On Pesach we all
celebrate our freedom from slavery and our right to self-determination. Thank
G-d we live in a world where the entire concept of slavery is virtually a thing
of the past, the culmination of a long process that started with the Exodus from
Egypt.[1]
However, as we shall see, some of the prohibitions relating to treatment of Jewish
slaves still have practical repercussions today.
The Rambam
counts no fewer than four negative commandments that could fall into this
category:
1) Not to
sell a Jew in the manner that slaves are usually sold (Vayikra 25:42).
2) Not to
make a Jewish servant work rigorously (Ibid. 43). This refers to working for
undefined lengths of time (i.e. if the worker does not know when he will be
able to finish work for the day), or work that has no use other than keeping
the servant occupied.[2]
3) Not to
allow a non-Jew to do so (Ibid. 53).
4) Not to
give him work usually designated for slaves (Ibid. 39). Examples given are
carrying the master's fresh clothes after him when he goes to the bathhouse or
removing his shoes,[3]
although this commandment is definitely dependent on the local custom. Nowadays
there is certainly no problem for an elderly or disabled person to employ a
carer to do tasks for him that he is unable to do himself, as long as the carer
is treated fairly and respectfully.
Although even
today some employers may be guilty of transgressing some of the above, to my
knowledge it is unusual. An issue that comes up far more often is when an
employee wants to terminate his contract and cease work. While physically
forcing him to stay is certainly impossible nowadays, fines for terminating a
contract early sometimes do exist. Many are aware of their rights in this
respect according to the law of the land; fewer know what the Torah has to say.
"A
worker may back out even in the middle of the day"
This topic is
subject to a dispute among the tana'im, in a case where the going rate paid to
workers is now more expensive than it was at the time that terms were agreed.[4]
R' Dosa says that since the employer will now have to pay more to find
replacement workers, he has the right to deduct this extra cost from the wages
paid to the first workers who reneged.[5]
The Tana Kama
(first, unnamed view) disagrees, maintaining that the employees who reneged do
not lose anything from what the employer agreed to pay them originally (per
time or work done). The conclusion of the gemara is that the halacha follows
the Tana Kama if the workers are paid by the hour (or other unit of time), but
if they are paid for the job done irrespective of time (kablanim), the
halacha follows R' Dosa and the employer can deduct his extra costs from their
wages.[6]
Rashi explains
the reason for this distinction. Elsewhere, the gemara explains that a worker's
right to retract "even in the middle of the day" is learned from what
we are told in the Torah that B'nei Yisrael are G-d's servants,[7]
not servants of others.[8]
The hourly worker referred to is one who must work at specific times – if he
did not have the right to terminate his contract at any time this would be akin
to slavery. One who is paid for a job but can choose when to work is not a
slave, even if he is unable to back out.[9]
Explicit
conditions and dina d'malchusa
We can seemingly
conclude from here that a regular employee does indeed have the right to stop
work at any time, without notice and without any financial penalty. It would
appear that this is true even if it was explicitly stipulated in the contract
otherwise, as the gemara is discussing a case where the original terms of
employment were to complete a certain task.[10]
Similarly, even
if the law of the land explicitly allows the imposing of fines on workers who
terminate their contracts, this would not have any validity. In "Nezikin-
the part of the Torah that we can change", I explained that the power
of a community to make its own monetary laws is an extension of the same right
that individuals have by mutual agreement. If mutual agreement is not enough,
neither is the law of the land.[11]
At least in this
country (Israel), the law usually requires a worker to give a month's notice
before stopping work. If he fails to do so, he may have to compensate his
employer the amount of his monthly salary (the same is true if the employee is
fired without notice).[12]
At first sight, this law is contrary to Torah law and its enforcement would be
considered robbery.
Davar Ha'aved
However, there
is an exception to the rule above. The Mishna tells us that there are special
laws if one hires a donkey or wagon driver to bring instruments for use at a
wedding or funeral, workers to raise flax from the water it was soaking in, or for
any davar ha'aved (a job where neglect will result in a loss). In these
cases, if the workers renege on their agreement, the employer has the right to
hire replacements at expensive rates (if he cannot find regular workers at
short notice) and to claim the extra cost from the original workers.[13]
Although this
exception seems very logical, in light of what we have written above some
explaining needs to be done. If under normal circumstances fining workers who
quit their jobs without notice is forbidden and tantamount to slavery, how does
potential monetary loss to the employer change this?
