Business on Shabbos

 

When can a Jewish-owned business be operated on Shabbos by a non-Jew? Does it matter whether the non-Jew rents the business for a fixed rent, receives a share of the profits, or is employed by the Jewish owner? Are the halachos the same for every type of business, or is there a difference between a retail store, a swimming pool, a field, or a petting zoo?

How do these principles apply to modern business arrangements? May a Jew grant a franchise to a non-Jew if the branch will certainly be open on Shabbos? May he sublease a business to a non-Jew? Does it matter whether the business is known to belong to a Jew, where it is located, or even whose name appears on the sign and logo? What if the business is leased to a Jew who is, chas v’cholila, not Shabbos-observant?

These and many other questions will be discussed in this week's article.

The Mitzva of Shabbos

The end of this week's parashah discusses the Korban Musaf – the additional sacrifice brought on Shabbos and Yom Tov. This brings us to a practical question that many business owners face – how to keep a business running in a field that is expected to provide service 24/7. Closing such a business on Shabbos or Yom Tov may result in substantial financial loss, or total loss of the business.

The issue becomes even more pressing when a successful business wishes to expand through franchising. A prospective non-Jewish franchisee may be willing to sign only on condition that he is free to be open whenever he wants, including Shabbos and Yom Tov. Is there a halachically acceptable way to structure such an arrangement, or must the Jewish owner forgo the opportunity for the sake of Shabbos?

We can divide the types of business we are discussing into three categories:

1. A business that is Jewish-owned, but operated by a non-Jew.
2. A business jointly owned by a Jew and a non-Jew, where the non-Jew wants to operate on Shabbos.
3. A non-Jew performing work on behalf of a Jew.

This week we will focus exclusively on the first scenario: a business that is fully owned by a Jew who wants/needs to provide service seven days a week. Under what circumstances may he entrust the business to a non-Jewish operator who will run it all week, including Shabbos? When can a non-Jew be hired to operate the business only on Shabbos, and when is such an arrangement prohibited?

Before addressing the halachic details, one point must be clear: The ideal is for all Jewish business to be closed on Shabbos. Shabbos is the source of all blessing, and one who honors it properly will surely see his parnossah blessed. As the Mishnah Brura writes in a similar context (OC 246:5): "Fortunate is the one who trusts in Hashem and fulfills the Torah's will in its simple sense, without resorting to various devices regarding Shabbos. Certainly, Hashem will grant him success in his livelihood during the six weekdays."

Nevertheless, because today's global economy relies heavily on franchises, subcontractors, and external operators, it is important to understand the halachic principles that govern these arrangements. As always, the halachos in this area are nuanced and detailed. Every practical case should therefore be presented to a competent rabbi before proceeding.

We will begin by defining the various arrangements discussed by the poskim, as well as the different types of businesses to which they apply. Afterwards, we will then turn to the practical halachah.

Contracts and Deals

The poskim discuss four primary types of business arrangements: sechirus, arisus, kablanus, and sachir.

1. Rental (Sechirus): The non-Jew rents the business from the Jew for a fixed rental payment. During the rental period, all profits belong to the non-Jew.
2. Sharecropping (Arisus): The Jewish owner and the non-Jew divide the profits according to an agreed-upon percentage.
3. Independent Contracting (Kablanus): All profits go to the Jewish owner, while the non-Jew receives a fixed, prearranged salary for getting the job done, regardless of the profits.
4. Employment (Sachir): All profits belong to the Jewish owner, while the non-Jew is paid wages as an employee. Here the poskim distinguish between an employee paid by the hour, the day, the week, or the year.

In the case of an employee, another important detail is when his workday ends. There is a significant difference between an employee whose workday ends before Shabbos ends, whose wages are exclusively for work performed on Shabbos, and one whose workday extends after Shabbos is over, in which case he receives one lump payment that includes both work on Shabbos and after Shabbos. This distinction has important halachic ramifications.

