Halachic Musings

By Rabbi Yair Hoffman

Home construction is up, both locally and across the nation. Locally, many contractors are building homes to spec for Orthodox Jewish families, with dual ovens, dual sinks, Pesach kitchens, and even built-in sukkah breakfast nooks. But what happens if one of these contractors builds the house on Shabbos?

The Shulchan Aruch (O.C. 244:3) writes that if a house was built on Shabbos, it is proper to never enter it for as long as it stands. This is true whether the house was built by Jews or by gentiles upon the instruction of Jews.

The Mishnah Berurah (244:21) adds that this applies not just for the Jewish family that the home was built for, but for any Jewish person.

In halachic terminology, the byproduct of work performed on Shabbos is called “maaseh Shabbos.” There are two types of maaseh Shabbos–those byproducts of Shabbos violation that were created by Jews and those that were created by gentiles.

Background And Reasons

The Talmud (Kesubos 34a) records a debate regarding maaseh Shabbos created by a Jew. Rav Acha and Ravina argue as to whether maaseh Shabbos is forbidden by Torah law or by rabbinic law. The final halachah is that it is forbidden only by rabbinic law.

What is the reason for the prohibition? One reason is that it is a means to prevent future or further Shabbos violation. Another reason is that the prohibition will serve to further our appreciation of the gift that is Shabbos.

To better understand this, an analogy may be in order. The U.S.A., the state of Israel, and indeed every nation in the world has a flag that its citizens respect and venerate. The nation of Israel, the oldest among all groups and nations, also has such a flag. That flag is Shabbos, described in the Torah as an “os,” a sign. The prohibition of maaseh Shabbos serves to imbue the Jewish nation with veneration and respect for the os that is Shabbos.

The Gemara (ibid.; Chulin 15a, and Bava Kamma 71a) records a debate between the Tannaim as to the parameters of the prohibition. The two categories under discussion are (1) when Shabbos was violated unintentionally, b’shogeg, and (2) when it was violated intentionally, b’meizid.

There are three views:

1.   Rabbi Meir is of the opinion that when Shabbos is violated b’shogeg, there is no prohibition placed on what was cooked or made. However, when Shabbos is violated b’meizid, no one may benefit on Shabbos from that which was done. However, it becomes permissible for use after Shabbos–that is, after enough time has elapsed that it could have been made after Shabbos.

2.   Rabbi Yehudah is of the opinion that one may never benefit from a Shabbos violation on Shabbos itself, and must wait until Shabbos is over, even if the melachah was done b’shogeg. If it was done on purpose, however, the person who did it can never use it. It is forbidden to him forever. (But others may use it after Shabbos.)

3.   Rabbi Yochanan HaSandlar states that if the melachah was done b’shogeg, others may eat (or make use) of it after Shabbos, but the Shabbos violator may never do so. When the melachah was done b’meizid, however, it is forbidden forever to everyone–the violator and acheirim, all others.

The views expressed in the beraisah may be summarized as in the table shown here (see next page).

Final Halachah

How do the Rishonim rule?

The Rambam, Rif, and Shulchan Aruch rule like Rabbi Yehudah: For the (intentional) Shabbos violator, the maaseh Shabbos is forbidden forever, and for everyone else it only becomes permitted on Saturday night.

Tosfos and the Vilna Gaon, however, rule more leniently. They rule like Rabbi Meir, who permits everything on Saturday night and does not forbid it at all if it was done b’shogeg. None of the Rishonim rule in accordance with Rabbi Yochanan HaSandlar, however.

How does the Mishnah Berurah, which is generally considered the final word in halachah, rule? He rules (318:7) that when it is l’tzorech–when necessary–one may rely upon the Vilna Gaon when Shabbos was violated b’shogeg. What about when it was violated on purpose? The Mishnah Berurah does not state that one can rely on the Vilna Gaon’s opinion in such a case. The clear indication is that in cases of intentional Shabbos violation, the Mishnah Berurah rules stringently.

Use of an item that was prepared by work done on Shabbos shogeg
(unintentional melachah)
(intentional melachah)
1. Rabbi Meir Permitted Forbidden on Shabbos

[Permitted after Shabbos]

2. Rabbi Yehudah Permitted after Shabbos Forbidden to the violator forever

[Permitted to others after Shabbos]

3. Rabbi Yochanan HaSandlar Forbidden to the violator forever

Permitted to others after Shabbos

Forbidden to everybody forever


The House

Getting back to the ruling regarding the building of a house, it seems that the Shulchan Aruch is advocating a much stricter position. The Shulchan Aruch’s recommendation is to follow neither Rabbi Yehudah nor Rabbi Meir mentioned above, but to follow the view of Rabbi Yochanan HaSandlar. Why is that the case?

The rationale for this much stronger prohibition lies in the fact that a house is considered a very public item, befarhesya. Otherwise the halachah would not be as stringent.

Clearly we see how seriously we must take the violation of Shabbos through another party when it is so public and permanent an item. Although it is proper not to live in such a house or use it, it would be permitted to derive benefit from the house by selling it, according to the Mishnah Berurah.

The poskim have written, however, that if the Jew contracted with the gentile not to work on Shabbos and made every effort to stop him from doing so, then he should not be punished by the fact that the gentile did it against his instruction. (See Piskei Teshuvos note 244).

The author can be reached at Yairhoffman2@gmail.com.



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