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CASE 132: The Kugel Controversy

Joey and Jacky were great friends. They boarded together in a small high school nestled between the towering snowcapped Colorado Rockies. On Friday afternoons, the boys would often order special Shabbat treats from the nearby town. One week, Joey ordered a twenty-dollar tray of potato kugel from Dave's Delicatessen.

When Jacky heard that Joey had ordered an entire tray of kugel – twenty slices in all – he offered to give Joey ten dollars for half of the tray. Joey agreed.

Joey's friend Harvey was going into town that Friday to visit with an elderly gentleman in the nursing home and offered to pick up the kugel for the two boys. However, when he returned, Joey was surprised at the size of the package. It had his name on it, but upon opening it, he discovered that it contained forty pieces – double what they had paid for.

Joey, being honest, immediately called the delicatessen and informed them of the error.

“It was our mistake,” the manager told him over the phone. “Keep it. The loss is on us!”

With that, Joey brought the tray to Jacky's room, and gave him his ten pieces.

Jacky glanced back at the remaining thirty pieces in Joey's tray. “Hey Joey, why do you get thirty pieces, while I only got ten? I paid ten dollars for half a kugel!”

Joey responded, “Jacky, you paid ten dollars for ten pieces. I got lucky and received an extra twenty pieces. That has nothing to do with you.”

- How many pieces do Jacky and Joey deserve, respectively?

- Is Harvey owed a share of the bonus?

What is the law?

[Submitted by Rabbi M. Marcus and the students of the Bell Harbor Yeshiva, NY]

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 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.”

LAST WEEK'S CASE

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?

The Answer

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

Jerry would be responsible to pay Kevin less than five dollars.

Detailed Explanation

Consider the following three laws:

1. A person hired several individuals to bring in grain from his field, but when they arrived at the field, there was no grain to be found. Alternatively, workers were employed to dig a canal through the field, but upon showing up, they found the field waterlogged and unfit for work.
1. If the employer could not have foreseen the mishap, he is not liable. [Choshen Mishpat 333:2]
2. If the employer should have foreseen the mishap and the employees could not have foreseen it, the employer pays the employee. However, as the employee did not actually perform the work, he receives only the amount he would have agreed to take for a paid vacation. [ibid]
2. A hired B to accompany C along a journey. Midway through the journey, C suddenly dies. A pays B in full. [Sha"ch 335:2]
3. A hired B to bring him a small parcel from point C. B went to C and did not find the parcel. A pays B in full because B fulfilled his service. [Choshen Mishpat 333:2]

An obvious question arises: Why do the workers in cases II and III receive full payment even in light of an unforeseen mishap; while the workers in case I only receive a) limited wages and b) only when the employer is at fault?

The answer is that in both case II and case III, the traveling back and forth was a part of the job description. While, of course, the purpose of the employment was to accompany C and/or retrieve a parcel, these two objectives were in fact the insignificant portion of the overall activity involved in the task. The primary activity in the job description was the traveling, and it was for the traveling time that the employer was paying the employee. As the worker troubled himself and fulfilled almost the entire job description, his unforeseen inability to “produce” should not adversely affect his pay in full.

In case I, however, the traveling was not a part of the job description. The worker came to the jobsite and found no work, and therefore did not “produce”. We cannot obligate an employer to pay for work an employee did not perform, unless the employer is to blame for irresponsibly directing his worker to perform unavailable work. Even in a situation where the employer is to blame for such irresponsibility, his liability would be limited if the worker would prefer accepting less money in exchange for a paid vacation. [Nesivos Hamishpat 333:5]

Application

Jerry asked Kevin to go to the store, pick up a case of soda, and bring it back. While it is debatable, let us assume that going to the store was a part of Kevin's job description, especially because of Jerry's condition. To that end our case is similar to cases II and III and he should receive full payment. However, carrying a case of soda could conceivably be considered a strain. It is not necessarily a “small parcel”. To this end, our case is similar to case I. Kevin was hired to carry a heavy load and did not fulfill that task.

Thus, our case is similar to cases II and III in that the traveling was an integral part of the job description. Yet, it is equally similar to case I, where a significant degree of the requested bother was not performed. Accordingly, we would evaluate the percentage of his wages due for the bother of traveling and the percentage of his wages due for carrying the case. We would pay him for his “traveling time” but withhold the percentage due for carrying the soda case.

[Answered by Rabbi Yitzchak Bohem and the Fellow-Yesharim Research Center]

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

The Fellow-Yesharim Research Center, located in the heart of Jerusalem is presently studying its eighth phase of employer / employee breach of contract (Bava Metzia 75b-77b).

Note:

Although we aim to present the correct ruling, varying details are always important and decisively influence every individual case. Our readers are thus encouraged to present their personal cases to a competent authority and not solely rely on the information provided.

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