Dear Readers:

We are happy to share with you Issue 30 of the “Fellow Weekly Newsletter,” an interactive project of the Fellow-Yesharim Foundation for Ethical Law, under the leadership of HaRav Yitzchak Berkovits. Designed to stimulate discussion and thought regarding matters of business law and ethics, the Newsletter presents real-life scenarios, for contemplation and debate. Hundreds of Shabbos Tables already benefit from these exciting conversations. “Fellow Weekly Newsletter”, as well as Fellow - Yesharim’s ongoing international educational ventures enjoy the endorsements of HaRav Yitzchak Berkovits, Rabbi Joseph Elias, Rabbi Menachem Nissel and Ben Brafman, Esq.

CASE 131

The sudden weather changes took a heavy toll on Jerry. He caught a bad case of the flu and was bedridden. His appetite was poor, and he had been subsisting on rice cakes and Sprite for about a week.

Jerry's friend Kevin came to pay him a visit, and see if there was anything he could do for his dear friend.

“Kevin,” asked Jerry, “would you mind going to Shoppers Express and picking me up a case of Sprite? I know that you are really busy, but I'll even pay you five dollars for your service.”

“Sure Jerry," replied Kevin, "I have no problem going a little out of my way and I'll be glad to pick a case up for you. I'll be back shortly.”

Twenty minutes later Kevin returns empty handed. “Jerry, I'm sorry but Shoppers Express was out of Sprite.”

Jerry reaches into his pocket to pay Kevin for his services.

Kevin stopped him, “Jerry, please don't pay me. First, I did not deliver the goods. More importantly, I came to see what I could do for you. I did not intend to charge you."

Jerry persisted, “You deserve payment for going back and forth to the store, irrespective of whether Shoppers Express had the soda in stock.”

Kevin was indeed a nice person. He fulfilled the mitzvah of caring for the ill [Bava Metzia 30b].

Theoretically, had Kevin wished to be paid for his service, would Jerry have been responsible to pay Kevin regardless of whether Kevin succeeded in procuring the soda?

If so, would Kevin deserve the full five dollars?

What is the law?

Please email us with your comments and answers at weekly@projectfellow.org.
Read next week's issue for the answer!

LAST WEEK'S CASE

CASE 130: The Baffled Babysitter - Part 3: Sara's Hanukka Experience

The Hanukkah party that fifteen-year-old Sara threw for her Music Club was a real hit. Sara came home on a high, humming her favorite Hanukkah tunes. She went upstairs to her room, sat down at her desk and checked her phone messages.

“Wow! It seems as though I can earn some extra cash today!” she exclaimed. “I have a choice of four babysitting jobs tonight. I have a special liking to those Berman kids. I think I will choose the Bermans tonight. Besides, the Bermans are offering a four-hour job tonight! At eight dollars an hour, that is $32!”

The Bermans had a busy schedule that evening. Mr. Berman had a board meeting to attend and there was no knowing what time he would come back home. Mrs. Berman was putting the final touches on her community-wide Hanukkah extravaganza. She scheduled an important meeting with the program director, Mrs. Field.

Sara arrived after bath time, at six-thirty in the evening. Mrs. Berman told Sara that her meeting was scheduled to end at ten and that she would be home by ten-thirty. Mrs. Berman wished her good luck and left for the night.

That evening was uneventful. The kids went to sleep without a problem and Sara had time to review her music lessons.

At 7:45, there was a knock on the door – Mrs. Berman had returned much earlier than expected.

“Sara dear, I'm sorry that I am home already. Mrs. Field called me after I arrived at the Center and said that her children had fallen ill. She had to postpone the meeting until tomorrow morning.”

Mrs. Berman handed Sara ten dollars for the time that she had babysat.

“Mrs. Berman,” said Sara, “I feel bad for the Field children. However, do you understand that I turned down three three-hour babysitting opportunities tonight - in order to care for your children? By now it is too late for me to find other work and I missed out on making some decent money tonight. I would appreciate if you would pay me the thirty-two dollars that I was expecting for tonight.

Must Mrs. Berman compensate Sara for her lost wages that evening?

What is the law?

The Answer

We present you here with a concise ruling. For those interested in a more intricate elucidation, please see the “detailed explanation” below.

Mrs. Berman is responsible to pay Sara for four hours of work.

Detailed Explanation

Consider the following case of A hiring B for the day to water his field:

• If A canceled the engagement after B can no longer find replacement work, A is liable to pay B for the day's work [Choshen Mishpat 333:2].
• If a river overflowed unexpectedly precluding the need for B's work, A is absolved from paying B [Choshen Mishpat 334:1].
• However, if A had reason to anticipate the river flooding while B remained clueless of the river's nature, A is liable to pay B for the day's work – providing that B can no longer find replacement work [Bava Metzia 76a; Choshen Mishpat 333:2].
• We establish the exact amount of liability by determining how much B would honestly be willing to take for not having to actually work [ibid; Radva"z Vol. II, Responsa 793].

In other words:

1. If an unforeseen circumstance which renders a job unnecessary occurs, an employer may cancel or terminate the work agreement, without liability.
2. Similarly, if both the employer and employee had reason to anticipate a particular circumstance which would render the job unnecessary, the employer may cancel the agreement without liability.
3. An employer's liability to pay for work the employee did not perform due to unforeseen circumstances is limited to when the employer alone had reason to suspect that the need for the job may be averted.
4. The degree of liability (i.e. the amount the specific worker would honestly agree to take in order not to have to work) is subjective to both the nature of the job, the worker, and the worker's financial situation. For example, some workers would agree to take less money if it meant not having to work, while others would rather work hard and receive their full pay.

At face value, one might suggest that our case with Sara is comparable to the above. Assuming that Mrs. Berman had no reason to suspect that Mrs. Field's children would fall ill, she should be able to terminate Sara's job without liability.

However after closer scrutiny, a distinction can be observed:

When the river overflowed, the field could no longer benefit from B's work, as there was no longer a need for B's service. As the employer could not foresee such an occurrence more so than the employee, the employer is not liable to pay for work he did not receive.

In our case, however, the unexpected postponement of Mrs. Berman's meeting does not directly create a situation where Sara can no longer provide her service. Mrs. Berman hired Sara to babysit for four hours. Sara can still provide her service regardless of whether the meeting took place. Mrs. Berman could theoretically use the remaining time to run errands instead of sitting with Mrs. Field. The unexpected cancellation was not the only factor in the termination of Sara's employment. Mrs. Berman consciously chose not to use the time for other ventures, but instead, to terminate Sara's employment. As Sara could no longer find replacement work, Mrs. Berman must compensate her for the four hours.

As the children were sleeping by 7:15, Sara's work until 10:30 would not have called for too much effort. There is therefore no reason to assume that Sara would have accepted any less than her full eight dollars per hour in exchange for not having to work. Consequently, Mrs. Berman would have to compensate Sara her full $32.

Of course, Mrs. Berman can indemnify herself against this loss if she would spell out very clearly from the onset that the four-hour working engagement is contingent on the meeting taking place.

Similarly, if the accepted practice in their community was in Mrs. Berman's favor, then we would follow the local custom [Choshen Mishpat 331].

[Answered by Rabbi Eli Marberger - Lecturer, Fellow-Yesharim Research Center, Jerusalem]

Comments or questions? Have a case to submit? Please send us an email at weekly@projectfellow.org.