Orach Chaim רמ״ה · 6 séifim (Mechaber) · Yisrael v'akum shutfin
Siman רמ״ה · Level 1 — Partnership between a Yisrael and a non-Jew
Pedagogical study of the 6 seifim of the Shulchan Aruch of Rav Yosef Karo — shutfus, schar Shabbos, hisna mitechila
Plan of the study
Contents
Part A — The text of the Mechaber
1. The 6 seifim of the Shulchan Aruch, אורח חיים סימן רמ״ה — vocalized Hebrew text and translation
Part B — General context and key concepts
2. Why the Yisrael/non-Jew shutfus is a problem — שכר שבת and joint ownership
3. Key concept 1 — בְּהַבְלָעָה (havla'ah, by absorption)
4. Key concept 2 — הִתְנָה מִתְּחִלָּה (hisna mitechila, the prior stipulation) vs סְתָמָא
5. Key concept 3 — מַתִּירִין / אוֹסְרִין (those who permit / those who forbid the retroactive fix)
Part C — Pedagogical study seif by seif
6. Seif א — The basic case: shop, workshop, joint fund
7. Seif ב — The false partner: bathhouse, oven and mill
8. Position of the Rema and the precisions of the Mishnah Berurah
Part D — Synthesis and application
9. Modern practical cases — startup, store, shared rental
10. Practical synthesis — the golden rules
11. Comprehension questions
Section 1 — The text of the Shulchan Aruch
The 6 seifim of Rav Yosef Karo
Siman רמ״ה of the Mechaber is made up of 6 seifim that codify the commercial partnership (שׁוּתָּפוּת, shutfus) between a Jew and a non-Jew: the prior stipulation (seif א), the consented division (seif ב), the remedies when no stipulation was made (seif ג), money given to the non-Jew to trade with (seif ד), merchandise to sell and an oven taken as a pledge (seif ה), and an oven used against one's will (seif ו). The hagahos of the Rema are integrated into the text and marked by הגה.
שולחן ערוך · אורח חיים · סימן רמ״ה · סעיף א
יִשְׂרָאֵל וְעַכּוּ"ם שׁוּתָּפִין אֵיךְ יִתְנַהֲגוּ בְּשַׁבָּת. וּבוֹ ו' סְעִיפִים.
יִשְׂרָאֵל וְעַכּוּ"ם שֶׁיֵּשׁ לָהֶם שָׂדֶה אוֹ תַנּוּר אוֹ מֶרְחָץ אוֹ רֵחַיִם שֶׁל מַיִם בְּשׁוּתָּפוּת, אוֹ שֶׁהֵם שׁוּתָּפִין בַּחֲנוּת בִּסְחוֹרָה: אִם הִתְנוּ מִתְּחִלָּה, בְּשָׁעָה שֶׁבָּאוּ לְהִשְׁתַּתֵּף, שֶׁיִּהְיֶה שְׂכַר הַשַּׁבָּת לָעַכּוּ"ם לְבַדּוֹ, אִם מְעַט וְאִם הַרְבֵּה, וּשְׂכַר יוֹם אֶחָד כְּנֶגֶד יוֹם הַשַּׁבָּת לְיִשְׂרָאֵל לְבַדּוֹ — מֻתָּר. וְאִם לֹא הִתְנוּ בַּתְּחִלָּה, כְּשֶׁיָּבוֹאוּ לַחֲלוֹק נוֹטֵל עַכּוּ"ם שְׂכַר הַשַּׁבָּתוֹת כּוּלָּם, וְהַשְּׁאָר חוֹלְקִים אוֹתוֹ. וְאִם לֹא הָיָה שְׂכַר הַשַּׁבָּת יָדוּעַ, יִטּוֹל הָעַכּוּ"ם לְבַדּוֹ שְׁבִיעִית הַשָּׂכָר וְחוֹלְקִים הַשְּׁאָר. הגה: וְיֵשׁ מַתִּירִין הַשָּׂכָר בְּדִעֲבַד, אֲפִלּוּ לֹא הִתְנוּ וְחִלְּקוּ סְתָם [הרא"ש פרק קמא דע"א ור' ירוחם חי"ב], וְנִרְאֶה לִי דִּבְהֶפְסֵד גָּדוֹל יֵשׁ לִסְמוֹךְ עֲלַיְיהוּ. וְיֵשׁ אוֹמְרִים שֶׁכָּל זֶה לֹא מַיְירֵי אֶלָּא בְּשׁוּתָּפוּת שֶׁכָּל אֶחָד עוֹסֵק בְּיוֹמוֹ [ב"י], אֲבָל כְּשֶׁשְּׁנֵיהֶם עוֹסְקִים בְּיַחַד כָּל יְמֵי הַחוֹל, וּבְשַׁבָּת עוֹסֵק הָעַכּוּ"ם לְבַדּוֹ — מֻתָּר לַחֲלוֹק עִמּוֹ כָּל הַשָּׂכָר, דְּעַכּוּ"ם אַדַּעְתֵּיהּ דְּנַפְשֵׁיהּ קָא עָבִיד, וְאֵין הַיִּשְׂרָאֵל נֶהֱנֶה בִּמְלַאכְתּוֹ בְּשַׁבָּת כֵּיוָן שֶׁאֵין הַמְּלָאכָה מוּטֶּלֶת עָלָיו לַעֲשׂוֹת. וּמִכָּל מָקוֹם לֹא יִטּוֹל שְׂכַר שַׁבָּת אֶלָּא בְּהַבְלָעָה עִם שְׁאָר הַיָּמִים [ר"ן פ"ק דשבת ס"פ כ"כ ופ"ק דע"א].