Types of Businesses

There is another important distinction between the different types of businesses. Not every business generates profit the same way, and that difference often has significant halachic ramifications.

1. General Profit

A field is a classic example of a business that generates general profit through various activities: plowing, planting, irrigating, fertilizing, weeding, and harvesting. The crop is the result of all of those combined efforts, not of one specific day’s work.

In this type of business, it generally makes no difference to the owner when the work is done. The worker may choose to work longer hours on Friday before Shabbos, refrain from working on Shabbos, and work on Motzaei Shabbos. Alternatively, he may choose to take Thursday and Friday off and work on Shabbos instead.

Likewise, the profits are not attributed to any job performed on any particular day. The year's harvest is the cumulative result of all the work invested in the field over the course of the season.

2. Immediate Profit

The second category is a business that generates profit per action. The classic examples are a retail store or a swimming pool. Every customer who buys or pays admission to the pool generates an immediate profit. The income earned on Shabbos is clearly the result of the business being open and operating on Shabbos.

With this kind of business, if the operator decides to stay closed on a weekday, the owner will ordinarily object, because it is understood that a business needs to be open every day according to the accepted norm.

3. General Profits for Continuous Operation

A third category of businesses combines elements of both of the previous categories. Here too, profits are general, not from a specific daily activity. However, unlike a field, work must take place every single day.

A common example is a manufacturing plant where the production of a single product takes a week or longer, or a cyber security service provider. Although the profit comes in only when the product is completed, or for the ongoing service, but the manufacturing process cannot be interrupted for an entire day, and the service cannot be put on hold. If production stops, the entire batch may be ruined.

Another contemporary example is a law firm that handles only major litigation. The firm's income is not generated by walk-in clients. Rather, each case extends over many months, and the firm's compensation is earned only upon the successful completion of the case. Nevertheless, attorneys may need to respond immediately to court filings, client communications, or other developments, even on Shabbos. Without those timely responses, the firm may ultimately lose the case and forfeit its fee.

Prohibitions

Chazal and the poskim (Shulchan Aruch, OC 243; Mishnah Brura) mention two separate prohibitions on this issue. The first is a basic, full prohibition – asur m’dina. The second is a prohibition of mar'is ayin, in which there is no inherent prohibition, but Chazal prohibited the arrangement because it appears like a Jew is employing a non-Jew in a forbidden manner. Such situations make a chilul Hashem and diminish K’vod Shabbos. In addition, they may cause others to think, mistakenly, that other, genuinely prohibited arrangements, are also permissible.

The Full Prohibition

Operating a business on Shabbos transgresses two separate prohibitions.

The first concerns the work itself. Chazal learn from the pasuk, "Lo yei'aseh" ("it shall not be done"), that a Jew may not allow a non-Jew to perform forbidden work on his behalf on Shabbos. Although most poskim hold this prohibition is d’rabonon, Chazal find an allusion to it in the pasuk.

The second prohibition relates to the benefit derived from it. In certain situations, Chazal prohibited a Jew from enjoying or deriving benefit from work performed on his behalf on Shabbos, even when the action itself was not prohibited.

In other words, these are two independent issues. One is the work, and the other is the profits or benefits that result from that work.

Mar'is Ayin

Even where there is no intrinsic prohibition against a non-Jew operating a business on Shabbos, another concern often remains, and that is mar’is ayin.

Chazal prohibited many actions that are technically permitted due to mar'is ayin – because is causes the onlooker to be misled into thinking the action is prohibited. For example, although fish blood is technically permitted, one may not drink fish-blood without scales, due to the prohibition of maris ayin -- so the observer doesn’t think he is drinking forbidden animal blood. The rule here is that we are forbidden to appear to be violating an issur, even if we are technically not.

In this case, people who see such a business running on Shabbos, even if in a permitted way, may assume that similar arrangements are also permitted. Since the halachic distinctions are often subtle, this can easily lead others to permit actions and situations that are, in fact, prohibited.

