Introduction
A question that has
arisen for many over the last few weeks is whether a person is supposed to pay
a worker for work that could not be done due to the current restrictions. I
have seen some surprising guidelines given even by learned people, and I
thought it would be beneficial to attempt to alleviate some inevitable
confusion.
I am not going
to deal with any obligations that may arise from employment law (these are not
dependent on the Torah[1])
or with what governments should be doing to support those whose incomes have
been hit. The sources I will quote are relevant mainly for self-employed contractors
and those who pay for their services.
One further
disclaimer is that no-one should use what I write here as a personal instruction.
Each person's circumstances are slightly different and if there is any dispute,
it is forbidden to issue a ruling without hearing both sides.[2]
The purpose of the post is to clarify the issues involved and to provide enough
information for people to make their own judgements as to what applies in their
situation.
When one
party should have known
The gemara deals
with a case of a person who hired workers to water his field using water from a
nearby river, only for the river to dry up in the middle of the day. The
halacha is dependent on whether this was a common occurrence or not; if it was
unusual then the workers lose out. If this was a common occurrence and the
workers were from out of town, the owner of the field must pay them. If they
were locals (and should have known), they lose out in any event.[3]
The rishonim
explain that the only case where the workers are paid despite not doing the
work is when the owner knew what the situation was and they did not.[4]
The logic is clear: as no work was done, the only thing that can obligate the
owner to pay is if the arrangement was unfair in the first place. If he misled
the workers into believing that the work could be done, he must take
responsibility for this. If no-one was at fault, or both sides were equally
aware of the risks involved, forcing the owner to pay is unjustified.[5]
Other cases beforehand
in the gemara are based on the same principle, although I have not quoted these
cases here as they involve other intricacies not relevant to our discussion.
The conclusion for us appears clear – as no-one could have foreseen the current
crisis, workers cannot demand payment for work that they could not do.[6]
Is a global
crisis different?
Another source may
strengthen the argument above. A Mishna deals with one who leases a field, with
the agreed payment being a certain amount of produce. If a countrywide plague
of locusts or blight affects the yield of the field, the lessee has the right
to deduct from the agreed amount accordingly.[7]
The gemara states that the same rule applies if damage was incurred as the
result of a major water source drying up.[8]
In this case too,
the one leasing the field is exempt from paying some of the rent due to the
fact that the field didn't "do its job." This is a far less obvious
halacha – the field is not a worker and the payment agreed was simply for the
right to use it. Although the right to use the field has not been compromised, as
the issue is countrywide the lessee is entitled to a deduction.
With this in
mind, a related ruling of the Maharam miRotenburg is surprising. He writes that
if the authorities forbade the teaching of Torah, affecting the entire area,
one who had previously hired a tutor for his son must bear the losses and pay
the tutor.[9]
If even a rent deduction is in order due to a countrywide affliction, surely
the same should apply to payment for work that couldn't be done?
This question is
raised by the Rema. He explains that the deduction in the case of the field
only applies to rental of land. A landowner is deemed somewhat responsible for
events effecting his land (even those occurring due to no fault of his own),
and thus must bear the ensuing losses.[10]
This only applies to issues with land.
This answer is
astonishing. If a person is responsible for events affecting his land, he
should certainly be responsible for events affecting his personal ability to
work! In the case of the tutor, it is hard to see any justification for taking
payment when the agreed work was not done, whether the work was prevented by a
local or national cause. The Vilna Ga'on indeed writes at relative length and
concedes that there is no adequate reconciliation for this ruling.[11]
Others struggle to
re-interpret the words of the Maharam miRotenburg. The Shach writes that in his
case, once the decree was rescinded, the student returned to study with the tutor
and the father did not make any mention of the missed time. As the issue was
not discussed, it is assumed that the father forgoes his right to a deduction
from the payment.[12]
The Aruch
HaShulchan explains that in the case of the tutor, the father has to pay
because the tutor is still inherently willing and able to teach. The fact that
the authorities prevent him from doing so is an external factor, which does not
affect the obligation to pay.[13]
This answer is
also difficult to understand – as in actuality the tutor could not agree to teach,
there should be no reason to pay him. In addition, even if the Aruch HaShulchan
is correct, this should not have any bearing on those unable to work due to the
coronavirus. I would hope that such people don't consider themselves able to
work "were it not for the (evil) decree of the government."
Conclusion
Those
unfortunate enough to be unable to work due to the circumstances we are all in now,
should not expect their customers to bear the loss. Those unable to pay for
services they are not receiving, should know that they are under no obligation
to do so.
Of course, those
with the financial ability to do so should consider whether it might be
appropriate to continue to support the incomes of those who provide them with a
regular service and are in a difficult situation currently.
May Hashem help
us all return to physical and economic health!
לברכה ולא לקללה!
לחיים ולא למוות!
לשובע ולא לרזון!
[2] See Rema, Choshen Mishpat 17:5.
[3] Bava Metsia 77a. The Rambam (Sechirus 9:6) translates the gemara
slightly differently, but the principle remains the same.
[4] See Rema, Choshen Mishpat 334:1.
[5] See Rosh (Bava Metsia 6:3) who invokes the rule of המוציא מחברו עליו הראיה (the burden of proof is on the claimant – see Burden
of Proof & Status Quo). It would appear however that in this case there
is no dispute over the facts of what happened and therefore no 'proof' is
relevant. The Rosh presumably did not mean that this rule is being applied in
its standard form, rather that when all is equal, we cannot expect one side to
pay the other for their losses.
[6] This of course assumes that any contract or prior agreement between
the two parties does not obligate payment in such circumstances. Any such
agreement will need to be studied to see what is covered, and whether the
agreement has halachic validity.
[7] Bava Metsia 105b.
[8] Ibid. 103b.
[9] Quoted by the Mordechai, Bava Metsia siman 343.
[10] Darkei Moshe, Choshen Mishpat 321. The ruling of the Maharam
miRotenburg is also quoted as halacha by the Rema on the Shulchan Aruch in the
same siman (se'if 1).
[11] Bi'ur HaGra ibid.
[12] Ibid.
[13] Choshen Mishpat 334:10
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