English translation — seif א
A Jew and a non-Jew who own in partnership a field, an oven, a bathhouse or a water mill, or who are partners in a store with merchandise: if they stipulated at the outset, at the time they entered the partnership, that the profit of Shabbos would belong to the non-Jew alone — whether little or much — and the profit of one weekday, corresponding to the Shabbos day, to the Jew alone — it is permitted. If they did not stipulate at the outset: when they come to divide, the non-Jew takes all the profit of the Shabbosos for himself, and they divide the rest. And if the Shabbos profit is not identifiable, the non-Jew takes for himself one seventh of the profit, and they divide the rest. Hagahah of the Rema: Some permit the profit, bedieved, even if they did not stipulate and divided plainly [Rosh, first perek of Avodah Zarah; R. Yerucham 12] — and it seems to me that in a case of great loss one may rely on them. And some say that all this applies only to a partnership where each one works on his own day [ב"י]; but when both work together all the weekdays, and on Shabbos the non-Jew works alone — it is permitted to divide all the profit with him, for the non-Jew works for his own sake, and the Jew does not benefit from his Shabbos work, since the work is not incumbent upon him. Nevertheless, he should take the Shabbos profit only be-havla'ah (absorbed) with the other days [Ran, first perek of Shabbos, end of perek Kol Kisvei, and first perek of Avodah Zarah].
שולחן ערוך · אורח חיים · סימן רמ״ה · סעיף ב
הֵיכָא שֶׁהִתְנוּ בַּתְּחִלָּה, אִם אַחַר־כָּךְ בִּשְׁעַת חֲלוּקָה נִתְרַצָּה הָעַכּוּ"ם לַחֲלוֹק בְּשָׁוֶה — מֻתָּר.
English translation — seif ב
Where they stipulated at the outset: if afterwards, at the time of division, the non-Jew agreed to divide equally — it is permitted.
שולחן ערוך · אורח חיים · סימן רמ״ה · סעיף ג
הֵיכָא שֶׁלֹּא הִתְנוּ בַּתְּחִלָּה, יֵשׁ תִּיקּוּן עַל יְדֵי שֶׁיַּחֲזִיר הַמּוֹכֵר לָהֶם דְּמֵי הַקַּרְקַע, אוֹ יִמְכְּרוּהוּ לְאִישׁ אַחֵר וְיַחְזְרוּ וְיִקְנוּהוּ בְּשׁוּתָּפוּת וְיַתְנוּ בִּשְׁעַת הַקְּנִיָּה. וְאִם נִשְׁתַּתְּפוּ בַּחֲנוּת וְלֹא הִתְנוּ, יַחֲזוֹר כָּל אֶחָד וְיִטּוֹל חֶלְקוֹ וִיבַטְּלוּ הַשּׁוּתָּפוּת, וְאַחַר כָּךְ יַחְזְרוּ לְהִשְׁתַּתֵּף וְיַתְנוּ בַּתְּחִלָּה. וְאִם קִבֵּל הַקַּרְקַע לַעֲשׂוֹת בּוֹ מְלָאכָה בְּשׁוּתָּפוּת, יְבַטְּלוּ הַשִּׁיתּוּף וְיִמְחֲלוּ זֶה לָזֶה, וְאַחַר כָּךְ יַחְזְרוּ לְהִשְׁתַּתֵּף וְיַתְנוּ בַּתְּחִלָּה. הגה: וְאִם יִרְצֶה לְהַשְׂכִּיר לָעַכּוּ"ם חֶלְקוֹ בְּשַׁבָּת, אוֹ לְשָׂכְרוֹ בְּקִבּוֹלֶת — שָׁרֵי, וּכְמוֹ שֶׁיִּתְבָּאֵר לְעֵיל ס"ס רמ"ד לְעִנְיַן מֶכֶס וּמַטְבֵּעַ דְּשָׁרֵי, וְכָל שֶׁכֵּן כָּאן דְּשָׁרֵי עִם שׁוּתָּפוּת עַכּוּ"ם.
English translation — seif ג
Where they did not stipulate at the outset, there is a remedy: the seller returns to them the money of the land, or they sell it to another person and then buy it back in partnership, stipulating at the time of purchase. If they became partners in a store without stipulating: each one takes back his share, they dissolve the partnership, and then re-enter the partnership and stipulate at the outset. And if he received land to work in partnership: they annul the partnership and grant each other mechilah, and then re-enter the partnership and stipulate at the outset. Hagahah of the Rema: And if he wants to rent out his own share of Shabbos to the non-Jew, or to hire him be-kibolet (by contract) — it is permitted, as will be explained above at the end of siman 244 regarding the tax and the mint; and all the more so here, where it is permitted, with a partnership with the non-Jew.