For the prohibition of mar'is ayin to apply, the business must be known to the locals, or be clearly marked as belonging to a Jew — for example, "Cohen's Bakery," "Levin’s Fish Market".

Beyond maris ayin, a Jewish business that is open on Shabbos diminishes K’vod Shabbos in the public space.

Instructing a Non-Jew to Work on Shabbos

Telling or signing a contract with a non-Jew requiring him to work on Shabbos is fully prohibited. In this discussion we will therefore focus on a non-Jew who decides on his own to work on Shabbos, or thinks that opening on Shabbos is expected of him (Chazon Ish, Shevi'is 4:20; Mishnah Brura 245:11).

According to all poskim, a non-Jew who works as the Jewish owner's employee may not work on Shabbos for his employer. Even if he chooses to work of his own initiative, without any instruction or even hint from his employer, the Jewish owner is obligated to object and prevent him from doing so.

An employee who is hired for a fixed period to complete a specific project, for example to write a book or weave cloth, and is paid an annual salary for his work, the poskim disagree how to define such an arrangement, and the matter should be referred to a competent halachic authority.

An Independent Contractor

An independent contractor, however, is treated differently. As we shall see, there are situations in which employing a contractor is prohibited only due to mar'is ayin, while in other cases it is prohibited mi’ikar hadin.

An employee is paid for his time and labor, even though he is required to perform only the work specified in the employment agreement. However, a contractor is hired for a project and receives compensation for the final result, not for the labor.

An independent contractor is different and the halacha depends on the nature of the business.

The classic examples here is a field or building a house. The contractor is hired to till the soil or get the house built, and is paid for all his work, while the crop or house belong to the Jewish owner. The contractor is free to decide when to plow, plant, and harvest; build and pour cement, provided the work is completed properly. In such a case, there is no intrinsic prohibition against the non-Jew working on Shabbos. The only remaining issue is mar'is ayin, as will be discussed below.

A swimming pool, however, is fundamentally different. The Mishnah Brura (243:10) gives two reasons why operating a Jewish-owned swimming pool under a non-Jewish contractor is forbidden on Shabbos, even where there is no concern of mar'is ayin.

The first is that the profits are directly attributable to Shabbos itself. Every admission sold on Shabbos generates immediate income that could not have been earned by opening the pool on another day. Since the revenue is directly tied to Shabbos operation, the arrangement is prohibited.

The second reason applies even where no admission fees are collected on Shabbos — for example, if admission on that day is only for those who have a membership. Although there is no identifiable revenue from Shabbos, the owner expects the pool to operate every day. If the operator simply decides to close one day a week, the owner would obviously object. A person who takes a contract for this kind of business is considered as though the owner implicitly requires the non-Jew to work on Shabbos, rendering the arrangement prohibited.

Solution

The Noda BiYehudah (OC 29) discusses a business that, under government regulations, was required to remain open seven days a week. After outlining the circumstances under which such an arrangement could be permitted, he raises an additional concern. Although the non-Jew was hired as an independent contractor, he understood that he was expected to work every day of the week, including Shabbos. Since his compensation did not increase by working on Shabbos, his Shabbos labor was not performed for the contracted result. Practically speaking, he was more of an employee rather than an independent contractor.

The Noda BiYehudah therefore proposes a solution to turn him into a full-fledged contractor. In addition to his fixed compensation, the non-Jew should receive a bonus based on the business's revenue. In that case, every sale he makes on Shabbos directly benefits him. His motivation for working is no longer solely to fill his obligation to the owner, but also to earn an additional compensation. Since he is working as an independent contractor rather than as an employee, the arrangement may be permitted.

The Noda BiYehudah maintains that even a very small percentage is sufficient. Since every sale earns the contractor additional compensation, however modest, each action is considered to be performed for his own benefit.

The Chasam Sofer (OC 59), however, disagrees. In his view, the bonus must be substantial enough that a person would genuinely be willing to work for it, similar to the traditional sharecropper’s arrangement in which the worker receives one-quarter or one-third of the profits.

