Siman 332

If he said to his agent, "Go and hire workers for me for three dinars," and the agent went and hired them for four: if the agent said to them, "Your wage is upon me," he gives them four, and he takes three from the employer and loses one from his own pocket, for he caused the loss to himself. This is the opinion of the Rif in the sixth chapter of Bava Metzia and the Rambam in the ninth chapter of Hilkhot Sekhirut. And some say that if all workers are only hired for four, the employer gives the agent four according to the benefit he received; thus wrote our teacher, the Beit Yosef. And some disagree and hold that even the Rif and the Rambam hold this way, and that which they wrote—that he takes three from the employer—is when there are workers who are hired for three. And they brought proof from that which will be explained, that if he said to them, "Your wage is upon the employer," he gives them four if everyone is hired for four; and also from that which will be explained in siman 333, that one who hires a worker to work on his own property and showed him his fellow's property, he gives him according to the benefit he received. And it appears to me like the words of our teacher, the Beit Yosef, that it is not similar to if he said, "Your wage is upon the employer," for there it is a different reason, as the Rif, of blessed memory, wrote there: that since he deviated from his agency and said to them, "Your wage is upon the employer," the agency is completely nullified, and their law is close to those who act with permission, who take what it is worth, for they have no claim to sue the agent since he said, "Your wage is upon the employer." And likewise in siman 336, when the employer did not command at all, their law is like one who descends [to a field] without permission, which will be explained in siman 375. But in this case, where he said, "Your wage is upon me," they take from the agent and have no business with the employer; and as for the agent, how can he take from the employer more than what he commanded him? For it appears that even regarding one who descends without permission who must be paid, it is only without permission where he did not command him, but if he explicitly commanded him, "I do not wish for you to act for me, and if you act I will not pay you," if he acted, he has placed his money on the horn of a deer and he [the owner] takes the work that he did. And here too it is so, since he said to him that he does not wish to hire for more than three. And it appears to me that it is a legal doubt.

And if he said to them, "Your wage is upon the homeowner," the agency is completely voided, and he gives to them according to the custom of the province; for if everyone is hired for four, he gives them four, and this is superior to one who descends to a field without permission, for he commanded to hire. But if there are those who are hired for three and those for four, he only gives them three, for since the agency is voided, their law regarding the transaction is like those who act on their own, and the hand of the recipient is at the bottom. And even if the laborer was a distinguished man who would not have been hired for three, nevertheless he cannot extract more from the homeowner, only that they have a grievance against the agent who lied to them, for had he told them the truth, they would have searched for another place where they would have been given four. Therefore, if all laborers are not hired for more than three, they do not even have a grievance, unless he is a distinguished man as has been written. And if he hired them without specification, and the laborers do not know that the work is not his, his law is like one who says, "Your wage is upon me" [Shach].

And that which we said, that when others are hired for three they only take three, this is when their work is not recognizable after the work is completed, such as if he hired them to dig and it filled with water, for they cannot now stand upon the work. But if the work is recognizable and they see that it is worth four compared to other workers who perform such tasks, he gives them four even when everyone else is hired for three [ibid.], since in truth it is worth more. And even though if the employer himself had hired them for three they would not take more even in such a case, nevertheless, regarding this case of the agent, they can say that were it not for them, they would not have troubled themselves to do so and would have acted like all other workers. And even though the employer should not have to suffer because the agent acted falsely, nevertheless, the agency was at any rate voided and they are like those acting on their own, and behold they performed work for him that is worth four. And it appears that in such a case, even where he said "your wage is upon me," the agent takes four from the employer. For granted that he told him to hire for three, that is when they acted like all other workers; but when they did what is worth more than other workers, even according to the first opinion in section 1, he takes four, for behold it did not enter the mind of the employer that they would do what is worth more than other workers. And even though we explained that even if everyone is hired for four, they nevertheless only take three, that is because he did not command him initially except for this price even though he knew it was worth more, and he should not have hired them; but in this case, where he knew that all workers act thus and imagined that they too would act thus, and they did more, he must pay more.