שולחן ערוך · אורח חיים · סימן רמ״ה · סעיף ד
יָכוֹל יִשְׂרָאֵל לִיתֵּן לָעַכּוּ"ם מָעוֹת לְהִתְעַסֵּק בָּהֶם, וְאַף עַל פִּי שֶׁהָעַכּוּ"ם נוֹשֵׂא וְנוֹתֵן בָּהֶם בְּשַׁבָּת — חוֹלֵק עִמּוֹ כָּל הַשָּׂכָר בְּשָׁוֶה, מִפְּנֵי שֶׁאֵין מְלָאכָה זוֹ מוּטֶּלֶת עַל יִשְׂרָאֵל לַעֲשׂוֹתָהּ, שֶׁנֹּאמַר שֶׁהָעַכּוּ"ם עוֹשֶׂה שְׁלִיחוּתוֹ, וְכֵן אֵין הָעֵסֶק נִיכָּר מִמִּי הוּא. הגה: וְדַוְקָא בִּכְהַאי גַּוְנָא, שֶׁהָעַכּוּ"ם נוֹשֵׂא וְנוֹתֵן לְחוּד עִם הַמָּעוֹת, אֲבָל אִם כָּל אֶחָד עוֹסֵק בְּיוֹמוֹ, וְיִשְׂרָאֵל צָרִיךְ לַעֲסוֹק נֶגֶד מַה שֶּׁעָסַק הָעַכּוּ"ם בְּשַׁבָּת — אָסוּר [ב"י בשם גאון]. וְיִשְׂרָאֵל שֶׁיֵּשׁ לוֹ מַשְׁכּוֹן מִן הָעַכּוּ"ם — ע' לקמן סי' שכ"ה סעיף ב' וג'.
English translation — seif ד
A Jew may give money to a non-Jew to do business with, and even though the non-Jew trades with it on Shabbos, he divides all the profit with him equally — because this work is not incumbent on the Jew, such that one would say the non-Jew is acting as his agent; and furthermore, the business is not recognizable as to whose it is. Hagahah of the Rema: And specifically in such a case, where the non-Jew trades alone with the money; but if each one works on his own day, and the Jew must work corresponding to what the non-Jew did on Shabbos — it is forbidden [ב"י in the name of a Gaon]. As for a Jew who holds a pledge from a non-Jew — see siman 325, seifim 2-3.
שולחן ערוך · אורח חיים · סימן רמ״ה · סעיף ה
מֻתָּר לְיִשְׂרָאֵל לִיתֵּן סְחוֹרָה לָעַכּוּ"ם לִמְכּוֹר, אִם קָצַץ לוֹ שָׂכָר, וּבִלְבַד שֶׁלֹּא יֹאמַר לוֹ: מְכוֹר בְּשַׁבָּת. תַּנּוּר שֶׁלְּקָחוֹ יִשְׂרָאֵל מַשְׁכּוֹן מֵעַכּוּ"ם, וְקִבֵּל עָלָיו הָעַכּוּ"ם שֶׁמַּה שֶּׁיַּעֲלֶה שְׂכַר הַתַּנּוּר יִתֵּן לְיִשְׂרָאֵל בְּרִבִּית מְעוֹתָיו — מֻתָּר לִיטּוֹל שְׂכַר שַׁבָּת, לְפִי שֶׁהוּא בִּרְשׁוּת הָעַכּוּ"ם וְאֵין לְיִשְׂרָאֵל חֵלֶק בּוֹ, וְגַם אֵין הַיִּשְׂרָאֵל אוֹמֵר לוֹ לַעֲסוֹק בְּשַׁבָּת, וְעַכּוּ"ם כִּי טָרַח — בְּנַפְשֵׁיהּ טָרַח, לְקַיֵּים תְּנָאוֹ.
English translation — seif ה
It is permitted for a Jew to give merchandise to a non-Jew to sell, if he fixed a wage for him — provided he does not say to him: "sell on Shabbos." An oven that a Jew took as a pledge from a non-Jew, and the non-Jew undertook that whatever the rent of the oven yields he will give to the Jew as interest on his money — it is permitted to take the Shabbos profit, since the oven is in the non-Jew's domain and the Jew has no share in it; moreover, the Jew does not tell him to work on Shabbos, and the non-Jew, when he toils, toils for himself — to fulfill his condition.
שולחן ערוך · אורח חיים · סימן רמ״ה · סעיף ו
אִם אָפוּ עַכּוּ"ם בְּתַנּוּרוֹ שֶׁל יִשְׂרָאֵל בְּשַׁבָּת עַל כָּרְחוֹ, וְנָתְנוּ לוֹ פַּת בִּשְׂכַר הַתַּנּוּר — אָסוּר לֵיהָנוֹת מִמֶּנּוּ.
English translation — seif ו
If non-Jews baked in a Jew's oven on Shabbos against his will, and gave him bread as payment for the oven — it is forbidden to benefit from it.