Their understanding is as follows: The Noda BiYehudah understands that once the contractor accepted the job, every individual action is motivated by the additional bonus he earns from it, however small. The Chasam Sofer, on the other hand, maintains that the contractor's overall decision to do the work must itself be motivated by his personal share in the profits.

When Mar'is Ayin Applies

Chazal prohibited mar'is ayin only when three conditions are met:

1. The business is known to be Jewish-owned.
2. In that locale, most businesses of this nature are not usually leased to independent operators or run under profit-sharing arrangements.
3. The business is located in a city that has a Jewish community.

If any one of these conditions is absent, the prohibition of mar'is ayin does not apply.

Jewish-Owned

A business may become publicly identified as Jewish-owned in several ways:

• It was established and run by a Jew for some time.
• A Jew purchased the business and personally operated it before leasing it to a non-Jew.
• The business’s name identifies it with a Jewish owner—for example, because it bears a distinctly Jewish name (“Se’or Pizza”), or because it carries the owner's name (“Farkas and Sons”) and everyone knows that "Farkas" is Jewish.
• The Jewish owner periodically visits the premises to supervise the business, making it obvious that it belongs to him.

Not Normally Leased

A second requirement is that this be the kind of business that is NOT commonly entrusted to an independent operator, whether under a profit-sharing arrangement, or by leasing the business for a fixed payment. Where it is customary for businesses of that type to be operated by hired employees rather than independent operators, observers are likely to assume that the non-Jew is simply working as the Jewish owner's employee. This involves concerns of mar'is ayin.

Techum Shabbos

The concern of mar'is ayin exists only if the business is located within the techum Shabbos of a Jewish community — i.e., within approximately 2,000 amos (about 1.2 km) of the last inhabited house of the city in which Jews live. If, according to halacha, Jews cannot reach the business on Shabbos, the prohibition of mar'is ayin does not apply.

Accordingly, where a business is known to belong to a Jew, and it is customary for businesses of this type to be operated by hired employees rather than leased to independent operators, it is prohibited to lease the business to a non-Jew, both for a fixed rental fee or for a percentage of the profits, unless the arrangement is publicized in a way that removes any suspicion of prohibited activities.

Even where it is common to lease such businesses, another question remains. Suppose the business is leased to a non-Jew under a kablanus arrangement, and the profits are generated not by the day's work but by the overall operation of the business over an extended period.

The Mishnah Brura (Biur Halachah 244:1) cites two opinions on this issue. Most Rishonim maintain that the prohibition of leasing with a contract (kablanus) in such cases is solely because of mar'is ayin. Consequently, where there is no suspicion — for example, because the arrangement is publicly known — the prohibition no longer applies.

The Ran, however, offers a different explanation. In his view, Chazal prohibited kablanus not because observers would necessarily suspect an improper arrangement, but because the distinction between an independent contractor and a day laborer is too subtle for the average layperson to understand. If people see a Jewish-owned business operating on Shabbos under a kablanus arrangement, they may mistakenly conclude that it is equally permissible to hire a non-Jew as a day laborer to work on Shabbos, which is unquestionably prohibited. To prevent such confusion, Chazal prohibited kablanus as well.

The Mishnah Brura notes that the Ran is not alone in this approach and cites additional authorities who agree with him. Practically, he concludes is that one should preferably avoid such arrangements from the outset. Nevertheless, those who rely on the more lenient opinion should not be criticized.

Subleasing

Another practical question arises when a Jew rents a business from its owner and later wants to sublease it to a non-Jew, or when he purchases a business and immediately leases it to a non-Jew without ever operating it himself.

The Beis Yosef maintains that the prohibition of mar'is ayin still applies, even though the Jew himself never operated the business. However, the Mishnah Brurah (243:14; Biur Halachah) rules leniently. Since the Jewish owner was never publicly associated with the business, people will not assume that the non-Jew is acting as his employee.