If the employer said to him, "Hire for me for four gold pieces," and the messenger went and hired for three, there is no difference between whether he said, "Your wage is upon me," or whether he said, "Upon the employer," and they have only three. This is even if their work is worth four compared to other workers. Furthermore, even if everyone is hired for four, for they accepted it upon themselves, just as an employer when he hires at a cheap price—even if they did the work better than other workers—they cannot take an addition, for who requested this of them? And they understood and accepted. So too when the messenger hired them, except that they have a grievance against the messenger, for why should he have withheld good from them? For it is written, "Do not withhold good," etc. And the employer does not need to give the dinar to the messenger [Shach]. And if he hired them without specifying a price, and their work is worth four compared to other workers, he gives them four [ibid.], for even if the employer had said nothing to him, since it is worth four, he gives four, and certainly when he said it to him. And it is obvious that if everyone is hired for four, he gives them four. And if the employer said to him "for three" and he hired them without specifying, and workers are hired for three, even if they did work worth four, they only take three; for since there are workers who are hired for three, they should have specified [ibid.], for he did not hire them to do better for him than other workers, since the agency was not nullified.

If the employer said to him to hire for three dinarin and the messenger went and said to them for four, and the laborers said, "Behold, we are hired as the employer said," their intention is not that if the employer said for less we are hired for less than four, for why would they do so? Rather, their intention is: "You are believed by us that so the employer said, and likewise if the employer said to you more than four, he shall give us more" [Tosafot]. And this law is like what I wrote in section 1 when the employer said for three and he said for four, that if he said "your wage is upon me," he gives them four in any case and he takes three from the employer. And if he said "your wage is upon the employer," we see: if everyone is hired for four, he gives them four; and if there are those hired for three, we appraise what they did—if it is worth four compared to other laborers, they take four; and if it is not worth more than other laborers, or if the work cannot be clarified and there are laborers hired for this work for three even though there are those hired for four, they have only three. And their statement that they said "as the employer said" is considered as if it is non-existent, since he reduced from the messenger and their intention was not for this [Sma and Shach].

And if the employer said to him, "Go and hire for four dinars," and the messenger went and said to them in his name for three [Taz], and they said to him, "Behold, we are hired as the employer said," it is a doubt for us whether their intention was, "You are believed by us that this is what the employer said," and they have only three, and they have a grievance against the messenger. And there is no difference whether he said, "Your wage is upon me" or "upon the employer." And even if workers are not hired for less than four, and even if their work is worth more compared to other workers, since they thought and accepted for three, and this is like in section 4 where their speech neither adds nor subtracts since they gave trust to the messenger that so the employer said. Or perhaps their intention was that if the employer said more than three, he shall pay us as he said, and therefore since the employer said four, he shall pay four, even when their work is not worth more than other workers, and even when other workers are hired for three [Shach], since he thought and accepted to pay four. And since it is a legal doubt, the hand of the workers is on the bottom, according to the law of one who comes to extract, and they have only three. And if they seized four from the owners, their seizure is effective according to the poskim who hold that seizure is effective in a question that was not resolved [ibid.].

And there is a question regarding this: why do we say here that the hand of the workers is on the bottom like the law of one who comes to extract, for behold in siman 312 it was explained regarding one who leases a house to his fellow for twelve dinars per year, a dinar per month, that it is also a legal doubt, and nevertheless we ruled there that the hand of the lessor is on top even when he comes to extract from the lessee, because land remains in the possession of its owners and the doubt fell previously? If so, here too, why do we not say that the worker is possessed of his own body just as the landowner is possessed of his land, and his body remains in his possession and the doubt fell previously, and his hand should be on top even when coming to extract? However, in truth it is not comparable, for there the land that remains in the possession of the owners did not perform the action of its own will, as the lessee lived there against the will of the land; but here, this body that he possesses performed all the labor of its own will and he himself lost his possession, and he cannot extract afterward because of the doubt. And it is like a teacher who taught during an intercalated month, as was explained there, that the employer does not need to pay him for the intercalation since he taught of his own will. Therefore, if this worker also became aware in the middle of the labor that the employer said four, and he did not want to finish the labor until he gives him four, he does not need to complete the labor even though he already began it, because he is possessed of his body, and he shall give him four [Ktzot HaChoshen].

