Thursday 9 April 2020

Work that can't be done


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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