Explanation: In other words, there is no reason to decree that one cannot rent houses to Nochrim in order to ensure Jews do not sell houses to them, as selling houses does not take away the obligation of Mezuzah. However, selling fields means that Ma'aser will not be taken from the produce grown from these fields.

Opinion#1: Some understand that this is even according to the opinion in Gitin (47a) that Nochrim do not have a Kinyan (acquisition) in Eretz Yisrael that takes away the obligation of tithing from produce grown on their land.

Opinion (cont.): This is because it is enough that the land is in the possession of Nochrim, and that he is planting it and not taking Ma'aser from the crops. This means that the Mitzvos that could be done from the crops of this field are not being kept. However, there is no taking away of Mitzvos from the house, as the house itself is not obligated in Mezuzah unless a Jew lives there.

Question#1: This is not understandable. If so, what does the Gemara mean when it says later that according to Rebbi Yosi, the Rabbanan only made a decree of not renting due to not selling regarding a field that has both aspects? Regarding rental itself there are also two aspects, as the Nochri will not take off Ma'aser from the produce of the field that he is renting!

Question#2: There is also a difficulty, as the term "Hafka'ah" implies he is taking away the obligation completely from the land. In this case he is not taking away the obligation completely, being that he has no Kinyan. Even now that the Nochri has the land, if a Jew will plant it the crops will be obligated in Ma'aser.

Opinion#2: It therefore appears that this is only according to the opinion that a Nochri has a Kinyan in Eretz Yisrael. When he sells his field to a Nochri, he takes away the ability for the produce of the field to be obligated in Ma'aser. Even if a Jew will plant the field, the crops will no longer be obligated in Ma'aser.

Opinion#2 (cont.): However, a house is not taken away from the obligation of Mezuzah, as even if he will not sell it to a Nochri it will not be obligated in a Mezuzah according to Torah law, as long as a Jew does not live there. It is even exempt from a Mezuzah according to Torah law if a different Jew rents it and lives there.

Opinion#2 (cont.): We indeed rule this way. The Gemara in Menachos (44a) says that if someone rents a house outside of Eretz Yisrael, he is exempt from having a Mezuzah for the first thirty days. Afterwards, he must have a Mezuzah. If he rents in Eretz Yisrael he must have a Mezuzah immediately. However, this Gemara is only discussing a Rabbinic obligation, as according to Torah law one is exempt from having a Mezuzah when he rents, as the Pasuk says, "Your house" implying that it is not someone else's house.

Implied Question: This is despite the fact that we derive, "Your house" implies "your coming (into the house)," indicating that one should put the Mezuzah on the right hand side which is the way one comes into a house. (How can we make this derivation if we need this Pasuk to teach that one must own the house to be obligated in Mezuzah?)

Answer: Even so, there are two Pesukim "Your house" (one for each of these teachings).

Answer (cont.): However, the Rabbanan said he is obligated to have a Mezuzah after thirty days because it appears as if it is his. This is akin to a borrowed Talis. For thirty days of borrowing it is exempt from having Tzitzis on it, and the Torah understands it is forever exempt from Tzitzis, as the Pasuk says, "Your clothes" implying that they are nobody else's clothes. The Rabbanan decreed that after thirty days he must put Tzitzis on this article of clothing, as it appears that it is his.

Question: Rabeinu Elchanan asks that in Gitin (8a) the Gemara says that in three ways Surya is like Eretz Yisrael, and in three ways it is like Chutz la'Aretz. Why didn't this Gemara also discuss the law of our Gemara, that regarding the sale of houses and renting fields Surya is equal to Eretz Yisrael, and regarding the renting of houses Surya is like Chutz la'Aretz? (See Avodah Berurah who writes that many Acharonim include the parentheses in the correct text, unlike the Maharsha. Some even say that this is a mistake in the text of the Maharsha.)

Question (cont.): We even find that the Gemara there lists a topic that is divided. (In other words, one should not say that our Gemara's law is not listed because in certain aspects of the law it is like Eretz Yisrael and in certain aspects it is like Chutz la'Aretz, and that the Gemara there does not want to split hairs regarding a certain law.) The Gemara says that Surya's earth is considered impure like the earth of Chutz la'Aretz, and that whoever wants to enter Surya in a pure manner should enter like he enters Eretz Yisrael. (In other words, while the earth of Surya is considered impure like Chutz la'Aretz, its air is considered pure like that of Eretz Yisrael. The difference is regarding someone who enters Surya while being carried in a box. He does not become impure until he touches the ground. This is as opposed to Chutz la'Aretz, where he becomes impure the second he enters the airspace of Chutz la'Aretz, even if he is just in a box.)