Section 2 — General context
Why the Yisrael/non-Jew shutfus is a problem
Before going into the seifim, let us grasp what is at stake. Siman רמ״ד dealt with work performed for a Yisrael by a non-Jew on a contract basis (kablanus). Siman רמ״ה takes a step further: the Yisrael no longer hires a worker — he enters into a shutfus. But a shutfus follows a different logic: there is joint ownership, a shared fate, and therefore everything the enterprise produces — including what is produced on Shabbos — legally belongs to both.
The parent issur is שְׂכַר שַׁבָּת (schar Shabbos, the profit of Shabbos). As long as nothing has been stipulated, the Yisrael's share of the Shabbos profit is already his at the moment it is generated. To then have him take it is to take a schar Shabbos shelo b'havla'ah — the identified, isolated gain of the day of Shabbos.
①
שְׂכַר שַׁבָּת
Schar Shabbos — profit of Shabbos
The parent issur. Taking a benefit specifically tied to the work performed on Shabbos. Always underlying throughout the siman.
②
שֻׁתָּפוּת
Shutfus — partnership
The legal framework in which the Yisrael has a share in the operation. Without a prior stipulation, his Shabbos share already belongs to him.
③
מַרְאִית הָעַיִן
Marit ayin — appearance of transgression
Especially visible when a bathhouse or oven "carrying the Yisrael's name" continues to operate on Shabbos. Risk of public chillul Hashem.
The architecture of the siman in one sentence: Seif א lays down the
rule (without a stipulation, an equal split is forbidden) and the
solution (
hisna mitechila: Shabbos to the non-Jew, a weekday to the Yisrael). Seif ב deals with cases where the shutfus is
fictitious: the Yisrael owns the
bathhouse, the oven or the mill and has merely "taken a non-Jewish partner" to keep the establishment running on Shabbos. There the issur runs deeper — unless the operation is entirely transferred to the non-Jew.
Section 3 — Key concept 1
בְּהַבְלָעָה — havla'ah, by absorption
בְּהַבְלָעָה = "by absorption / inclusion". To receive a Shabbos gain folded into a larger total, without distinguishing or naming it as such. The opposite: שֶׁלֹּא בְהַבְלָעָה = receiving the gain in isolation, identifying it as "from Shabbos". The halacha tolerates schar Shabbos when absorbed into a global account; it always forbids schar Shabbos taken in isolation.
The mechanism of havla'ah was studied in siman רמ״ו (lump-sum multi-day rental of kelim). Here the principle is the same but the ground is more delicate: in a shutfus, the final chalukah necessarily raises the question "how much did I gain on Shabbos?". Havla'ah will therefore be the second line of defense — the first being the prior stipulation (hisna mitechila).
| Criterion | בְּהַבְלָעָה (absorbed) | שֶׁלֹּא בְהַבְלָעָה (isolated) |
|---|
| Is Shabbos named? |
No — blended into the overall reckoning |
Yes — explicitly counted |
| Example |
"Let us split the total profit equally" |
"You did two Shabbosos, take 200" |
| Halachic status |
Tolerated (under conditions) |
Always forbidden |
The tell-tale sign: the moment one
names Shabbos in the accounting
discussion ("you worked such-and-such a Shabbos, I'll make it up with a weekday"), one has stepped out of havla'ah — the Shabbos gain has become isolated and the issur applies.
Section 4 — Key concept 2
הִתְנָה מִתְּחִלָּה — hisna mitechila, the prior stipulation
הִתְנָה מִתְּחִלָּה =
"he stipulated from the start". To agree,
at the very moment the shutfus is formed, that the Shabbos profit will go to the non-Jew alone (
הן רב הן מעט — whether much or
little), and that an equivalent weekday will go to the
Yisrael alone. This stipulation
removes from the Yisrael any share in the Shabbos work from the very outset.
This is the heart of the siman and the solution proposed by the Mechaber. Let us grasp the logic well: without a stipulation, the Yisrael is a co-owner of each day of the operation. To then "give him" his Shabbos share is to give him what is already his — hence schar Shabbos shelo b'havla'ah. With the stipulation, his Shabbos share never existed: the Shabbos work has legally belonged to the non-Jew alone from the start.
Why "much or little" (אם רב אם מעט)?
This precision is of crucial weight. If the stipulation said "Shabbos profit goes to the non-Jew up to X", then beyond X the Yisrael's share would reappear over a Shabbos gain. The wording אם רב אם מעט shuts the door: whatever the amount, what comes out of Shabbos is entirely the non-Jew's. The compensation is on the other side, through a full weekday entirely attributed to the Yisrael — no matter whether that day yields more or less.
| Configuration | סְתָמָא (without a stipulation) | הִתְנָה מִתְּחִלָּה (with a stipulation) |
|---|
| Legal status of the Shabbos work |
Half-Yisrael, half-non-Jew (shutfus) |
Non-Jew alone |
| Does the Yisrael have a share in the Shabbos production? |
Yes — from the outset |
No — not even in principle |
| Equal final split possible? |
No on an equal basis; the non-Jew takes Shabbos, the rest is split |
Yes on an equal basis (Yisrael's weekday against non-Jew's Shabbos) |
| Nature of the gain received by the Yisrael at the split |
Schar Shabbos shelo b'havla'ah → forbidden |
Weekday profit → permitted |
The prior stipulation creates a new legal reality. It is not a mere "accounting agreement" but a distribution of ownership at time t=0. That is why it must be laid down at the time the shutfus is formed — not afterwards, not midway. Once the shutfus is formed without it, one will have to dissolve and reform it (see the Rema of seif ב).
