Bais HaVaad: E-Commerce On Shabbos & Yom Tov

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By: Rabbi Baruch Meir Levin, Bais HaVa’ad L’Inyonei Mishpat; Shabbos Division

Today’s world of commerce presents a myriad of opportunities that were not even imaginable just a few decades ago. Along with these opportunities, many new halachic issues can, and do arise. One area where this is especially true is the area of e-commerce. In this new found reality one may be doing high volume sales, on a national level, all while singing Yom zeh mechubad at his Shabbos table. In fact, a company can pre-arrange an entire functioning business operation on Shabbos and Yom Tov, including; websites, marketing campaigns, payments processing systems, call centers, order fulfillment centers and more, to be fully functioning, all while taking his Shabbos afternoon nap. Additionally, the expansion of marketplace sites such as E-bay and Amazon, provide even the unseasoned merchant the opportunity to partake in this enterprise. Although the technology is all new and “cutting-edge” the age-old principals of Shmiras Shabbos can and must still be applied. This article will explore how halacha views these and other similar situations.

      Websites

      Let us first address the primary issue of keeping a website open on Shabbos and Yom Tov.

      Chazal instituted a gezairah of Mekach Umemcar B’Shabbos (lit. buying and selling on Shabbos). They prohibited this, as it may lead to the writing of contracts and the like which would be  forbidden M’Dioraysa. Additionally, the Rishonim say, buying and selling falls under the general rabbinic prohibition of Mimtzo Chefzicha which can be loosely translated as ”taking care of business”.

      R’  Akiva Eiger introduces a novel concept pertaining to the prohibition of Mekach Umemkar. He proposes that it is not only the act of acquisition which is prohibited rather the actual effect of the Kinyan is asur as well. Therefore, writes Reb Akiva Eiger, one would be prohibited to make a Maaseh Kinyan, an act of acquisition, even on Erev Shabbos with the stipulation that the actual acquisition go into effect on Shabbos.[1]

      The achronim point out that this is different than all other melachos which would be permitted in this matter, as long as there is no act being done by the person on Shabbos. For example the mishna in Shabbos states that it is permitted to turn on a lawn sprinkler before Shabbos with the intent of having the lawn watered on Shabbos. [2] Indeed many achronim argue on R’ Akiva Eiger based on this Mishnah.[3]

      In the early 1900’s with the advent of the vending machines, the obvious question was posed to the leading Poskim of the time. Was one allowed to keep his vending machine open on Shabbos in order to generate sales to non-Jews? Was this indeed included in the issur of mekach u’memkar?

      The Givas Halevona[4] and others prohibited it based on the above-mentioned ruling of R’ Akiva Eiger. In their view, merely being a party in a sale, even when all the arrangements were done prior to Shabbos, was included in the issur of mekach umemkar.

      However, the Maharshag[5] and others permitted its use. They argued that R’ Akiva Eiger’s ruling only prohibited a sale on Shabbos when it was specifically arranged for the sale to take place on Shabbos. In the case of vending machines however, the Jew arranges the item to be ready for sale at any time and it is rather the non-Jew who directs  the sale to go into effect specifically on Shabbos. In addition, they quote some achronim who do not agree with R’ Akiva Eiger’s view  altogether. The general custom today, seems to be to rely on the Maharshag’s ruling and allow vending machines to operate on Shabbos.[6]

      The Maharshag’s decision, can be applied to a website as well. Therefore, keeping a website open on Shabbos, to allow non-Jews to make purchases then, would similarly be permitted.   

      On-line Auctions

      When dealing with the average on-line auction, the above considerations would also be true. Therefore, when maintaining an active marketplace listing (such as E-bay or Amazon) through Shabbos one may rely on the Maharshag’s leniency.

      However, there are a number of considerations to take into account when dealing with more sophisticated auctions. For example, when keeping an auction listing running that will have an “end on Shabbos” feature, may not be included in the Maharshag’s heter, since the sale is being scheduled specifically for Shabbos.[7] This is especially true when it is listed as “immediate payment required”.

      Concerning one who places a bid to purchase a listing which will end on Shabbos, it is questionable if this could be considered “scheduling a purchase for Shabbos” as there is no way to determine at the time of his bid if he will be the winner.

      There is an additional reason to permit e-commerce on Shabbos, based on the following introduction:

      The issur of Mekach U’memkar has two parts to it; the payment from the buyer to the seller, and the buyer gaining ownership of the item.[8] As with regard to the latter part, when someone “buys” an item through a website, he does not actually take ownership of the item until it is physically delivered to him. Hence, he is not actually buying anything on Shabbos at the time of his winning bid, but rather just entering into an agreement/contract to buy the item in the future, and at the time of payment he is, in fact, pre-paying for the item. This is evident from the fact that if the seller’s warehouse were to burn down before shipping the item, he would have to refund the payment. If he would turn to the buyer and claim, “Sorry your item is lost, but thank you for your business” his name would get blacklisted and he can expect a lawsuit.  He would be expected to refund the buyer’s money due to the fact that the sale was never considered to have been completed. [9]

      That being said, even though it is assur to enter into a contract on Shabbos and Yom Tov, that is presumably not a part of the gezairas mekach umemkar[10] but rather a separate issur of mimtzo chefzecha which would not be subject to R’ Akiva Eiger’s stringency prohibiting the pre-arranging of an acquisition even before Shabbos.