The answer is
simple. When we left Egypt we did not achieve freedom so that we could act
however we please. We were freed from human masters in order to devote our
lives to G-d and become His servants. If our fellow Jew has a job that needs
doing in order to prevent a loss, Hashem commands us in the Torah to help. One
who takes on the responsibility of this job is not a slave to the employer but a
servant of G-d.[14]
With this in
mind, we can return to our analysis of the law requiring workers to give a
month's notice before ceasing work. This would be ok if the work involved was a
davar ha'aved. It is probably also safe to assume that the law itself
would not apply in an extreme case, where it could be shown that the employer
incurred no loss at all. So is there in fact any difference between this law
and Torah law?[15]
The answer is
yes, there is a major difference. To my knowledge, secular law does not differentiate
between a loss and a missed opportunity to gain. If an employer stood to make a
sure profit and that is prevented by a worker not keeping to his word, how is that
'loss' in profit any different to someone whose possessions are being destroyed
while the person employed to protect them stands idly by?
The Torah does
make this difference, teaching us that there is no such thing as a 'sure profit'
that stands to be lost.[16]
Thus helping someone to secure a profit is not part of the obligation of hashavas
aveida. Irrevocably contracting to do this is indeed slavery of a form.
[1] Although technically halacha still allows the sale of non-Jewish
slaves, any government who tried to put this into practice would be guilty of a
major abuse of power. I have already written about this in Torah
versus international law, explaining that the Torah allowed slavery in
accordance with the times but never meant to encourage it.
[2] Hilchos Avadim 1:6. The Ra'avad argues that a servant can be made
to work for undefined lengths of time, but he also agrees that this is not the
case with a regular worker (a servant refers to an eved ivri, a concept
that today does not exist until we have the mitzvah of yovel).
[3] Ibid. 1:7.
[4] Bava Metzia 76b. Three main cases are discussed, the first is when
a worker or employer reneges on an agreement to work before even starting; the
second is when the workers travelled to work but found there was nothing to be
done. Here I will concentrate only on the last case, when work has already
commenced.
[5] For example, if workers contracted to earn 10,000 NIS per month for
a year terminated work in the middle of the year and replacement workers will
cost 11,000 NIS per month, the employer could deduct 6,000 NIS (1,000 NIS per
month) from the wages of the first workers.
[6] Ibid. 77a-b.
[7] Vayikra 25:55
[8] Bava Metzia 10a.
[9] Although obviously even a kablan cannot be forced to work,
and if he reneges the only consequences are financial and only if the employer
incurs a tangible extra cost.
[10] Furthermore, any conditional acceptance of a fine would be subject
to the rules of asmachta (discussed briefly in Hoda'as
ba'al din). Although there are usually ways to solve the asmachta
problem, if the fine is unreasonable it is far less straightforward (see Bava
Metsia 104b). As the gemara equates such an arrangement to slavery, it would
certainly seem to fall into the realm of the unreasonable. See also Shach, Choshen
Mishpat 333:14 and Pischei Choshen, Hilchos S'chirus, chapter 11, footnote 1.
[11] This topic is complicated and has not been done full justice here,
but I believe that the conclusion and rationale are correct.
[13] Mishna Bava Metzia 75b. For further details see the Beraisos on 76b
and 77a-b, commentaries thereon and Shulchan Aruch, Choshen Mishpat siman 333.
[14] A person who encounters a situation where another Jew desperately
needs help to prevent monetary loss is obligated to provide this help as part
of the mitzvah of hashavas aveida (returning a lost item). In the case
discussed in the Mishna, the workers were not originally obligated to agree to
do the work, as at the time there was no shortage of people happy for the job
opportunity. However, once they did agree to do it and it is too late to find
replacements, the situation reverts to a classic case of hashavas aveida.
Although one who neglects to do hashavas aveida is not normally liable
to pay a penalty, contracting to do so is certainly not a violation of the
injunction against slavery.
[15] If the only difference was over where the onus of proof of a loss
or lack of it lies, this would not present us with a problem. Obligating oneself
to accept the word of a fellow litigant is a concept widely accepted in
halacha, see for example Shulchan Aruch, Choshen Mishpat siman 71.
[16] R' Hirsch in his commentary on the Torah, Shemos 22:24, explains
the prohibition of charging interest along similar lines - Hashem did not want
a person's money to make automatic profit for him without doing any work. The
truth is that ideally even possessions that we already have should not be
viewed as eternal assets, as we live in a temporary world. However, this ideal
is on a level beyond what most humans can be expected to rise to. A similar halachic
difference exists on Chol HaMo'ed, when work is permitted to prevent a loss but
not to maintain a regular profit.