Answer: The Ri says that the Tana in Gitin (8a) left over our case.

Implied Question: This is despite the fact that the Tana counted the (three) ways that it is similar to Chutz la'Aretz and Eretz Yisrael. (If he said three, it sounds like he meant only three ways, and did not leave anything over. How can we say our Gemara's law was indeed knowingly left over?)

Answer: Even so, we do find that the Tana leaves over certain laws, even when giving a number, as is evident from many other places is the Mishnah and Gemara.

Opinion#1: Rashi explains that this is (called an individual capture) because the Urim v'Tumim and six hundred thousand people from Bnei Yisrael were not present.

Opinion#2: It seems that the more likely explanation is that given by Rabeinu Yitzchak from Harfut, that whatever individuals captured, such as what was captured by Yair ben Menasheh (see Bamidbar 32:41), is not part of Eretz Yisrael.

Question: However, this is difficult. If this is part of Eretz Yisrael, this is not called the capturing of an individual. If it is part of Chutz la'Aretz, even if there are six hundred thousand people there this is called the capturing of an individual! (The Avodah Berurah explains that Tosfos is asking that if it is part of Eretz Yisrael, it should not matter who captures it. If it is part of Chutz la'Aretz that is captured or the purposes of an individual, it should not matter that six hundred thousand people capture it!)

Opinion#3: It therefore appears that as long as there is no permission to capture, the area captured is still called Chutz la'Aretz. As long as Bnei Yisrael did not capture all of Eretz Yisrael, they did not have permission to capture parts of Chutz la'Aretz.

Opinion#3 (cont.): This is stated in the Sifri in Parshas Eikev. The Sifri says that when David captured Aram Naharayim and Aram Tzovah, Hash-m said to him, "You have not captured an area near your palace, and you are going and capturing places in Chutz la'Aretz?! This is as the Pasuk says, "And the Yevusi who sit in Yerushalayim etc."

Explanation#1: The usage of this expression (Lifnei Iver and Lifnei d'Lifnei) is just a hint at the correct explanation, which is that we do not suspect this will happen.

Explanation#2: Alternatively, being that the prohibition against creating a "neighborhood of Nochrim" is in order that Jews will not be damaged, this is indeed called a stumbling block before a blind person.

Implied Question: One can debate the source people have for selling and renting houses to Nochrim, which they commonly do even for the purpose of dwelling. (Why is this permitted?)

Answer#1: Some want to bring proof to permit this from the Tosefta (ch.2) that says that a person should not rent his house to Nochrim anywhere, because it is well known that they bring idols into the house. Even so, we do rent them stables, storehouses, and shops, even though it is known that they bring idols into these places. This implies that the difference between these cases is whether or not he permanently brings idols into this place. In places where he does not bring idols permanently, this is permitted.

Answer#1 (cont.): According to this, at times when the Nochrim amongst us do not bring an idol permanently into their house unless there is a dead person or someone who is going to die in the house, and even at that time they do not worship the idol, it is permitted (to rent or sell houses to them).

Question: There is no clear proof from there. One can say that the leniency of stables and storehouses is because the Torah only forbade this in a house that is made to live in, as the Pasuk says, "You should not bring an abomination into your house." It is forbidden to rent or sell a house to such idolaters, even if they will only bring in their idols in a temporary fashion. However, houses that are not made to live in were not forbidden by the Torah. This is why stables and storehouses are permitted.

Answer#2: Rabeinu Chaim Cohen brought proof to permit this from the text of the Yerushalmi that says that even where they said (i.e. the custom is) one can rent to Nochrim, they did not say this was permitted to be used as a house. This implies that in a place where the custom is (even) to sell, one can sell to them, even if they will live there.

Answer#2 (cont.): He understood that the reason for this is because Chutz la'Aretz, as opposed to Eretz Yisrael, is not called "your house."

Question#1: This is very difficult. Firstly, the Ri understands that there is no reason why a Jew in Chutz la'Aretz should be worse than a Nochri. Even according to the opinion that a Nochri does not have a Kinyan in Eretz Yisrael, he clearly does have a Kinyan in Chutz la'Aretz.

Question#2: There is another question asked by Rebbi Yehudah (one of the Balei Tosfos, see Seder Yakov). The Pasuk says, "You house" regarding Mezuzah. This implies that someone who has a house in Chutz la'Aretz should be exempt from Mezuzah. However, the Gemara in Menachos (44a) says that if someone rents a house in Chutz la'Aretz, he is exempt from Mezuzah for thirty days, and after that he is obligated in Mezuzah. The reason for this obligation is as stated earlier, that everyone thinks it is his. This implies that if it is indeed his house, it is obligated right away!

