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Fellow Weekly - Issue 36

This Issue is lovingly dedicated by the grandchildren of

Moshe Yaakov ben Faige Devorah Burack

Please daven for his full and speedy recovery .

CASE 137: Granny's Apples

Grandma Bertha Smith of Toronto was beloved by all of her neighbors. Though her own grandchildren lived far from her Downsview home, Bertha treated all of the neighborhood kids as if they were her actual grandchildren. Grandma would bake granola cookies with them, read them books, teach them to knit, and most importantly, listen to them talk about their childish experiences. Grandma Smith was never too busy to lend a listening ear.

On Grandma’s front lawn grew a beautiful apple tree. Grandma would rock on her chair in its shade and watch the children play hide-and-seek around the tree. Autumn had arrived and the apples were ripe.

Sara dear, she called out to the ten-year-old girl with long braids reading under the tree. For every bag of apples you pick, Grandma will give you a quarter.

Sara was a great apple picker and knew the tree well. She climbed all the way up the tree and after twenty minutes, she managed to fill seven bags of apples.

“Sara, you did a fantastic job,” exclaimed Grandma. “Come inside and let me pay you before the day is done. Then we can begin peeling the apples for your favorite apple strudel.”

Grandma scurried over to her pocketbook, looked for seven quarters, but could not find enough change. She had only five quarters and a fifty-dollar bill.

What should Grandma Bertha do?

What is the Halacha?

[Submitted by Rabbi Avi Hess: Member, Fellow-Yesharim Research Center - Jerusalem, Israel]

LAST WEEK’S CASE

CASE 136: A Speaking Enragement!

Professor Manny Wright was the president of the New South Wales Board of Australian Legal professionals. Wright was a world-renowned speaker – a celebrity of sorts. His wit, charisma, practical wisdom and powerful oratory skills would hold his audience spellbound.

Wright was invited by Columbia University to address a crowd of six thousand students. Columbia offered him $15,000 for the event. Manny scheduled his speaking tour in New York City for the week of Jan 16th.

As is common with traveling speakers, Wright also agreed to a couple of smaller engagements while he was in town: He was to lecture the student body of the Steinberg Community College in Brooklyn on the subject of “Employer Wages: Ethics and Law” for a fee of $1,000 and a voluntary appearance at a fundraising event for the AFESU (American Further Education Society for the Underprivileged).

Professor Wright sent a message to the Community College directors requesting that he be paid in cash and added, “‘I am giving you an opportunity to fulfill the positive biblical commandment you should pay your worker on the day that he worked’ [Deuteronomy 24:15]. Please pay me immediately after my presentation.”

To his dismay, he received the following response from the Community College:

Regarding remuneration, we do not typically pay speakers immediately after their presentation. In fact, here in the US, one month for granting of honoraria is an excellent record of accomplishment at colleges and universities. We plan to pay you within that time. Unfortunately, a cash payment is not an option, as our accounting department requires that all speakers be paid by check. We are all anxiously looking forward to your lecture.

Sincerely,

Robin Banks, Ph.D.Dean

Steinberg Community College

Then, en route to Melbourne Airport for his flight to New York, Professor Wright received the following email on his Blackberry™:

We apologize for any inconvenience on your part. However, we regret to inform you that there are insufficient resources available to cover your appearance. At this point, we must cancel your engagement until further notice.

Sincerely,

Ripley Offerman

Assistant Comptroller

Columbia University

Wright’s stomach sank as he realized that the time and expenses he would incur to just deliver the two minor addresses would be a losing business proposition – his airfare alone would cost more than the Community College address.

Did Ms. Banks lose the opportunity to fulfill a mitzvah?

Does Columbia University have any financial responsibility towards Wright?

What is the law?

The Answer

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

The College did not transgress a negative prohibition, but hey did lose the opportunity to perform the mitzvah of paying a worker on the day that the job was performed. As she was merely the dean, it is conceivable that Ms. Banks herself was not the one responsible for the mitzvah to pay Professor Wright upon his completion of the job (see Detailed Explanation).

Columbia must reimburse Professor Wright for expected losses incurred (see Detailed Explanation for the list of losses which Columbia is liable for).

Detailed Explanation

Steinberg Community College

The responsibilities an employer or service beneficiary has vis-à-vis an employee or service provider can be divided into two categories. Category A is a result of the unique employer-employee relationship. Category B is a result of a general debtor-creditor relationship.

Category A

An Employer must fully compensate workers (or service providers [Ahavas Chessed 9:5]) with legal tender [Bava Metzia 118a] on the day of the job’s completion [Leviticus 19: 13, Deuteronomy 24:15] or the day of deliverance of goods (e.g. in the case a dry cleaner) [Choshen Mishpat 339:6].

An Employer or service beneficiary who delays “available” payment to an employee or service provider can conceivably transgress two negative prohibitions [Choshen Mishpat 339:2] and forfeit the opportunity of fulfilling a positive mitzvah [Choshen Mishpat 339:1].

An Employer is required to borrow money or sell merchandise to pay an employee on time [Ahavas Chessed 9:7].

