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 Shabbat Parashat Noach | 5766Ask the RabbiQuestion: I make crafts and would like to sell them at an upcoming fair. However, the fair will take place on Shabbat and Sunday. A non-Jew is willing to sell them both days on consignment for a percentage of the sales. May she do this for me on Shabbat?
Answer: In a situation where a non-Jew will conduct commercial activity that involves a Jew’s property on Shabbat, we have to ask a few questions. 1) Is the non-Jew working on the Jew’s behalf or on his own? 2) Does the arrangement appear to the public to be one that is forbidden on Shabbat (marit ayin)? 3) Is the Jew improperly receiving financial benefit from work done on Shabbat?
Work on the Jew’s behalf- The main distinction that determines whether a non-Jew’s activity with a Jew’s property is permitted or forbidden is as follows (see Shulchan Aruch, Orach Chayim 243:1-2 and more). If a Jew pays a non-Jew to do work on the basis of time (per month, day, hour, etc.) his work is considered on the Jew’s behalf and forbidden. The salary is the impetus to follow the Jew’s explicit or implicit directives. In contrast, if the non-Jew is paid by the job (katzatz), then we say that he is working on his own behalf in order to receive a share of benefit from his work and is permitted.
In your case, where the seller at the fair works for a percentage of the sales, she benefits directly from the sales. Thus, she would be working on her own behalf, not yours, even if you would benefit more than she. However, a problem remains. The Shulchan Aruch and Rama (OC 307:4) say, respectively, that one cannot give a non-Jew money to buy or merchandise to sell if he tells him to do so on Shabbat, even in a case of katzatz (see Mishna Berura 307:14).
Is your case like one of telling to sell on Shabbat? On one hand, you could refrain from telling her to sell on Shabbat. Although both of you would like her to sell on Shabbat, we can still say that she does so for her own gain. On the other hand, this may be a more severe case than those of the Shulchan Aruch and Rama. There, it sounds like there are a set number of items to be bought or sold. Thus, it is likely possible for the non-Jew to buy or sell them without doing so on Shabbat. The choice to do so on Shabbat is his. However, if it is unfeasible to sell all of the merchandise without selling on Shabbat, then it is arguably like telling him to sell on Shabbat. The Magen Avraham (307:4) addresses a similar case. He says that one may not ask a non-Jew to buy something for him when the market day, which is the only logical time to obtain the object, is only on Shabbat.
In your case, it seems that you will meet the optimal scope of selling crafts only if the seller sells them for two days, including Shabbat. However, we have a strong indication that even when full profits can be met only with the help of the non-Jew’s work on Shabbat, the Jew can allow the non-Jew to work in a case of katzatz. A bathhouse was classically operated by workers who were paid by time. Therefore, due to marit ayin, it wasforbidden for a Jewish-owned bathhouse to be operated on Shabbat by a non-Jew even for a percentage of the income from admission (Shulchan Aruch, OC 243:1). However, in a place where katzatz is the norm, this practice is permitted (ibid.:2). This case is parallel to yours, as Shabbat’s income cannot be made up on another day. We see that despite your desire that she sell on Shabbat and your gain from it, it is not considered like telling her to do so, if you do not require it of her.
Marit Ayin- This is not a problem if either your product is not publicly traceable to you by its label or a known feature or it is standard that sellers at the fair work for a percentage of the sales.
Profits from Shabbat- As long as the seller gives you the money in a lump sum without singling out money that was made on Shabbat, this is not a problem (Mishna Berura 245:8).
There are other possible ways to deal with these issues. However, we have sufficed to point out that under the normal circumstances we described, having a non-Jew sell the crafts for a percentage of the sales does not require special conditions.
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