Section 5 — Key concept 3
מַתִּירִין / אוֹסְרִין — the machlokes on retroactive fixes
What happens when nothing was stipulated at the start and the shutfus has been running ever since? Can the situation still be "caught up"? This is the machlokes of the מַתִּירִין / אוֹסְרִין (those who permit / those who forbid) brought down by the Rema.
⊕
יֵשׁ מַתִּירִין
Those who permit
If at the time of the chalukah one does not name Shabbos and splits the total profit as a whole, this amounts to a retroactive havla'ah: Shabbos is folded into the global reckoning. Permitted.
⊖
יֵשׁ מַחְמִירִין
Those who are machmir
Havla'ah cannot be retroactive. The Yisrael's share in the Shabbos work was already born at the moment the profit was generated — splitting as a block after the fact does not change the nature of the gain. Forbidden.
The position of the Rema (and implicitly the Mechaber): one follows the machmir view (וְהָעִקָּר כְּמַחְמִירִין) — no retroactive havla'ah. However, in a case of הֶפְסֵד גָּדוֹל (great monetary loss), one may rely on the meikilim. This "safety valve" is typical of the halachic style: the principle of the rule is strict but recognizes an exception for real economic distress.
הֶפְסֵד גָּדוֹל =
"great loss". A technical halachic concept for a serious economic loss likely to endanger one's livelihood or the enterprise. Allows reliance on otherwise-rejected minority
views. Always to be evaluated with a Rav.
The structural solution of the Rema (seif ב, end)
The Rema points to another path: dissolve the shutfus (לְבַטֵּל הַשֻּׁתָּפוּת) and reform it anew, this time laying down the prior stipulation. This is a halachic tikkun in its own right: one abolishes the old framework and creates a new one, properly set up from the outset. "וְכֵן נָהֲגוּ" — and so was the minhag, says the Rema.
Section 6 — Seif א
The basic case: shop, workshop, joint fund
What is this seif about?
Seif א covers the most common situation: a Yisrael and a non-Jew enter into a shutfus in a commercial or artisanal activity — a shop, a workshop, a farming operation, a joint fund. The enterprise also runs on Shabbos. At the time of the chalukah of the profits, how is one to prevent the Yisrael from receiving a Shabbos gain?
The Mechaber distinguishes three clearly tiered configurations:
①
Configuration 1 — hisna mitechila (the prior stipulation)
From the time the shutfus is formed, it is agreed that the profit of Shabbos goes to the non-Jew alone, and that another weekday goes to the Yisrael alone — whatever the respective amounts. ✅ Permitted.
②
Configuration 2 — setama, without a stipulation, but the Shabbos is set aside at the split
Nothing was stipulated. At the time of the chalukah, it is said: "the non-Jew takes all the profit of the Shabbosos, the rest is split". 🟡 Acceptable b'dieved — this is the curative solution recommended by the Mechaber when one forgot to stipulate. The Yisrael does not receive the Shabbos gain.
③
Configuration 3 — setama + an equal split of EVERYTHING
Nothing was stipulated, and the entire profit is split equally, including what was produced on Shabbos. ❌ Forbidden. The Yisrael takes a schar Shabbos shelo b'havla'ah.
Why is configuration ③ forbidden?
The logic is central: as long as no stipulation has been laid down, the Yisrael is a co-owner of everything the enterprise produces — including the work of Shabbos. His share of the Shabbos profit was born at the moment the money entered the till. To give it to him at the final split is to give him what is already legally his — that is, to have him take a Shabbos gain identified by name by the very fact that it comes from the day of Shabbos.
The simple test: at the time of the chalukah, ask yourself whether the
Yisrael profits from actions done on Shabbos in the operation. If yes (without a prior stipulation and without letting the non-Jew take the Shabbosos first) — that is a schar Shabbos shelo b'havla'ah.
The role of the phrase "אם רב אם מעט"
This precision in the prior stipulation is essential. If it were agreed that "Shabbos goes to the non-Jew up to a certain ceiling", then beyond the ceiling, the Yisrael's share would reappear over a Shabbos gain. The wording "whether much or little" guarantees that no Shabbos profit, ever, will return to the Yisrael. Symmetrically, the compensating weekday is entirely the Yisrael's — no matter the amount.
Views of the poskim
| Source | Position |
|---|
| Mechaber (245:1) |
Three configurations: hisna mitechila permitted; setama + Shabbos to the non-Jew acceptable; setama + equal split forbidden. |
| Rema (gloss 245:1) |
Brings the machlokes matirin / osrin on the retroactive block split; paskens like the machmirim, except in hefsed gadol. |
| Mishnah Berurah (245:1–5) |
Explains that אם רב אם מעט is crucial; insists that the stipulation must be laid down at the time of the shutfus, not before and not after. |
Synthesis of seif א:
- The preventive solution is the prior stipulation: lay down the stipulation at the time of forming the shutfus.