Question#3: There is another question that the Ri has on the Yerushalmi from the Tosefta quoted earlier (in this Tosfos). The first part of the Tosefta says that we rent houses to them, but not fields and vineyards. We do not allow them to be different types of sharecroppers (see Bach who changes Arvus to Arisiyos), whether they are Kusim or Nochrim. (This is similar to selling them a portion of the field, and is therefore included in the decree.) This is only in Eretz Yisrael. In Surya, we sell them houses and rent them fields. In Chutz la'Aretz, we sell both houses and fields. In every place, we say that a person may not rent his house to a Nochri, as it is known he will bring an Avodah Zarah in the house. This implies that even in a place where one is allowed to sell a house to a Nochri, he may not rent his house to a Nochri.

Answer: However, the Ri understands that the Yerushalmi brought by Rabeinu Chaim is a clear proof. There is no question from the Tosefta, as "every place" refers to Eretz Yisrael and Surya. Even the Tana Kama of our Mishnah holds this way, as he forbids selling houses in Eretz Yisrael and Surya. However, in Chutz la'Aretz where they permitted to sell houses, it is also permitted to rent them houses, as is stated in the Yerushalmi.

Answer (cont.): The reason is not because of Rabeinu Chaim's reason (based on the Yerushalmi in (d), but rather because of Rabeinu Elchanan's reason. His reason is that when the Torah said, "Do not bring an abomination into your house" it is possible to say that this is only prohibited in the house of the Jew himself, where the Jew himself actively resides. This is law even applies in Eretz Yisrael, similar to the obligation to have a Mezuzah which is only if one is living in his house. However, if someone rents a house, even in Eretz Yisrael, he is exempt from having a Mezuzah according to Torah law. The Rabbanan decreed not to rent to an idolater, because he brings idols into the house.

Answer (cont.): Now, it is understandable that this only applies to houses that are made to live in. However, if they are not made to live in, there is no decree. They therefore permitted renting stables and storehouses. Being that renting houses is only forbidden according to Rabbinic law even in Eretz Yisrael, they were lenient regarding Chutz la'Aretz.

Question: Rabeinu Yehudah asked a question from the Mishnah in Shabbos (18a). Rabban Shimon ben Gamliel says that his father's house had a custom that they would give their clothes to a Nochri washer three days before Shabbos. He argues there on Beis Hillel, who says that one can even give clothes to a Nochri washer right before Shabbos. This implies that Rabban Shimon ben Gamliel does not hold that a Kablan (one who accepts a job based on a per job rate, as opposed to per hour) is considered as doing his own work (when he chooses to do work commissioned by a Jew on Shabbos instead of doing the work during the week).

Answer: He answers that Rabban Shimon did not hold this was the Halachah, but rather he personally was stringent (as was the custom of his father's house). This is also Rashi's expanlation in Shabbos (ibid.).

Question: However, Rabeinu Yehudah asked another question. The Gemara in Beitzah (21b) lists three things that the house of Rabban Gamliel did according to the opinion of Beis Shamai. Why doesn't the Gemara there list this as well? Rabban Gamliel from Yavneh was the father of Rabban Shimon ben Gamliel (so they certainly did the same thing, as Rabban Shimon said he acted in this matter according to the custom in his father's house).

Answer: He answered that in Beitzah (ibid.), the Gemara is only referring to laws regarding Yom Tov. However, in Shabbos there are many ways that the house of Rabban Gamliel acted like Beis Shamai.

Observation: Based on this answer, we can answer Rabeinu Elchanan's question regarding why we do not rule like Rabban Shimon ben Gamliel in Shabbos (ibid.). After all, don't we say that wherever we find the opinion of Rabban Shimon ben Gamliel in the Mishnah that the law follows his opinion? Rather, it must be that he certainly was only personally stringent in this matter (and did not rule that this was the law).

Opinion#1: Rabeinu Tam ruled that the law follows Rabban Shimon ben Gamliel, who says that the sharecropper is considered as doing his own private work on Shabbos (and is not viewed as a messenger of the Jew). He therefore allowed a Jew who hired a Nochri contractor to build him a house (for a set price) to even work on Shabbos.

Proof#1: This is a Kal v'Chomer. If the Nochri can be a sharecropper on Jewish owned land, meaning that the portion of the Jew is improving while the Nochri is working on Shabbos, certainly a contractor who is not improving anything for the Jew by hurrying to finish his work (as the Jew does not care if he does it during the week) should be allowed to build on Shabbos! We should say that it is considered as if the contractor is working for himself.

