Can You Be Paid for What You Did Not Do?
In honor of Yaakov Avinu’s contractual dealings with his father-in-law, I present:
Can you be paid for what you did not do?
From the halachic literature:
Case #I: The Scheming Seamstress
Rivka hired a seamstress, Mrs. Chait, to sew a custom-made gown for her daughter’s wedding. Then, Mrs. Chait realized that she had too many orders and asked a second seamstress, Mrs. Snyder, to make the gown. Although Mrs. Snyder requested a lower fee, Mrs. Chait charged Rivka her higher price, intending to pay Mrs. Snyder the lower wage and keep the difference. Rivka feels she should not pay Mrs. Chait anything, since Mrs. Chait did no work, and that she (Rivka) only needs to pay what Mrs. Snyder charged. Mrs. Snyder would like to receive the full wage Rivka was planning to pay Mrs. Chait. What is the halacha?
Case #II: The Congregations and the Cantors
Congregation Ohavei Kol engaged the renowned Chazzan Shatz to daven Musaf for Yomim Norayim. Subsequently, Congregation Shachein Tov hired him to daven Shacharis at their shul. The chazzan contended that davening Shacharis at Shachein Tov would not have a negative effect on his Musaf at Ohavei Kol. However, after Rosh HaShanah, Ohavei Kol contended that the Chazzan’s Musaf was less melodious than they were expecting, since he was tired from Shacharis, and that he must decline the Shacharis job for Yom Kippur. Chazzan Shatz agreed, in order to not jeopardize his wages from the better-paying Musaf job. However, Shachein Tov was dissatisfied with the last- minute substitute they arranged for Shacharis in their shul on Yom Kippur.
After the High Holidays, the two congregations and the two cantors began some unholy negotiations. Chazzan Shatz contended that both congregations should pay him the agreed amounts, less what the substitute bal Shacharis received. Congregation Ohavei Kol deducted substantially from the chazan’s pay, claiming that they received an inferior Rosh HaShanah Musaf than what they had originally negotiated. Shachein Tov claimed that they should not pay the chazzan anything since he did not fulfill his contract with them, and furthermore, his backing out caused them to have an unsatisfactory Yom Kippur davening. How would you rule if you were the dayan?
Case #III: Is the Gelt Glatt?
The Rav HaMachshir of Glatt Kosher Inc. contacted one of his regular mashgichim, Rabbi Gold, to oversee a special production. With Glatt’s knowledge, Rabbi Gold hired a substitute, Monish Key, to oversee the production. Rabbi Gold subsequently charged Glatt his standard fee, and then paid Mon Key peanuts. Glatt claims that this was not glatt and that Rabbi Gold is not entitled to any more than what Monish received.
All three of these actual cases entail the issue of whether one person can collect wages for work performed by another. As we will see, the exact rules governing these halachos are very subtle and sometimes disputed, and a small variation in circumstances can change the halacha. But first we need to analyze the Gemara involved.
The Gemara (Bava Metzia 76a) discusses the following circumstance: A businessman instructed his supervisor to hire day laborers at the rate of three dinarim a day. The supervisor subsequently discovered that the market rate for laborers was more than three dinarim, but he was unable to contact the owner for approval to pay more. The supervisor therefore promised the laborers that he personally guaranteed that they would receive four dinarim. The Gemara concludes that since the supervisor guaranteed the laborers’ wages, he must pay them four dinarim; he then collects from the owner “as much as the owner benefited,” an ambiguous term which then becomes subject of a dispute among the Rishonim. Shulchan Aruch (Choshen Mishpat 332:1) concludes that it means whatever the owner was willing to pay; in his opinion the owner compensates the supervisor only three dinarim per worker, and the supervisor absorbs the difference. However, most poskim rule that “as much as the owner benefited” means the market rate for laborers, since this is what the owner would have been forced to pay, had he hired the workers himself.