- The curative solution (without a stipulation) is to let the non-Jew take all the profit of the Shabbosos and split the rest.
- The equal split without a stipulation is forbidden — it is a schar Shabbos shelo b'havla'ah.
- The retroactive havla'ah is the subject of a machlokes: machmir as a general rule (Rema), meikil in hefsed gadol.
Comprehension question: Why does the mere fact of laying down the stipulation "
אם רב אם מעט" (whether much or little) suffice to transform the legal nature of the gain received by the
Yisrael? What would happen if the stipulation were capped?
Section 7 — Seif ב
The false partner: bathhouse, oven and mill
Turning point of the siman
With seif ב, the Mechaber shifts register. Seif א dealt with a true shutfus — two partners investing and working together. Seif ב deals with a very different situation: the Yisrael is the sole owner of a bathhouse (מֶרְחָץ), of an oven (תַּנּוּר) or of a mill (רֵחַיִם) — that is, of an infrastructure that can run on Shabbos and generate money. He "takes a non-Jewish partner" in order to keep exploiting the establishment on the day of Shabbos without taking responsibility for the work himself.
The halachic trap: under cover of "shutfus", the
Yisrael is in reality trying to keep
his own establishment running on Shabbos — when the halacha forbids him to do so or to have it done. The Mechaber refuses this ruse and draws a fundamental
distinction between a
shutfus on the operation and a
shutfus on the profit alone.
The structuring distinction of the seif
🏭
Case 1 — Shutfus on the operation (בָּעֵסֶק עַצְמוֹ)
The bathhouse, oven or mill belongs jointly to the Yisrael and the non-Jew. Workers are hired on Shabbos to run the establishment. ❌ Absolutely forbidden. No stipulation can save the situation — the Shabbos work in the Yisrael's infrastructure is forbidden in itself.
💰
Case 2 — Shutfus on the profit alone (בָּרֶוַח לְבַדּוֹ)
The operation is legally entirely the non-Jew's (transfer, sale or effective lease). The Yisrael is merely a silent investor receiving a share of the profit. ✅ Permitted by means of a prior stipulation in accordance with seif א.
Why is this distinction so strict?
Because in case 1, the Yisrael owns the establishment. Having the oven or the mill work on Shabbos = using what belongs to him to produce — exactly as if he had told his non-Jewish employee "have my oven running on Shabbos". No legal fiction of shutfus can mask that reality.
In case 2, by contrast, the operation belongs entirely to the non-Jew. The Yisrael is no more an "owner having his property work on Shabbos" than a mere lender of money. It is a true shutfus on the profits, structurally different from ownership.
The problem of מַרְאִית הָעַיִן
The Mechaber adds: "וְצָרִיךְ לִזָּהֵר בְּזֶה מִמַּרְאִית הָעַיִן" — one must be careful in this matter of marit ayin. The Rema specifies: if the establishment carries the Yisrael's name, it is forbidden even though legally it belongs to the non-Jew. Why? Because a passerby seeing "Cohen & Sons Bathhouse" running on Shabbos will logically conclude that it is the Yisrael who has it running — regardless of the underlying contract.
Three practical rules of seif ב:
- Shutfus on the operation = absolutely forbidden, with no possible workaround.
- Shutfus on the profit alone = permitted, provided that there is a proper prior stipulation.
- Even in the permitted case, the establishment must not carry the Yisrael's name (Rema), failing which the marit ayin makes the arrangement forbidden.
The Rema's tikkun
What is to be done if the shutfus was formed without a prior stipulation and one realizes it later? The Rema points to a way: dissolve the shutfus and reform it anew with the proper stipulation. This is a halachic operation in two stages:
The mechanism of בִּטּוּל וְחִדּוּשׁ
1. בִּטּוּל הַשֻּׁתָּפוּת — formal dissolution of the existing shutfus: the accounts are liquidated and the partnership declared closed.
2. חִדּוּשׁ — creation ab novo of a new shutfus, this time with the prior stipulation (Shabbos to the non-Jew, weekday to the Yisrael, אם רב אם מעט).
"וְכֵן נָהֲגוּ" — such is the customary practice, says the Rema. The new shutfus does not "catch up" the old one; it replaces it starting from a fresh t=0.
Discussion of the Acharonim
One question stays alive among the Acharonim: must the new shutfus actually liquidate the accounts accumulated under the old, or is a formal legal act enough? The Mishnah Berurah leans towards the demanding version: a real liquidation is needed, or at the very least a substantial legal act marking the break.
| Question | Mechaber | Rema | Mishnah Berurah |
|---|
| False partner on the operation |
Absolutely forbidden |
Same (follows Mechaber) |
Same |
| Silent investor, prior stipulation |
Permitted |
Permitted |
Permitted |
| No prior stipulation, retroactive fix |
Implicit: machmir |
Machlokes; paskens machmir |
Machmir, except hefsed gadol |
| Dissolution + reformation |
— |
Permitted, וכן נהגו |
Requires a substantial legal act |
| Yisrael's name on the sign |
Cautionary note (marit ayin) |
Explicitly forbidden |
Confirms the issur |
Synthesis of seif ב:
- Owning an establishment and "taking a partner" to keep it running on Shabbos — absolutely forbidden.