And according to this, in a house in such a case where Reuven sent his agent to Shimon to rent out his house to him for ten dinarin per month, and the agent went and said to Shimon for five dinarin per month, and Shimon said to him, "Behold, I am as Reuven said," the renter, for it is also a legal doubt as in the case of a worker; nevertheless, the renter is obligated to pay ten dinarin per month, for land remains in the possession of the lessor [ibid.]. And there are those who say that this is specifically when the agent informed the renter that the lessor said as the renter said, and he knew of this doubt before he entered, and it is similar to the law in siman 312, and seizing land does not avail in a case of doubt. But if the renter did not know what the lessor said and entered not under doubt but rather based on the deal of the agent, and granted that the lessor only consented to the higher rate of the renter, nevertheless, since the renter did not know of this, it is as if he entered without a price being set, where they must assess its value [Netivot HaMishpat]. And regarding a worker, there is no difference whether the employer knew what the worker said or did not know, and the employer's hand is always on the top, as I have written.

A homeowner who had laborers working for him and afterwards hired more laborers and said to them, "Perform work with me for three dinars as the other laborers did," and they said, "We will do as the others did," and it was found that he paid them four and he misled them, he must pay them four as he paid the previous ones. And it is not similar to what was explained regarding an agent in a case such as this, where the homeowner said for four and he said for three and they said "as the homeowner said," which is a legal doubt and their hand is at a disadvantage, for there the agent did not mislead them but rather hired them at this price, and it is possible that their intention was "you are trusted by us that the homeowner said so." But here, he indeed misled them, and their intention was clearly that if the others took four, they too would take four [Sma]. And according to this, even with an agent, if he misled them by saying to them in the name of the homeowner that he commanded him to hire them for three, he must pay them four. And there are those who disagree on this, for granted that he misled them, nevertheless he did not want to give them in any case more than three; and if we even consider his misleading as if he did not hire them at all, he only has to pay as the lowest of the laborers hired in the city [Shach]. And it further appears that misleading even with the homeowner himself is nothing, for what does it matter to them that he misled them, ultimately he only hired them for three and they understood and accepted, and he only gives them three [ibid.]. And the first opinion holds that since they said explicitly that they agree to as the others did, it is as if they stipulated explicitly that they only agreed in this manner, and his misleading is nothing and the transaction remains like the others [Netivot HaMishpat]. And this is like a mere disclosure of the matter, whereas with an agent, even if he said to them in the name of the homeowner, nevertheless the agent hired them; but with the homeowner himself, they established the transaction like the others and it is as if they said explicitly "for four."

A homeowner who misled the workers and said to them, "Work with me for three dinars, like the rest of the workers are hired in the city," and it was found that they are hired for four; or if the workers misled the homeowner, as they said to him, "Behold, we are hired to you for four, like the rest of the workers are hired," and it was found that they are hired for three—it is as if they did not hire one another at all, and he gives them like the lowest of the workers. And it is not similar to what was written in siman 331, that we average between them, for there he said "like one or two of the city people," but if he were to say simply "in the manner that the city people hire," we follow the lowest of the wages. And since here their hiring was canceled, they automatically do not have the right to receive more than the lowest in the city [Taz]. And why do we not say in section 9 according to the first opinion that the hiring is canceled because of the misleading as it is here? It is different there, for he misled them regarding what he himself paid to workers, and with such a deception, it is certainly as if they explicitly said, "Just as you paid to others, you shall pay also to us." This is not the case here, for he did not agree to more than three dinars and did not pay more himself. And if so, granted that they cannot force them to accept three, for he said to them "like the rest of the workers are hired," nevertheless, how can they force him to pay four since he did not agree to more than three? And automatically their hiring is canceled [it appears to me]. And there are those who disagree, for behold, it is a daily occurrence that a person sells an object to his fellow and says to him, "Such and such they offered me and I did not want to sell," and therefore the buyer gives him more than this sum, and afterwards it becomes clear that it is a lie—and would the transaction be canceled because of this? As long as there is no revelation of the matter that they relied only on the hiring of the others, it is not dependent on their hiring [Taz], for it is the way of the world to speak thus. But in section 9, where he hired them himself, it is like a revelation of the matter that they relied only on this. And even there, it is possible that it is specifically when they asked of him, "How much did you pay to others?" [ibid.], for then the matter is proven that they relied only on this.

