SNOW REMOVAL CONTRACT: A FOLLOW-UP

A recent column (Parashas Yisro, 5759) dealt with the complicated issue of amirah la'kum in regard to snow removal contracts. The question was: Is it permitted to sign a snow removal contract, since one's driveway will be plowed on Shabbos if snow accumulates as per the terms of the contract? After examining the issue from all angles, we concluded that it is no simple matter to permit such an arrangement. A suggested loophole for allowing this type of contract was for the Jew to instruct the non-Jew to "clear the driveway" without stating explicitly that it be plowed. This was based on a ruling of the Taz who permits instructing a non-Jew to wash dishes even though the non-Jew will light a candle in order to see. We concluded, however, that there is a basic difference between the two cases. In the Taz's case, washing dishes is clearly permissible on Shabbos. Indeed, when the maid is actually washing the dishes she is performing no forbidden Shabbos Labor. It is only when preparing to wash the dishes by lighting the candle that a prohibited Labor is performed. But in the case of snow removal, the actual removal of the snow is accomplished by means of a forbidden Labor, driving a snow plow. The Jew is benefiting directly from the prohibited Labor performed by the non-Jew, and it is as if the Jew is instructing the non-Jew to use the plow for the snow removal.

However, there are poskim who maintain that even in this case, where the instructions will result in a prohibited labor being performed by a non-Jew, it is still not considered amirah la'kum because it was not specified that the driveway be plowed. The non-Jew could, theoretically, "clear the driveway" with a shovel and not transgress any Shabbos Labor. Plowing the driveway is his choice and to his benefit (for plowing is easier and quicker than shoveling). Instructions which, at the non-Jew's discretion, may or may not entail performing Shabbos Labors, are not considered amirah la'kum.

There are three cases discussed by the poskim which form the basis for this approach:

It is permitted to instruct a non-Jew to "clean the floor," even though he will use a mop and do so in a prohibited manner (transgressing the Labor of Squeezing). This is because it is possible for him to "clean the floor" in a permissible manner - by pouring water on the floor and then pushing it aside(1). He is performing forbidden Shabbos Labors only in order to make it easier for himself. This is not amirah la'kum(2).

Using makeup remover on Shabbos may be prohibited because of the prohibition of Smoothing, memareiach. It is permitted, though, to instruct a non-Jew to "cleanse my face" even though the non-Jew will use makeup remover to do so. This is permitted because the face can be cleansed by scrubbing it with water, which is permitted. The decision to use makeup remover rather than water is made by the non-Jew, for his benefit, and it is not based on the instructions of the Jew(3).

It is permissible to instruct a non-Jew to wash dishes even though he will use a dishwasher for that purpose. This is because the dishes can be washed on Shabbos in a halachically permissible fashion, and using the dishwasher benefits the non-Jew by making his job quicker and easier(4).

In all of the cases cited above, the Jew's orders, which could be filled in a permissible manner, will actually be filled in a prohibited manner. Still, it is apparent that the poskim were lenient and did not view this as amirah la'kum. Accordingly, if a Jew instructs a non-Jew to "clear the driveway," something which could be done in a permissible manner with a shovel, then the non-Jew may use his truck to accomplish the task more efficiently. The fact that the job is actually being done in a forbidden manner seems to make no difference.

What still needs to be clarified is the issue of maris ayin. It is prohibited to allow a non-Jew to do work on the premises of a Jew even if no specific amirah took place, because it appears as if the Jew instructed him to do the job on Shabbos and thus violated the prohibition of amirah la'kum. Whenever it is prohibited to give orders, it is also prohibited to allow the work to be done, since it appears as if an order was given. The poskim clearly forbid such activities as allowing a non-Jew to build on Jewish property on Shabbos(5), to do laundry on his premises(6), or to remove debris from his yard7. According to many poskim, these activities are prohibited whether or not they are generally performed by day laborers or by contractors(8), since it may appear as if the non-Jew was specifically instructed to do the work on Shabbos(9).

But it is questionable whether maris ayin would apply in our case. Once we have established that the order to "clear the driveway" does not constitute amirah la'kum, we are not concerned that it may appear as if a prohibited order was given. This is apparent from the Taz himself, who was not concerned with maris ayin when he permitted instructing the maid to wash the dishes. The other poskim mentioned above followed the same logic in their respective cases and were not concerned with the fact that it appears as if prohibited instructions were given. It seems from their rulings that maris ayin is not a problem.