- Transferring the establishment to the non-Jew and being only a silent investor — permitted with a prior stipulation.
- If the sign carries the Yisrael's name — marit ayin forbids it.
- Tikkun in case of an oversight: dissolve + reform with the proper stipulation (Rema).
Comprehension question: What is the halachic difference of nature between "shutfus on the operation" (absolutely forbidden) and "shutfus on the profit alone" (permitted with a stipulation)? Why can the first never be saved by a stipulation?
Section 8 — Complements
Position of the Rema and precisions of the Mishnah Berurah
The Rema (Rav Moshe Isserles, Cracow, 1572) adds to the six seifim of the Mechaber major complements for Ashkenazic practice. Here are the three main contributions that shape day-to-day conduct.
Contribution 1 — The machlokes מַתִּירִין / אוֹסְרִין
On the question: "without a prior stipulation, may one still split as a block without naming Shabbos?", the Rema brings down the machlokes of the Rishonim and paskens like the אוסרין (machmirim) — retroactive havla'ah does not work. But he opens the safety valve: in hefsed gadol, one may rely on the meikilim.
If one forgot to lay down the prior stipulation, the Rema points the way: dissolve the shutfus and reform it anew. "וכן נהגו" — such is the minhag. This is the practical solution offered to the community to make up for an oversight without having to give up the business.
Contribution 3 — The Yisrael's name on the sign
On the case of the bathhouse, oven or mill: if the establishment carries the Yisrael's name, it is forbidden because of marit ayin, even though legally it has passed entirely to the non-Jew. The passerby identifies the business with the Yisrael; seeing it run on Shabbos will cause a chillul Hashem.
Precisions of the Mishnah Berurah
📚
MB — When to lay down the stipulation?
The stipulation must be laid down at the very moment the shutfus contract is concluded — not in a separate act, not afterwards. It is the founding act that must incorporate the stipulation.
📚
MB — The role of "אם רב אם מעט"
A capped stipulation ("Shabbos to the non-Jew up to X") is insufficient. One must give up any share in the Shabbos profit, whatever the amount. Symmetrically, the Yisrael alone takes the compensating weekday.
📚
MB — Requirement of a substantial bitul
When the shutfus is reformed anew, a real legal act of dissolution is required, not an empty formula. Liquidate the accounts, redefine the inputs, sign a new contract.
📚
MB — Scope of marit ayin
The rule of the "Yisrael's name" applies to all supports of public identification: signage, business registry, administrative filings, etc. If the Yisrael's identity is publicly tied to the establishment, the issur applies.
Section 9
Modern practical cases
The principles of the six seifim, formulated for 16th-century bathhouses and mills, apply directly to our contemporary forms of business. Here are some common scenarios.
Permitted
Startup at 50/50 with a non-Jewish partner. From the moment of the company agreement, it is stipulated that the Saturday profit goes to the non-Jew, and one weekday goes to the Yisrael (אם רב אם מעט).
Proper hisna mitechila — weekday gain, no Shabbos gain. Seif א.
Forbidden
Shop run as a company with a non-Jewish partner, with no stipulation whatsoever. At the year-end, the turnover is split 50/50, including what was sold on Shabbos.
Setama + equal split of the whole = schar Shabbos shelo b'havla'ah. Seif א.
Permitted (b'dieved)
Same case without a stipulation: one tells the non-Jew "take the Saturday sales for yourself; we'll split the rest".
Configuration 2 of seif א — curative solution with no Shabbos gain for the Yisrael.
Per the Rema
Without a stipulation, one splits the monthly total equally without ever mentioning Shabbos (retroactive havla'ah).
Machlokes matirin / osrin; Rema paskens machmir, except in hefsed gadol. Ask a Rav.
Forbidden (absolute)
I own a restaurant. I "take a non-Jewish partner" so as to be able to open on Shabbos with paid waiters.
Shutfus on the operation (b'esek atzmo) + the restaurant remains my property = false setup. Seif ב.
Permitted (with conditions)
I sell my café entirely to a non-Jew, remaining only a silent investor who receives X% of the profits. The café is renamed.
B'revach levado + prior stipulation + no marit ayin (name changed). Seif ב.
Forbidden (Rema)
Same case, but the sign still reads "Cohen Café" — known to the whole neighborhood.
Marit ayin — the passerby will identify the Shabbos opening as the Yisrael's. Rema, seif ב.
Ask a Rav
A shutfus formed without a stipulation has been running for 3 years. The oversight is discovered.
Tikkun of the Rema: dissolve the shutfus and reform it anew with the prior stipulation. A substantial legal act is required.
Permitted
Commercial rental of premises by two (Yisrael + non-Jew); the non-Jew runs Shabbos alone within the framework laid out in the initial contract.
If the prior stipulation has distributed the days, the Yisrael does not receive any Shabbos gain. Seif א.
