for residential purposes, this applies only in a place where the Chachamim permitted *only* renting, and not selling, a house to a Nochri. Where the Chachamim permitted one to *sell* a house to a Nochri, one may sell *and rent* to a Nochri even for residential purposes. The reason why this is not included in the Isur of "v'Lo Savi So'evah El Beisecha" is because a house owned by a Jew in Chutz l'Aretz is not considered "Beisecha" -- it is not considered fully owned by a Jew.

It could that his intention is as the RA'AVAN (#291) writes. When the verse says, "Beisecha," it is referring to places like Eretz Yisrael and Surya where the Jew has exclusive and unconditional ownership of his property. In Chutz la'Aretz, even though the Jew owns the land or the house, he is obligated to pay taxes to the ruling government, and thus his ownership cannot be called "Beisecha." (See also the explanation of RABEINU TAM, cited by Tosfos 58b, DH Betzer, for why we do not give Terumos and Ma'aseros nowadays.)

Tosfos, in the name of the RI, asks a number of questions on this explanation. One of his questions is that it is not logical to say that the level of a Jew's ownership in Chutz la'Aretz is less than that of a Nochri's. Tosfos asks further that according to this reasoning, a house owned by a Jew in Chutz la'Aretz should be *exempt* from a Mezuzah, since the verse regarding the Mitzvah of Mezuzah also says "Beisecha" (Devarim 6:9)! This is clearly not the case, as the Gemara in Menachos (44a) states that even in Chutz l'Aretz one is obligated to affix a Mezuzah on the doorways of one's home.

(c) The RI agrees that the Yerushalmi that Rabeinu Chaim quotes is the source for renting houses to Nochrim in Chutz la'Aretz. He quotes RABEINU ELCHANAN who gives a different explanation for the statement of the Yerushalmi that renting to Nochrim for residential purposes is permitted in a place where it is permitted to sell to Nochrim. Rabeinu Elchanan explains that the verse of "v'Lo Savi So'evah El Beisecha" is referring only to bringing an idol into a place where a Jew *actually lives*, but not to bringing an idol into a house owned by a Jew, but which is not occupied by a Jew. This is similar to the law of Mezuzah which, mid'Oraisa, obligates one to affix a Mezuzah to a house in which one lives, but not to a house in which one does not live.

The Ri says that our Mishnah agrees with this. When the Mishnah says that it is prohibited to rent a house to a Nochri in Eretz Yisrael, this is because of a Gezeirah d'Rabanan (but not because of the Isur d'Oraisa of "v'Lo Savi"), for the Rabanan did not want idols being brought into homes in Eretz Yisrael. In Chutz la'Aretz, the Rabanan were lenient and did not enact this Gezeirah.

(See further interpretations of the Yerushalmi in TOSFOS RABEINU ELCHANAN.)

(d) The RAMBAN (DH Ha d'Tenan Lo) gives a different explanation for the verse of "v'Lo Savi." He explains that the verse forbids a Jew from bringing an idol into his house only when he does so in order to benefit from the Avodah Zarah. The Ramban refers to the Gemara in Makos (22a) which derives from this verse the law that one who benefits from an Asheirah tree (a tree designated as Avodah Zarah), he is punished with Malkus. This implies that the Torah's intention was that a Jew should not bring an Avodah Zarah into his home in order to have pleasure from it. Accordingly, even if a Jew brings an Avodah Zarah into his home, he transgresses the Torah prohibition only if he plans on receiving pleasure from it in some fashion. Bringing an Avodah Zarah into one's one for any other purpose is Asur only mid'Rabanan.

The Ramban also gives this explanation in his commentary on the verse (in Devarim 7:26). This is also the opinion of the RITVA and the RAN.

According to this opinion, the prohibition to rent a house to a Nochri for residential purposes applies only in Eretz Yisrael, where the Rabanan prohibited it due to our obligation to root out all Avodah Zarah from Eretz Yisrael, as the Ran explains. This stringency, therefore, does not apply to renting a house to a Nochri in Chutz l'Aretz.

(e) The RA'AVAN (#291) suggests that Nochrim today, in most civilized places, do not actually worship idols, and it is very likely that a Nochri will not bring an idol into his place of residence at all. A Jew may rent a home to a Nochri, relying on the likelihood that the Nochri will not bring an Avodah Zarah into the house. He adds that this allowance applies only in places where the conduct of the Nochrim fits this description (as opposed to certain counties in the Far East, for example, where Nochrim still commonly keep idols in their homes.) (Y. Montrose)

21b

OPINIONS: The Gemara states that a Jew is allowed to rent his field to a Nochri, since, when people see the Nochri working on the Jew's field on Shabbos, they will assume that the Nochri is working on Shabbos in order to increase his own share of the crop. This implies that as long as a Nochri is working for his own interests, he may work for a Jew on Shabbos.

It seems that as long as the Jew does not tell the Nochri to work on Shabbos, and no onlookers suspect that the Jew told the Nochri to work on Shabbos, it is permitted for a Jew to have a Nochri work for him on Shabbos. Does this apply to other forms of work (besides agricultural work), such as constructing a house?

