A Resident of Chutz La’aretz in Eretz Yisrael on Yom Tov Sheini – Part One

 Courtesy of Ohr Olam Mishnah Berurah

Question: If someone lives primarily in chutz la’aretz, must he observe all of the restrictions of Yom Tov, on Yom Tov Sheini, when in Eretz Yisrael?

Discussion: Outside Eretz Yisrael, a second day of Yom Tov is added to the first and last days of Pesach, to Shavuos, to the first day of Sukkos and to Shemini Atzeres. There is a well-known minority opinion which says that a ben chutz la’aretz (someone who resides outside of Eretz Yisrael) need not observe the second day of Yom Tov while in Eretz Yisrael.23 However, the vast majority of Poskim,24 including Mishnah Berurah (496:13), disagree. Indeed, the widespread custom in Eretz Yisrael already from the Geonic era follows the latter opinion.25

Question: May a ben chutz la’aretz who is in Eretz Yisrael ask a ben Eretz Yisrael to perform a prohibited Yom Tov activity on his behalf?

Discussion: Before addressing this specific question, we must first address a more general one – is one permitted to instruct a fellow Jew to do something which is permitted for him but is prohibited for the person giving the instruction?26 There are three opinions:

It is completely prohibited. This opinion maintains that when a Jew does something at the instruction or request of a fellow Jew, he is considered to be acting as a shaliach (agent) of that Jew. Thus, he may not do anything that the first Jew may not do himself.27 Furthermore, even the leniencies that apply to instructing a non-Jew to perform a prohibited act on Shabbos or Yom Tov28 would not apply here.29

It is the same as asking a non-Jew. This view holds that just as it is prohibited to instruct a non-Jew to do a prohibited act on Shabbos or Yom Tov, it is similarly prohibited to instruct a fellow Jew to do something which is permitted for him but prohibited for the person giving the instruction.30 But according to this view, the leniencies that apply to amirah le’akum apply to instructing a Jew as well.31

It is completely permitted. According to this opinion, there is no prohibition whatsoever of instructing a fellow Jew to do something which is permitted for him to do, despite the fact that it would be prohibited to the individual giving the instruction.32

Regarding this general question, many Poskim follow the third opinion.33 However, with regard to Yom Tov Sheini, there is another question – one regarding the observance of Yom Tov Sheini nowadays – which must be addressed:

Yom Tov Sheini began because the communities beyond Eretz Yisrael were unsure about the true day of Yom Tov, as they were unsure when Rosh Chodesh had taken place. Although today there is a fixed calendar, Yom Tov Sheini must still be observed in chutz la’aretz because it had become the longstanding custom.34 Thus, the following question arises: Is Yom Tov Sheini observed today as it was originally instituted, as a day to be considered as Yom Tov because of uncertainty, or is it being observed as a longstanding custom? If the former approach is correct, then since bnei Eretz Yisrael never had any uncertainty, it would be permitted for a ben chutz la’aretz to have a ben Eretz Yisrael perform melachah for him. If, though, the latter approach is correct, this would be prohibited, since anyone observing Yom Tov Sheini must observe it regardless of any doubt – as if it were Yom Tov for all Jews (including even bnei Eretz Yisrael).35

Regarding our specific question of Yom Tov Sheini, most Poskim prohibit a ben chutz la’aretz to ask a ben Eretz Yisrael to do something that is prohibited on Yom Tov.36 Nevertheless, under extenuating circumstances, there are Poskim who follow the middle opinion cited above, allowing for the same leniencies we find regarding amirah le’akum.37

If the ben chutz la’aretz is asking the ben Eretz Yisrael to perform an action which is inherently permitted on Yom Tov, but under the circumstances it is clear that it will involve a prohibited action – for example, in order to cook he will also start a fire – some Poskim prohibit it.38 Others permit this as long as he is not specifically instructed to start a fire or perform any other prohibited Yom Tov activity.39

Question: If a ben Eretz Yisrael did melachah at his own initiative for the sake of a ben chutz la’aretz, is it permitted for the ben chutz la’aretz to benefit from the melachah?

Discussion: If a non-Jew took the initiative and performed a melachah for a Jew on Shabbos, in many instances, the Jew is not allowed to benefit from it; furthermore, the Jew must sometimes protest the actions of the non-Jew. There are Poskim40 who rule that, as a general rule,41 the same holds true with regard to a ben Eretz Yisrael performing melachah for a ben chutz la’aretz. However, several contemporary Poskim rule leniently.42 They say that, although a ben chutz la’aretz may not instruct a ben Eretz Yisrael to perform melachah for him, he may nevertheless benefit from melachah which the ben Eretz Yisrael did for him at his own initiative.