Leasing A Business Permit

An interesting question arose in 1975, in Communist Budapest.

A Shabbos-observant Jew had been making a living for many years by operating a small government-owned fruit and vegetable store. The business provided him with a respectable income, but it demanded strenuous physical labor — rising before dawn, traveling to nearby villages to purchase produce, carrying heavy crates, arranging the merchandise, and serving customers throughout the day.

By the age of seventy-four, the owner was no longer physically capable of continuing. He wanted to lease the permit to a non-Jew and live on the rental income for his retirement.

However, there was one obstacle. No non-Jew was willing to take over the business unless he was free to keep it open on Shabbos. At the same time, government regulations made it impossible to transfer the official permit to another person. If the Jew surrendered the franchise, the government would simply award it to someone else, and the new operator would have no reason to pay him rent.

The Rav of Budapest referred the question to Rav Yitzchak Yaakov Weiss, the Rav of Yerushalayim, who ruled (Minchas Yitzchok VII:11) that the arrangement could be permitted, provided two conditions were met: First, the sign above the store had to be changed so it displayed only the non-Jew's name. Second, the Jew should close the store for approximately one month before the non-Jew took over. During that time, he should begin attending the community's daily Shacharis minyan — a practice he had previously been unable to maintain because of the demands of the business. In this way, it would become publicly known that he had retired and was no longer involved with the store. Only afterward should the non-Jew begin operating the store. Under those circumstances, Rav Weiss ruled that there was no concern of mar'is ayin.

However, he added another caveat: the local rav must first determine if this arrangement might encourage others to open Jewish-owned businesses on Shabbos through non-Jewish operators, or not. Only if the local rabbi was certain that these measures would prevent both concerns of maris ayin and the possibility of causing a public misunderstanding, the arrangement may be permitted even though the government records continue to list the franchise in the Jew's name.

Leasing to a Non-Shabbos-Observant Jew

A more serious issue arises when the business is leased to a fellow Jew who, regrettably, is not yet Shabbos-observant.

In such a case, obviously, none of the leniencies discussed above apply. Leasing a business to another Jew who will keep it open on Shabbos is prohibited under the prohibiton of ifnei iver lo sitein michshol — placing a stumbling block before another Jew by enabling him to violate Shabbos (Mishnah Brurah 243:2).

Animals At Work

A business that involves animals — such as a farm, petting zoo, horseback riding club, or animal show involves other concerns as well.

If the animals themselves are not doing forbidden work on Shabbos, the halachah is essentially the same as discussed above. If the animals are required to do forbidden work on Shabbos, the issue is considerably more severe, since the Torah prohibits a Jew's animals from performing melachah on Shabbos. The halachos governing such businesses require a separate article.

Summary

Employing, leasing or otherwise giving a non-Jew a job at which he will work on Shabbos depends on a number of conditions: the nature of the business, the payment plan, local commercial practice, public perception, and the physical location of the business. Because these issues depend on facts, every practical case should be presented to a competent halachic rabbi before entrusting a business to a non-Jew to keep open on Shabbos.

In general, when a non-Jew either leases the business for a fixed rental payment or receives an agreed share of the profits, the arrangement may be permitted, provided the business is not publicly identified as Jewish-owned, or it is customary in that locale for such businesses to be leased to independent operators, or -- the business is located outside the techum-Shabbos of any Jewish community.

If, however, the business is known to belong to a Jew, businesses of that type are commonly operated by employees, and Jews live nearby, the arrangement is generally prohibited due to mar'is ayin.

Hiring a non-Jew as a day laborer to operate a business on Shabbos is prohibited in all circumstances.

Entrusting the business to a non-Jew under a kablanus arrangement should preferably be avoided. In cases of substantial need one should consult a competent halachic authority.

This week's discussion has focused to businesses that are wholly owned by a Jew. Next week we will discuss partnerships with a non-Jew, and other similar setups.