(a) TOSFOS (DH Arisa) quotes RABEINU TAM who says that a Nochri is permitted to build a house for a Jew on Shabbos when the Nochri was hired through a contract of "Kablanus," wherein the Nochri agrees to do a specific job for a set price (in contrast to being paid by the day or by the hour). In the case of our Gemara, the Nochri is allowed to work on the Jew's land on Shabbos because he is working for his own benefit, even though the Jew simultaneously benefits by having his land improved. When a Nochri, hired through an agreement of Kablanus to build a house for a Jew, works on Shabbos, people who see the Nochri working will say that he is working on Shabbos not because the Jew hired him to work then, but because the Nochri himself chose this as the most favorable time to work.

Rabeinu Tam proves this logic further from the Gemara in Shabbos (17b), in which Beis Hillel states that one may give garments to a Nochri launderer to be cleaned before Shabbos, even though the Nochri might choose to clean them on Shabbos.

However, the Gemara in Moed Katan (12a) seems to contradict Rabeinu Tam's explanation. The Gemara quotes Shmuel who says explicitly that a Jew may not hire a Nochri to work for him through Kablanus if the Nochri will do the work within the Techum Shabbos.

Rabeinu Tam explains that the Gemara in Moed Katan is not discussing Shabbos at all. Rather, it is referring to an Avel (mourner) who is not permitted to commission Nochrim to do work for him inside the Techum. This is according to the opinion there (11b) that maintains that some of the laws of an Avel regarding work are more stringent than the laws of Chol ha'Moed. However, such restrictions apply only to an Avel (for, otherwise, the prohibition against an Avel working would not be taken seriously). Such restrictions do not apply to Shabbos, because people are much more serious and careful about the laws of Shabbos. Hence, the Chachamim did not prohibit hiring Nochrim through Kablanus who will for the Jew on Shabbos even within the Techum.

(b) RASHI (in Moed Katan 12a), RI (cited by Tosfos here), and almost all of the other Rishonim maintain that a Jew may *not* hire a Nochri to work for him on Shabbos, building a house, even through Kablanus. They explain that working a field is different, because sharecropping is a very prevalent method of business, and thus no one suspects that the Nochri is working solely for the benefit of the Jew. Construction, on the other hand, often involves workers hired for the day (and not through Kablanus). People will easily assume that the Jew hired the workers for the day to work for him on Shabbos.

These Rishonim explain that the Gemara in Moed Katan indeed is referring to Shabbos. In addition, they refute Rabeinu Tam's proof from the Gemara in Shabbos by saying that when a Nochri launderer cleans the garments of a Jew on Shabbos, this is not an act that looks like Chilul Shabbos; there is no reason for anyone to suspect that the Jew commissioned the Nochri to work for him on Shabbos (see Rashi there). In contrast, a large and extensive project such as the building of a house certainly arouses onlookers' suspicion that the Jew hired the Nochri to work for him on Shabbos.

(c) The Ri takes this even further and states that it is forbidden for a Jew to build his house with bricks that were cut on Shabbos by a Nochri, even though the Nochri cut those bricks in the privacy of his own home. He explains that the Halachah follows the view of Rebbi Shimon ben Elazar, cited in the Yerushalmi, who says that when a Nochri works on something that will be attached to the ground, this is tantamount to working on the house outside. Only if the work is done by the Nochri outside of the Techum of the city is it permitted.

The Rishonim dispute what the Ri's intention is in his stringent ruling. The TUR (OC 244), SEMAG (Lavin 65), HAGAHOS MAIMONIYOS (Hilchos Shabbos 6:40) and others write that it is forbidden for the Jew to use bricks that were made by a Nochri on Shabbos inside the Techum. However, RABEINU YERUCHAM (Nesiv 12:82) quotes the Ri's ruling as a stringency, but not as an Isur. He writes that "there were some Gedolim who were stringent upon themselves...." While the BEIS YOSEF (OC 244) does not agree with any of the possible proofs to Rabeinu Yerucham's approach, in the SHULCHAN ARUCH he does not say that it is Asur to use the bricks (as the Tur writes), but rather he says merely that one "should not use them." The BI'UR HALACHAH infers from this change in language that the Shulchan Aruch concludes that this is a stringency, but not an Isur.

(d) The KOL BO, as cited by the REMA, rules that if the bricks that the Nochri manufactured on Shabbos were not known to have been made for the Jew, then the Jew is permitted to use them for the building. The ELIYAH RABAH, MISHNAH BERURAH and others explain that if the ownership of the building under construction is not known (that is, people do not know that it is owned by a Jew), then, according to the Kol Bo, it is permitted for a Nochri to build it for the Jew on Shabbos.

HALACHAH: We do not rely on Rabeinu Tam's view l'Halachah. The Beis Yosef quotes many Rishonim (including Tosfos here) who assert that Rabeinu Tam himself did not rely on this leniency when he built his own house. However, the DARCHEI MOSHE points out that this does not necessarily mean that he retracted his opinion; perhaps he merely wanted to stringent in his own conduct. In practice, all of the Poskim agree that one should *not* have a Nochri do construction work for him on Shabbos, even when hired through Kablanus. If it was already done, the Shulchan Aruch says that it is correct to be stringent and not enter the house. However, the Mishnah Berurah (OC 244:20) quotes many Acharonim who say that if it is already done, then one may rely on the opinion of Rabeinu Tam and may dwell in the house. (Y. Montrose)