Proof#2: Rabeinu Tam also brought proof from the Gemara in Shabbos (17b) which states that Beis Hillel permitted one to bring clothes to the Nochri washer and leather to the Nochri tanner right before Shabbos. This was even permitted if it would be done publicly. The Beraisa quoted by the Gemara (18a) there, which says that one cannot put wheat in the mill powered by water unless they will already be ground before Shabbos, is attributed by the Gemara to be according to Beis Shamai. However, according to Beis Hillel this is permitted (even though the grinding will continue into Shabbos, as long as one put the wheat in before Shabbos), even if it makes a noise.

Proof#3: The Gemara there quotes another Beraisa (19a) regarding a journey by boat that one can buy a fare on a Nochri run boat on condition that the Nochri will not work on the boat on Shabbos. Rabban Shimon ben Gamliel says that one does not have to make this condition, as the Nochri will surely not refrain from doing work because of this Jew. (This shows that the Nochri is allowed to keep sailing, because he is sailing for himself.)

Implied Question: According to this, the Gemara in Moed Katan (12a) is difficult. The Gemara there says that Shmuel says that a contractor cannot do work inside the Techum (Halachic boundary for Shabbos) of the city, and can only do work outside the Techum. (Why should this be if we stated above that he can even do work publicly?)

Answer: Rabeinu Tam understands that the entire discussion in Moed Katan is referring to a mourner (who is not allowed to do work). He explains that Shmuel means that a contractor doing work for a mourner cannot do so in the boundaries of the city of the mourner. Rav Papa then says that he can only do work outside the boundary if there is no city close to there. However, if there is a city close to there he cannot do this work. This is because the people of that city will see the mourner's work being done when they travel there.

Answer (cont.): Rav Sheshes says that when there is no place that is close by we only say this is permitted on Shabbos and Yom Tov. This is because it is uncommon for people to travel from place to place on Shabbos and Yom Tov. This means that it would specifically be permitted for the mourner to have a Nochri do work for the mourner on Shabbos and Yom Tov. However, on Chol ha'Moed people travel from place to place, and it would be prohibited, just as it would certainly be prohibited on a regular weekday. The Gemara is teaching that it is even forbidden on Chol ha'Moed, although people travel less on Chol ha'Moed than on a weekday.

Answer (cont.): According to this explanation, the only thing prohibited in Moed Katan (ibid.) was working for a mourner. This is because they were very stringent regarding working for a mourner, as is apparent there in Moed Katan (11b). The Gemara there says that Rav Shisha the son of Rav Idi says there that things that are permitted on Chol ha'Moed are forbidden when one is a mourner, and the Gemara quotes a Beraisa that supports him.

Answer (cont.): The incident with Mar Zutra, where they built him a palace when he was a mourner outside the Techum, was on Shabbos and Yom Tov, and due to the reason we have just explained. This is the opinion of Rabeinu Tam.

Opinion#2: Rabeinu Yitzchak explained that a contractor may not work on Shabbos on the house of a Jew. He pushed aside all of the proofs of Rabeinu Tam.

Opinion#2 (cont.): There is no proof from the fact that leather can be given to the tanner right before Shabbos. Being that it is not attached to the ground and the work is done by others, it is permitted (to be given right before Shabbos). Even work for a mourner may be done in this situation, as is explicitly stated in the Gemara in Moed Katan (11a), "If his work was in the hands of others, it cannot be done in his house, but it can be done in the house of others."

Opinion#2 (cont.): The case of putting wheat in the mill right before Shabbos is also not proof to our case, as in that case where he puts the wheat into the mill they are ground by the mill without any human action being done. This is not similar to a Nochri who does work with his hands, and is like a Jew is commanding him to do work on Shabbos.

Opinion#2 (cont.): This is also unlike the case of a Nochri being able to rent a field. This is because it is normal for a person to be a sharecropper in order to get half, one third, or one quarter of the produce of the field. However, it is common to hire workers to build a house based on a daily wage. Accordingly, someone who sees this work does not say that the Nochri is doing his own work, but rather that he is a day laborer (which is the equivalent of a Jew paying a Nochri to do work for him on Shabbos).