The question, now, is what happens if the market rate for laborers is five dinarim per day, and the supervisor convinced them to work for only four? Does the supervisor receive five dinarim per day per laborer, since this is what the owner benefited, or does he receive only four, which was his actual out-of-pocket cost? The Rama concludes that the supervisor receives only what he paid, and no more. Although the owner technically benefited five because of the supervisor’s adept negotiating, the supervisor cannot claim greater compensation than his actual cost (Tur ad loc. quoting Ramah). Thus we see that although the owner should be obligated to pay the supervisor according to the usual value of market labor, which is five, he is not required to pay more than the supervisor actually spent. Thus, the supervisor cannot make a profit by marking up labor for work he did not perform.
At this point, we can now follow the footsteps of the poskim and analyze our first case. Remember our seamstress? Mrs. Chait, the first seamstress, passed work on to Mrs. Snyder, who charged less than Mrs. Chait’s original quote. Mrs. Chait felt that she was entitled to the difference. The client wants to pay the lower fee. Mrs. Snyder, who now discovers that the client was prepared to pay more for the gown, would like to collect the higher fee. Would you like to be the dayan and tell us what to do?
Over hundred years ago, the great Hungarian gadol and posek Rav Meir Arik zt’l discussed this exact case. Rav Arik reasoned that just as the owner reimburses the supervisor only as much as the laborers received, similarly Rivka pays the second seamstress her price and the first seamstress receives no compensation for making the arrangements (Minchas Pitim, Choshen Mishpat Chapter 332, quoted by Pischei Choshen, Sechirus 8:29).
I later discovered that Rav Arik’s ruling is based on an earlier responsum authored by the Mabit (Shu’t Mabit 3:23), who was a Rav in Yerushalayim in the Sixteenth Century. However, there are some significant differences in the Mabit’s original case:
Reuven supplied Shimon with material to weave a garment. Unbeknown to Reuven, Shimon contracted Levi to weave the garment for a lower price and sent Levi the material. Reuven subsequently claims that more material was used than should have been, and he has concerns about Levi’s honesty. He also wants to pay Levi’s lower fee and not Shimon’s higher one. In this case, Shimon violated the trust agreement because Reuven never allowed Shimon to entrust the material to anyone else. This is a halachic violation of the laws of shomrim for which Shimon is liable — if I am entrusted with someone’s property, I may not give the item to someone else to watch in my place. Therefore, Shimon is liable for any losses and damages that might ensue, should the material be lost or stolen. The Mabit also rules that in addition to Shimon’s liability for breach of trust, Reuven is required to pay only the lower wage, since the higher wage is contingent on Shimon performing the work. Reuven is not required to pay the same price to someone else, nor to Shimon, if someone else performed the work. The first tailor is not entitled to any payment for someone else’s labor, as we see from the previously quoted Gemara.
CONTRACTING OUT WORK
In our original case, could Mrs. Chait have simply contracted out the work, and presented it to Rivka without telling her who made it, or how much it cost?
I believe that if Rivka had not supplied the material, then Mrs. Chait could have subcontracted the work, provided she assumes responsibility for the finished product. When I order a garment, my concern is to receive what I ordered and it makes no difference to me who actually produced the garment. Thus, Mrs. Chait could have subcontracted the garment to Mrs. Snyder, and maintained control of her dealing with Rivka. Of course, if she had done this, she would also have been responsible for the finished garment, and would have been responsible for adjustments and alterations to the gown.
A BUILDING CONTRACTOR
Let me explain the difference between subcontracting and Rav Arik’s case with the following common example. When you hire a contractor to perform major renovation work, he usually subcontracts much of the work to other artisans, such as electricians or plumbers. Does your contractor charge you the same price that his subcontractors charge him? Of course not; he marks up the price. How can he mark up his charges when we just said that the supervisor of the Gemara is not entitled to charge extra for the costs of the laborers?