Forbidden
A store run as a company stays open on Shabbos. The Yisrael at the split says "I worked X days, you worked Y Shabbosos — let's balance it out".
A reckoning that explicitly names Shabbos = stepping out of havla'ah. Explicit mention is forbidden. Seif א.
Borderline case
A real-estate holding company with a non-Jew. The building generates rent every day, including Shabbos.
Depending on whether the rents are monthly (= havla'ah lump-sum possible) or daily, and on how it is managed. Ask a Rav.
Ask a Rav
E-commerce platform (24/7 orders) in a 50/50 company, with warehouses run by the non-Jew. Continuous revenue including on Shabbos.
Complex case: nature of the revenue, tax day, automation. Depending on the setup, a prior stipulation is possible. Consult.
Section 10
Practical synthesis — the golden rules
The 5 essential rules of siman רמ״ה
① Shutfus without a stipulation is a trap
As long as no stipulation has been laid down at the founding, the Yisrael is a co-owner of each day's work — Shabbos included. The final split will mechanically bring up a Shabbos gain.
② The preventive solution: hisna mitechila
At the time of forming the shutfus, stipulate that the Shabbos profit will go to the non-Jew alone, and an equivalent weekday to the Yisrael alone, "אם רב אם מעט" (whether much or little).
③ The curative solution: let the non-Jew take the Shabbosos
If nothing was stipulated, at the time of the chalukah one lets the non-Jew take the entire Shabbos profit, and the rest is split. This is the middle path recommended by the Mechaber.
④ Bathhouse, oven and mill: special danger
A Yisrael owner who "takes a partner" to keep his establishment running on Shabbos is absolutely forbidden. Only an effective transfer of the operation to the non-Jew (the Yisrael becoming a silent investor) opens a permissive path.
⑤ Vigilance on marit ayin
The establishment must not carry the Yisrael's name. Otherwise, even if everything is legally in order, the public appearance of chillul Hashem makes the arrangement forbidden.
Quick decision table
| Situation |
Verdict |
Seif |
| Shutfus formed with a proper prior stipulation (אם רב אם מעט) | ✅ Permitted | א |
| Without a stipulation, the non-Jew takes the Shabbosos, the rest is split | ✅ Permitted | א |
| Without a stipulation, 50/50 split of the whole including Shabbos | ❌ Forbidden | א |
| Without a stipulation, block split without naming Shabbos | 🟡 Machmir; permitted in hefsed gadol | א + Rema |
| Yisrael's bathhouse/oven/mill, "partner" to run it on Shabbos | ❌ Absolutely forbidden | ב |
| Full transfer of the operation, Yisrael = silent investor | ✅ Permitted (prior stipulation) | ב |
| Establishment carrying the Yisrael's name | ❌ Forbidden (marit ayin) | ב + Rema |
| Oversight of stipulation: dissolution + reformation | ✅ Permitted (Rema, וכן נהגו) | ב + Rema |
Section 11
Comprehension questions
Question 1 — Fundamental concepts: Define in one sentence each of the three key concepts of the siman: schar Shabbos, havla'ah, hisna mitechila. Which is the parent issur, which is the preventive solution?
Question 2 — The role of timing: Why must the stipulation be laid down at the time of forming the shutfus, and not later? What legal difference does it make?
Question 3 — The phrase "אם רב אם מעט": Why is this precision ("whether much or little") essential in the prior stipulation? What would happen if the stipulation capped the Shabbos profit?
Question 4 — The curative solution: The Mechaber explains that without a prior stipulation, one may still "let the non-Jew take the Shabbosos and split the rest". Why does this solution not, in turn, create a Shabbos gain for the Yisrael?
Question 5 — The machlokes matirin / osrin: What is the machlokes of the Rishonim on retroactive havla'ah? What does the Rema pasken, and in what case does he allow reliance on the meikil view?
Question 6 — Bathhouse, oven, mill: Why does seif ב specifically deal with these three types of establishment? What is their economic and halachic particularity?
Question 7 — Shutfus on the operation vs on the profit: What is the halachic difference of nature between the two configurations of seif ב? Why can the first never be saved by a stipulation?
Question 8 — Marit ayin: Explain why the Rema forbids the arrangement (legally valid though it is) if the sign carries the Yisrael's name. What general halachic principle is at stake?
Question 9 — Tikkun through dissolution: Set out in two stages the mechanism of בִּטּוּל וְחִדּוּשׁ (dissolution + reformation) proposed by the Rema. Why does it suffice, when a stipulation simply added after the fact would not?
Question 10 — Concrete case: You are forming an LLC with a non-Jewish partner over a shop that will remain open on Shabbos. What exact clause must appear in the articles for the split of the profits to be halachically permitted? Draft it in the spirit of אם רב אם מעט.
To go further
If you want to
delve deeper into this siman:
- 📖 Level 2 — Lamdan: for pilpul, the שיטות ראשונים and the Acharonim nuances on retroactive havla'ah
- ✨ Level 3 — Synthesis: for review and quick memorization
- 🎓 Level 4 — Daat HaRav: for the 19 seifim of the Shulchan Aruch HaRav (Admur HaZakein) and the inter-poskim comparisons — the most developed dimension of the siman