This has many ramifications. For instance, often a person will not leave a fire burning on the stovetop or the oven on during Yom Tov. He will, instead, prepare all of the food before Yom Tov and use a hotplate to simply heat it up. But for the Yom Tov Sheini meal, the host (a ben Eretz Yisrael) will often want to turn on the oven or stovetop in the regular manner, which is prohibited on Yom Tov. According to the more stringent view, if a Yom Tov Sheini meal is being prepared solely for a ben chutz la’aretz, the host would not be allowed to use the oven or stovetop to prepare food for his guest. Additionally, the host would not be able to use a microwave to defrost food for his guest. According to the more lenient view, however, it would be permitted.43

23 Teshuvos Chacham Tzvi 167, cited by Sha’arei Teshuvah 496:5; Shoel U’meisheiv III:3:28; see also Shulchan Aruch Harav 496:11.

24 Teshuvas Avkas Rochel 26; Sheilas Ya’avetz I:168 and Birkei Yosef cited in Sha’arei Teshuvah ibid.

25 Minchas Shlomo I:19.

26 A source for leniency is the ruling of Shulchan Aruch (263:17) that if someone has accepted Shabbos early, he may instruct a Jew who has not yet accepted Shabbos to do melachah on his behalf. On the other hand, a source for stringency is the ruling of Tur (646, cited in Mishnah Berurah note 16 ad loc.), that someone who is stringent to fast and abstain from melachah on the day following Yom Kippur cannot eat food that was cooked by another Jew. Both of these primary sources are widely discussed by the Poskim referenced below.

27 Chochmas Shlomo 496. See also Shulchan Aruch Harav 263, Kuntreis Acharon 8.

28 For example, it is permitted to instruct a non-Jew to perform a rabbinically prohibited act for the sake of a mitzvah.

29 See Minchas Yitzchak VII:34.

30 Ginas Veradim I:4:16. [Ginas Veradim adds that it is prohibited for the Jew observing Yom Tov Sheini to benefit from the action performed on his behalf.]

31 See Minchas Yitzchak ibid.

32 View of Maharikash cited in Sha’arei Teshuvah 496:4.

33 See Igros Moshe III:73; Koveitz Teshuvos 1:54.

34 See Beitzah 4b.

35 Based on Igros Moshe ibid., and IV:106-107; Minchas Shlomo I:19:3.

36 See Sha’arei Teshuvah 496:4; glosses of R’ Akiva Eiger to 496:3; Igros Moshe ibid.; Shemiras Shabbos Kehilchasah 2, footnote 51, citing R’ S. Z. Auerbach; Minchas Yitzchak VII:34. [R’ Yosef Shalom Elyashiv (Kovetz Teshuvos I:54) maintains that it is prohibited to instruct a fellow Jew only because of the prohibition to speak about prohibited actions; however, since it is always permitted to speak about a mitzvah, it is permitted to instruct a fellow Jew to do something which is necessary for a mitzvah.]

37 Yom Tov Sheini Kehilchaso 14, footnote 6, citing R’ Shlomo Zalman Auerbach and R’ Yosef Shalom Elyashiv.

38 Yom Tov Sheini Kehilchaso 14, footnote 9, citing R’ Yosef Shalom Elyashiv. [According to the view which includes instructing another Jew in the prohibition of amirah le’akum, this would be prohibited as well.]

39 Yom Tov Sheini Kehilchaso 14, footnote 8, citing R’ Shlomo Zalman Auerbach.

40 Ginas Veradim 4:16, Knei Bosem III:14:2 and IV:31.

41 See ibid. for some exceptions.

42 Minchas Yitzchak VII:35, Hilchos Chag Bechag, Yom Tov II, p. 249-250. Yom Tov Sheni Kehilchaso 14:5 and footnote 11 citing R’ S. Z. Auerbach (but cf. 3:4 ad loc.).

43 Obviously, it is important for a ben Eretz Yisrael hosting a ben chutz la’aretz to be sensitive to his guest’s needs. For example, he should ensure that the light in the bathroom remains on, there is sufficient toilet paper prepared, etc. The same is true for a shul in Eretz Yisrael which will be frequented by guests who are bnei chutz la’aretz.