Opinion#2 (cont.): Additionally, in the Yerushalmi in Shabbos the implication is that a contractor may not do work on a Jewish house during the Jew's mourning period or on Shabbos. The Yerushalmi there says that Nochri workers that were working on a Jew's house are forbidden (to do work at these times). If they are in their own house, they are permitted to do this work. Rebbi Shimon ben Elazar says, This is only true regarding a contractor. However, a day laborer may not do such work (even in his own house). This is only if things he is working on are detached from the ground. If they are attached, they are forbidden. If he is doing this in another city, it is always permitted. What does this mean that it is "always" permitted? Rebbi Ila explains that it is permitted whether it is detached or attached, as long as he is a contractor (not a day laborer). Rebbi Shimon ben Bisna says in the name of Rebbi Acha that regarding Shabbos, mourning, and idolatry the law follows Rebbi Shimon ben Elazar. This implies that the law follows Rebbi Shimon ben Elazar that one cannot even have a Nochri contractor work for him on Shabbos if he is dealing with things connected to the ground in his city, or in the boundaries of his city.

Opinion#2 (cont.): This is not merely a prohibition against building the building (i.e. home) itself. It is even forbidden to shape the stones and fix the beams, even far away from the wall (of the house). This is even forbidden in the house of the Nochri, being that this is for the purpose of something connected to the ground. This is part of the argument quoted in the Yerushalmi, regarding which we rule like Rebbi Shimon ben Elazar. Even the Rabbanan agree that one may not allow the Nochri contractor to build his actual house on Shabbos, as this is in the domain of the Jew. They only permitted work on detached items in the house of the Nochri, such as giving him clothes to clean.

Opinion#2 (cont.): Even though the law follows Rebbi Shimon ben Elazar regarding a Nochri contractor, the law does not follow him regarding a sharecropper. Rather, the law follows Rabban Shimon ben Gamliel, as the Stam Mishnah is according to his opinion. The reason for this is because the sharecropper is working for himself (as we explained above, see a-b).

Observation: Even though Rabeinu Tam held it was permitted for a contractor to build a Jew's house on Shabbos, he was stringent not to rely on this leniency himself. When he built his own house, he did not allow Nochrim to work on it on Shabbos, even though they were contractors.

Explanation: The Ram would explain that the reason why a sharecropper may work for a Jew on Shabbos is because he does not take any money for this work. Rather, he takes part of the value of the land as a partner. However, a contractor working on a house receives money as his wages. He is therefore not like a partner, and it is forbidden for him to work on the house on Shabbos. This is why the Gemara says that the Nochri cannot run the bathhouse on Shabbos, as people do not generally have a sharecropper relationship with such a Nochri. Being that the Nochri takes money as his wages, and he does not take a portion of the bathhouse itself (as does a sharecropper), it is forbidden.

Opinion: It should therefore be permitted to rent out a mill to a Nochri if he will merely take a portion of the flour that he grinds, and he does not take money. This makes him akin to a partner in the mill.

Opinion (cont.): We see from here that the Gemara's conclusion is that a Nochri can only be a contractor for detached things in his own domain (i.e. a cleaner). However, he can only be a contractor for things connected to the ground if he is doing so outside the boundaries of the city. This type of work is forbidden inside the boundaries of the city.

Question: This is difficult. Why is the Gemara saying that if the Beraisa says (renting a field to) a Kusi is forbidden, (it implies) a Nochri is permitted. Perhaps it means a Kusi is forbidden, and certainly a Nochri would be forbidden!

Answer#1: The implication is based on the fact that the Beraisa pointedly decided not to discuss a Nochri, as did Rabban Shimon ben Gamliel in the Mishnah, and instead discussed a Kusi. This implies it is specifically talking about a Kusi and not a Nochri.

Answer#2: It is also possible to answer that he holds that it would be permitted to rent to a Nochri, as this is referring to a Kusi. If it would be forbidden to rent to a Nochri, it should say Nochri. This is because there is only one problem in renting to a Nochri, in that the work is known to be because of him. This would certainly be true regarding a Kus, who has the added prohibition of Lifnei Iver, as we say later.

Answer#3: Rabeinu Elchanan also explains that this deduction was helped by our Mishnah which said that it is permitted to rent to a Nochri, and does not bring any opinion that argues on this law.

Observation: For this reason, it is understandable that the Gemara said regarding Rabban Shimon ben Gamliel's statement, "However, it is permitted to rent a field to a Nochri." This is not referring to Rabban Shimon's statement, as he specifically discussed a bathhouse. It is possible he meant this only applies to a bathhouse, as opposed to a field which is forbidden to rent to a Kusi because he is doing work on Chol ha'Moed. (Our Gemara made this deduction based on our Mishnah, not based on Rabban Shimon's statement regarding the bathhouse.)