The explanation for this view could be as follows: Maris ayin is only prohibited if there is a clear-cut command to do a prohibited Labor. In that case, even if the non-Jew is specifically instructed not to perform the Labor on Shabbos, we still do not allow him to perform a Labor on our premises since it appears as if he was instructed to perform it on Shabbos, a violation of amirah la'kum. If, however, there was no explicit command to perform a prohibited Labor, we are not concerned that others will think that instructions to perform a prohibited Labor were given. Maris ayin, then, will not be a concern(10).

Since, as mentioned before, there is a permissible way of instructing the non-Jew to clear the driveway, we need not be concerned with the appearance of amirah la'kum, since it is likely that the non-Jew was told "clear my driveway" or "do my driveway", a permissible wording. It is not similar to building, doing laundry or removing debris(11), since all of those tasks can be accomplished only in a prohibited manner. Anyone who sees a non-Jew performing those Labors on Shabbos for a Jew may assume that the non-Jew was instructed to perform them on Shabbos.

Conclusion: After all is said and done, we must still conclude that it is no simple matter to sign a snow removal contract that allows for one's driveway being plowed on Sahbbos. Although it seems from the poskim that the Taz's leniency applies in our case as well, there are still some unresolved issues which cannot be decided here(12). A question as complex as this should be presented to an halachic authority for a decision.

FOOTNOTES

1. Although there is no permissible method for a Jew to wash a floor on Shabbos, see O.C. 337:4, there are permissible ways for a non-Jew to do so; see Rama 337:2 and Mishnah Berurah 10.

2. Birkei Yosef O.C. 333:2, quoted in Kaf ha-Chayim 337:21. Harav M. Feinstein is also quoted (The Sanctity of Shabbos, pg. 93) as allowing this.

3. Igros Moshe O.C. 2:79.

4. Shemiras Shabbos K'hilchasah 30:23. See Kol ha-Torah # 42, pg. 255 where Harav Y.Y. Neuwirth amends that if the noise of the dishwasher is heard by others it may be prohibited because of zilzul Shabbos. Harav M. Feinstein is also quoted (The Sanctity of Shabbos, pg. 89) as prohibiting usage of a dish washer because of zilzul Shabbos.

5. O.C. 244:1

6. O.C. 252:2.

7. Mishnah Berurah 244:13.

8. A contractor is a worker whose responsibilities to his employer are job- related, not time-related. He is paid is for the job, which he can do whenever he pleases. It is permitted to contract with a non-Jew to do a specific job even if the Jew is aware that the job will be done on Shabbos, so long as two conditions are met: 1) The non-Jew is given enough time to do the job so that he does not have to work on Shabbos; 2) The job is not done on the Jew's premises on Shabbos, thus avoiding the problem of maris ayin.

9. Mishnah Berurah 252:17 quoting Chayei Adam. There are poskim (see Maharam Shick O.C. 95, 97 and Teshuvos M'harshag 1:41) who maintain that the prohibition of maris ayin applies only to jobs which are sometimes done on a contractual basis and sometimes not (like snow removal, which may also be a one-time deal). But jobs which are generally done on a contractual basis only are permitted to be done even on a Jew's property on Shabbos. We are not concerned that it appears as if the non-Jew was instructed to do the job on Shabbos, since it is well known that these types of jobs are commissioned on long-term contracts where there is no specific order to work on Shabbos.

10. A somewhat similar idea is found in Igros Moshe E.H. 2:12 who wonders why there is no prohibition of maris ayin to shave, since it may appear as if a razor was used. He answers that maris ayin applies only when there is a reasonable chance that an aveira was done. Since, however, everyone knows that there are permissible ways to shave, one need not worry that he will be suspected of shaving in a forbidden way, since a permissible way is easily available. For the same reason a woman may wear a wig [which looks like her hair] and not worry that others will suspect that her hair is showing.

11. See Nishmas Adam 44:1 who explains that removing certain kinds of debris is a Biblical prohibition.

12. One unresolved issue is whether it is actually permitted to clear the driveway with a shovel on Shabbos; see O.C. 333:1. If it is not, then the Taz's leniency will not apply in our case. [Bear in mind that when no eiruv exists, it is surely prohibited to clear the driveway, even with a shovel.]

Weekly-Halacha, Copyright © 5759 by Rabbi Neustadt, Dr. Jeffrey Gross and Project Genesis, Inc.

Rabbi Neustadt is the principal of Yavne Teachers' College in Cleveland, Ohio. He is also the Magid Shiur of a daily Mishna Berurah class at Congregation Shomre Shabbos.

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