The difference is whether the contractor is still responsible for the work of the subcontractor. In the Gemara’s case, the supervisor is not responsible to repair inferior work performed by the laborers. Similarly, I believe that in Rav Arik’s case, once the second seamstress took over the job, the first seamstress was no longer involved. If the client is unhappy with the job, she will ask Mrs. Snyder to fix it, but has no recourse against Mrs. Chait.
However, if the customer is dissatisfied with the work of a subcontractor, who is responsible to make sure that it is repaired? The contractor. Therefore, the contractor may charge for his involvement and responsibility and mark up the subcontractor’s charges. In essence, the subcontractor is not working for you: he is working for the contractor. In the case of the Gemara, although the supervisor guaranteed the wages, the laborers were working for the business owner, not for the supervisor.
Therefore, if Mrs. Chait is still responsible for the quality of the finished product, she may charge for that part of the responsibility. She may assume total responsibility for the finished product and merely use Mrs. Snyder as her subcontractor. Clearly Rav Arik was not discussing such a case.
A FINDER’S FEE
Could the first seamstress have requested a finder’s fee?
The Gemara (Bava Metzia 63b) mentions the responsibility to pay a broker’s fee to the person who arranges the sale of property or merchandise (Shulchan Aruch, Choshen Mishpat 185:1; Rama 87:39). This is a standard business practice, similar to paying a commission to a stockbroker, real estate agent, or personnel recruiter (sometimes called a “headhunter”). As a matter of fact, this is also the halachic source for paying shadchanus gelt; one pays a shadchan for making the arrangements necessary for the engagement and marriage to transpire. If this is true, why could the first seamstress not have requested a shadchanus fee for arranging that the second seamstress make the gown for the client? In this instance, Mrs. Chait should be entitled to a finder’s fee for referring the business to Mrs. Snyder, yet Rav Arik does not mention this fact. Why not?
I do not know why he does not discuss this possibility, but I would suggest the following: Shadchanus gelt and finder’s fees are chargeable only when they are standard practice. If a certain type of transaction does not usually involve a finder’s fee, one cannot charge it. For this reason, one cannot charge a finder’s fee for referring a visitor to a neighborhood grocery store: although purchasing groceries is a transaction, one does not usually charge for the service of informing a person where to buy a bottle of milk. Similarly, it is not standard practice to charge for referring a person to a tailor or seamstress for the production of a single garment; therefore, it does not warrant a finder’s fee.
THE CONGREGATIONS AND THE CANTORS
We can now examine the legal issues involved in the din Torah mentioned above, where the chazzan booked two different shullen for Yomim Norayim, one for Shacharis and the other for Musaf, and incurred the wrath of both congregations. An actual din Torah ensued in 1896 in Brayulav, Moldavia under very similar circumstances. The shaylah was more interesting because the chazzan involved was the community shocheit, and some members of his community wanted to disqualify him as a shocheit due to the moral turpitude displayed by not keeping his word. (Can you imagine what they would think about our contemporary politicians?) The shocheit–chazzan contended that both congregations should pay him as agreed, minus the expense of hiring the additional bal Shacharis for Yom Kippur. Congregation Shachein Tov felt that since he had left them without a chazzan of choice for Yom Kippur, they owed him nothing. The local rav, Rav Shelomoh Mehr, who was asked to rule on the case, referred it to the posek hador, the Maharsham of Brezin, Galicia, for final judgment.
Does Shachein Tov’s claim that the shocheit–chazzan is entitled to no financial compensation have validity? The shul claims that the shocheit–chazzan’s breach of contract caused them irreparable damage. Both Rav Shelomoh Mehr and the Maharsham concur that the shul did not suffer irreparable damage by the substitution of a mediocre chazzan. Thus, the agreed amount should be prorated based on a calculation as to how much of the fee was for Rosh HaShanah and how much for Yom Kippur, and the chazzan receives compensation appropriate for the Rosh HaShanah davening. Since the substitute chazzan received less for Yom Kippur than the shocheit–chazzan would have earned, the shul saved some money as a result. On the other hand, the chazzan’s claim that the shul should simply subtract the substitute’s wage from his fee is inappropriate. Since this would result in his receiving more than the prorated amount for Rosh HaShanah, it would in essence pay the chazzan some compensation for the Yom Kippur davening that he did not perform. Therefore, the difference between what the first chazzan was supposed to receive and what the second chazzan actually did receive reverts back to the shul.