      As with regard to the first half of Mekach U’memkar, the payment from the buyer to the seller, even if the merchant were to automatically have the credit card payments processed immediately and prior the shipping of the item, (which is rarely the case ), the actual payment would virtually never take place on Shabbos or Yom Tov. This is because the actual request for payment generally does not take place until the batching process, usually at the end of the day. At that point, the request goes through the credit card network and the automated clearinghouse to the buyer’s credit card bank. The payment then goes through the ACH and the Federal Reserve Settlement Service, to the merchants account. All this takes an additional 24-72 hours. In fact, any payment received on Yom Tov would in all likelihood represent proceeds from a sale prior to Yom Tov.

      This heter however, may not apply to all e-commerce sales. For example, when selling software downloads or coupons which are automatically sent to the buyer via e-mail, the actual sale takes place immediately on Shabbos.[11] Additionally, receiving a payment via Pay Pal or other similar payment services may at times take place  immediately.[12] These situations however would still have the general heter concerning vending machines.

      Maris Ayin

      Another issue to address is the concept of Maris Ayin,  That is, if a web store known to be Jewish-owned were to be open throughout Yom Tov, people might assume that there are workers packing orders and answering e-mails throughout Yom Tov. To avoid this problem, one should place a notice on his website/listings stating that he will not be processing any orders or answering any e-mails until after Yom Tov. In any case, this would be a wise practice to avoid irate customers!

      It is worthy to keep in mind though, that the Gedolim throughout the generations have always placed extreme importance on safeguarding the “Kedushas Shabbos”. As an example, the Chelkas Yaakov was consulted regarding a heter for a store in partnership with a non-jew to remain open on Shabbos. The Chelkas Yaakov responded that (loosely translated) “Even if it were a bona fide partnership and there would be no halachic concerns, I would still object, as in these countries where Kedushas Shabbos is lax, any heter will cause a further Zilzul Shabbos. A small heter may enlarge and eventually all stores will be open on Shabbos and the concept of Shabbos will be forgotten for this generation and the ones to follow”. One could argue that this would apply to a website as well. 

      As the world of commerce continues to evolve, along with technological growth and consumer demands, comes the responsibility of the  Shomer Shabbos merchant to familiarize himself with the core halachic issues involved. This will enable him to be aware of any shailos that may arise and to properly present them to a competent Halachic authority.  

      Rabbi Baruch Meir Levine Shlit”a is a member of the Bais Hava’ad L’Inyonei Mishpat and part of the Bais HaVa’ad Shabbos division. The Bais HaVaad will be available throught the Yom Tov season to assist with Halachic concerns regarding Shabbos and Yom Tov as well as with other Halachic issues. To contact the Bais HaVa’ad for a Choshen Mishpat consultation or for other Halachic questions or services please call 1.888.485.VAAD (8223) or email [email protected] or visit us at www.BaisHaVaad.com   

 
 

[1] R’ Moshe Feinstein zt”l seems to prohibit placing a limit order to sell stocks which may be filled on Yom Tov based on the opinion of R’Akiva Eiger see Igros Moshe, O.C. 3:44.

[2] See Avnei Nezer 51 for an explanation.

[3] Ohr Sameach 23:12. Maharam Shik 131

[4] O.C. 55

[5] 2,117

[6] See Shemiras Shabbos Cihilchosa 29:28

[7]  This is true in spite of the fact that an opposing argument may be presented: A purchase on E-bay is essentially a contract (as will soon be explained). But a bid is also considered a contract, albeit conditional on winning the auction. (In fact E-Bay’s policies state “A bid or a purchase on E-bay is considered a contract and you are obligated to purchase the item”.) Therefore if the winner placed his bid before Shabbos then essentially nothing happens on Shabbos except a clarification that the original conditional contract remains in effect. And if the winner only placed his bid on Shabbos then this contract would not be considered as “scheduling specifically for Shabbos”  since it was not known whether this person would place a bid altogether.

[8] See Minchas Yitzchok  4, 34,  where he states that each part by itself is assur to take place on Shabbos.

[9] This is in fact E-bays official policy.

[10] See Maharam Shik 131 concerning an auction for a lease on a government issued sales license that was to take place on Shabbos .There, he states that submitting & winning the bid (although binding by penalty), would not be included in the gezairas mekach u’memkar since the actual lease is not acquired until later. See also Bais Yosef quoted in  Magen Avrohom  306, 11 that a binding commitment to donate an item would not be considered mekach u’memkar since there is no actual transfer of ownership.

[11] It may be argued however that these transactions are not  halachically considered “sales” since the buyer does not get any physical item but rather the seller is just “feeding” information to the buyer’s computer. Hence it would not be subject to the gezairas mekach umemkar .

[12] It is unclear however, if the whole concept of receiving a payment through a bank account has the halachic status of  receiving “money”, as  a bank account is actually a loan account to the bank, and all deposits are just loans to the  bank to be repaid to the account holder at his request.

1 COMMENT

  1. http://www.bhphotovideo.com the multi-billion dollar company does NOT accept sales & does not allow you to add to your cart and of course not checkout on from 15 minutes before shabbos to 15 minutes after 72 minutes, which is a huge ‘kidush hashem’ as one can see throughout forums & blogs around the web,
    http://www.allinkosher.com which is of course selling kosher/jewish products as one assumes out of its name, is also going in B&H Photo’s footsteps & not accepting any sales on shabbos – where both have a reminder throughout shabbos & yom tov on their website that they won’t accept any order ‘DUE TO SHABBOS OBSERVENCE’ which is a kiddush hashem, that themselves as jewish will follow their principles

    To note: I believe there are more, but since I know of those I felt the importance to give it a shout (I think http://www.ice.com is also not selling on shabbos, which is also a top online jewelry site)