The aforementioned prohibitions against “delayed payment” and positive mitzvah lie specifically on an employer who is responsible for both the hiring and payment of employees [Choshen Mishpat 339:7]. Alternatively, one vested with Power of Attorney would bears responsibility for this prohibition – even though the funds legally belong to a third party [Ahavas Chessed 10:4].

Category B

An Employer or service beneficiary who defaults on a debt indefinitely can transgress an additional three negative prohibitions: swindling another individual [Leviticus 19:13], robbing [ibid], and – when applicable – swindling a poor or destitute worker [Deuteronomy 24:14].

In addition, a general rabbinic prohibition dating back to King Solomon exists against intentional postponement of available payment of debts due [Ecclesiastes 3:28].

These four prohibitions apply to any employer and debtor, even one who was not directly accountable for hiring the worker (as is common with large establishments) [Choshen Mishpat 339:7].

Exceptions:

An employer who is known from the onset to have an “alternative payment plan/date”, as well as one whom the employee never expected to have available funds upon the work’s completion, does not transgress the negative prohibitions [but does forfeit the opportunity to execute the positive mitzvah] when delaying payment accordingly [Choshen Mishpat 339:9].

Nevertheless, an employer who fails to adhere to the understood “alternative payment date” or does not immediately pay when funds which were initially unavailable become accessible, risks transgressing the rabbinic prohibition of intentionally delaying available payments of debts due [Ecclesiastes 3:28; Choshen Mishpat 339:9].

While the employer always fulfills the positive commandment when paying immediately upon the work’s completion, he or she fulfills no positive commandment by paying on the “alternative payment date”.

Application:

The Community College had an “alternative payment plan”. Hence, the biblical prohibitions of delaying payment do not apply. However, the College forfeits the opportunity to fulfill the positive commandment when following their protocol. Additionally, the rabbinic prohibition remains in affect if the college does not pay within the accepted time.

In countries subscribing to the Old British Law (like Israel), canceling a check indiscriminately is prohibited. Hence, checks are always deemed legal tender (this explains the free transfer of third party checks). In countries subscribing to American Law, checks run a risk of being canceled. Consequently, a check holder can never be sure that a received check reflects the true cash value. A check is merely a vehicle to obtain cash. A good check is generally easily redeemable for cash when the banks are open. Steinberg Community College was an American institution. As the mitzvah is for the employer to deliver legal tender to the employee, the check would conceivably have to be delivered at a time when the banks are open in order to fulfill the mitzvah. However, in a society where it is customary for such a worker to be paid by check, one will not transgress any of the above prohibitions and will similarly fulfill the positive commandment to pay workers on time. [Mishpetei Hapoalim].

However, Robin was the Dean, not the comptroller. While she may have hired Manny, she is not financially responsible for payment. Hence, she was always absolved from this mitzvah. Similarly, no biblical responsibility for on-time payment lies on the comptroller (who has Power of Attorney on the institution’s funds) as he or she never directly hired Manny.

Note: Institutions vary in terms of their financial organization. Indeed, some deans may be financially responsible for employee payment. In such a situation, the dean would in fact be liable for the laws mentioned in Category A].

Nonetheless, the Comptroller remains responsible for the laws mentioned in Category B (theft and swindling), should the institution default completely on the payment. Similarly, tarrying beyond the date of the accepted “alternative payment plan” would hold the comptroller liable for the rabbinic prohibition of intentionally delaying available payment.

Columbia University

An employer who cancels on an employee can incur the following financial responsibilities:

• If the employee turned down alternative work and can no longer attain them, the employer must compensate for employee’s losses. [Choshen Mishpat 333:2] (see Issue 30).

• If the employee subsequently finds another job at a lower rate, the initial employer pays the difference between the employee’s expected wages and actual wages received. [ibid]

• If the employee already began working, even if they did not forfeit alternative work, the employer must fulfill his side of the deal and “provide work and its compensation for the employee”. Even setting out to the job site can be considered the beginning of work. [Choshen Mishpat 333:1]

We can establish the exact amount of liability by determining how much the employee would honestly be willing to take for not having to actually work [ibid; Radva"z Vol. II, Responsa 793]. This is subjective to 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.

The employer must cover any expenses the employee responsibly incurred because of relying on his employer, even those incurred before actually beginning the job [Choshen Mishpat 14:5, Ram"a].

Application:

Professor Wright incurred losses by relying on Columbia University’s commitment. Thus, Columbia is responsible to pay Wright for any financial loss incurred due to the booking and cancellation of his ticket and travel arrangements.

If Wright can find an alternative appearance for $15,000, Columbia need not pay him. If he turned down an offer as a result of Columbia’s commitment and now cannot find another engagement, Columbia must reimburse him for the losses they caused to him. Additionally, even if he did not turn down another offer, he technically had already begun working for Columbia. His traveling to the airport for his appearance is considered the “beginning of the job”. Columbia in turn accepts responsibility to compensate him as promised (provided he does not cancel and an unforeseen occurrence does not transpire) [Choshen Mishpat 333:5].

There is valid reason to assume that, as a celebrity, Professor Wright would have preferred to work than to remain idle. Celebrities enjoy the stage and each appearance is an advertisement for them. Hence, in a case when Columbia would be liable, they would have to pay Wright close to the full $15,000 if not the entire amount.

[Answered by 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 the first phase of "Unsolicited Work".

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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