Regarding whether the chazzan–shocheit is disqualified in the future as a shocheit for exhibiting moral turpitude, the Maharsham ruled him qualified to continue in his profession as shocheit. Maharsham agreed, in principle, that someone who breaks his word in financial matters has seriously compromised his integrity and is considered mechusar amanah which halachically makes him a rosho, an evil person. The Maharsham implies that this offence is serious enough to warrant dismissal of a shocheit.
However in this case, the shocheit was not mechusar amanah in failing to abide by his agreement, but rather, he overextended himself in a way that he thought he could honor both commitments. Indeed, even if we assume that he could not honor his commitments, his violation was one of negligence, not intent. The chazzan–shocheit truly believed that his double commitments were not in conflict with one another, and that he could accomplish both. Furthermore, had he realized that Congregation Ohavei Kol would fire him for davening Shacharis at Shachein Tov, he would never have agreed to daven at Shachein Tov. Therefore, he is considered someone who placed himself negligently in a circumstance where he was forced to forgo one of his agreements. This constitutes sloppy or careless behavior in business dealings, which, although reprehensible, demonstrates bad judgment, not moral turpitude. Bad judgment about one’s financial matters does not disqualify a shocheit or anyone else for that matter.
The Maharsham does not discuss directly how much Congregation Ohavei Kol must pay the chazzan. He implies that Rav Mehr had ruled that they must pay the chazzan in full, and that neither rav accepted the shul’s claim that he had underperformed in his vocal commitments to them, since he had indeed davened all the tefillos contracted.
THE CASE OF THE GLATT GELT
We can now examine the last of the three original shaylos, that of the Glatt Gelt.
The Rav HaMachshir of Glatt Kosher Inc. had hired Rabbi Gold to be his mashgiach, and knew that Rabbi Gold was making a substitution. If Glatt is dealing directly only with the substitute, then this case is parallel to the Gemara’s case of the supervisor and Rav Arik’s case of the seamstress; thus, Rabbi Gold would receive no additional compensation, unless this entitles him to a finder’s fee. However, if Rabbi Gold is still responsible to make sure that someone oversees the production, or he is responsible to train the mashgiach, then he is entitled to compensation for this work. If he chooses to charge Glatt and in turn pay Monish Key, he could argue that Mr. Key is really his employee and not Glatt’s. For example, if the substitute will contact Rabbi Gold if he has a problem, or if some other complication would still involve Rabbi Gold’s responsibility, then Rabbi Gold can claim that he is still in the hire of Glatt Foods, and Mr. Key is his subcontractor. Similarly, if Rabbi Gold is training or instructing Mr. Key for the job, then he may charge for this service.
However, this is permitted only if Glatt Kosher Inc. agrees to allow Rabbi Gold to arrange his own substitute. Otherwise, Glatt Kosher Inc., would assume that Rabbi Gold, their crackerjack field supervisor, is doing all the work himself. It is unacceptable and a serious breach of faith on the part of the field supervisor if he is not the one providing the service for which he is charging and instead arranging a substitute unbeknownst to the hechsher. This is indeed similar to the Mabit’s ruling, cited earlier, that it is deceptive to substitute an artisan without the knowledge of the customer. Although the cases are not 100% parallel, it is certainly true that in kashrus supervision the religiosity, practical expertise, and halachic knowledge of the field supervisor are major factors influencing the quality of work performed. Therefore, the supervisor has no right to arrange substitution without the foreknowledge of the hechsher.
A Torah Jew observes his contractual commitments with trust and faith. He certainly realizes that Hashem’s Torah is all-encompassing and directs every aspect of his life, certainly the details of his livelihood and his financial dealings.
*all names have been changed