Even though hiring is acquired without any kinyan, as written in siman 331, and in siman 336 it will be explained that he cannot say to the worker, "take what you have made for your wages," nevertheless, an employer who hired a worker and said to him that he would give him this object for his wages, or said to him, "this kor of wheat I will give you for your wages," and he performed the work—he can subsequently give him the value of the object and the wheat. For since he did not perform a meshikhah on them, he did not acquire them; and even though the hiring itself does not require a kinyan, that is only to become obligated for the wages of the hiring, but to acquire the object and the wheat is impossible without a kinyan. Therefore, he becomes obligated for the value of the object and the wheat because of the hiring. And why does the obligation fall more upon the money than upon the object and the wheat? Because standard hiring is with money [Shach]. And if the object or the wheat was burned, some say he is obligated to give him the money; since he is unable to take the object and the wheat from him against his will, the loss is not the worker's [Ktzot HaChoshen]. And some say that since it was within the power of the employer to give him the object or the wheat and he would have had to accept it against his will—for even though he does not acquire it, meaning to be obligated to give him specifically the object, it is certainly the case that if he desires to give it to him, he is forced to accept it—therefore, even though he can pay him off with money, it is no worse than an explicit apothiki, where he can also pay him off with money as written in siman 117, and nevertheless it was explained there that when a river sweeps it away, he does not collect from other properties [Netivot HaMishpat]. And there is one who says that when he said, "work with me as a worker and this object shall be yours," granted that he does not acquire it, nevertheless the employer is obligated to accept a mi she-para, for the wage of the labor is like money, and since he said "work with me as a worker," he became obligated for the value, and it is like giving money for the object [ibid. in siman 203]. But when he said, "work with me for this object," or if he said, "I will give you this object in exchange for the wage of the labor," there is no mi she-para here.

If he said to him to give him this promissory note for his wages, or a portion of it, he is obligated to give him the promissory note or money according to its value for sale [Shach]. And specifically when at the time he finished his work—which is when the obligation to pay his wages occurs—it is still lacking collection, for then he only needs to give him according to what it is worth for sale, for what difference is there to me between the sale of an object or the sale of a promissory note. But if at the time the hiring concluded he had already collected, he must give him according to what he collected [it appears to me]. And if he hired him to collect the promissory note and promised him for his effort a third or a fourth of the promissory note, he is obligated to give him the portion according to what they collected. And if he did not hire him to collect the money, but rather hired him to strengthen and validate the promissory note with certifications and the like, and [promised] to give him such and such a portion, there is one who says that since at the time his action was finished it was still lacking collection, he only needs to give him the portion according to what it was worth for sale then, for one must always give him the value of the object's worth at the time the action was finished [Netivot HaMishpat]. And it does not appear so, for since he hired him for the business of the promissory note, he is like a sharecropper in a field who takes whatever grows from the field, and it is not similar to one who hired him for other work and promises him a portion of a promissory note, for that is like a promise of any other object and they must appraise what it is worth at the time the work is finished. But when he hired him for the business of the promissory note, he hired him to give him a portion of a third or a fourth from the business of the promissory note when they collect it, and not what it is worth for sale, and he is exactly like a sharecropper. And if he does not give him his entire portion, then what he promised him has not been fulfilled [it appears to me that this is the intention of the Terumat HaDeshen brought by the Shach, and see Ketzot HaChoshen, and such is the primary ruling].

If one promised him for his labor a thing that has not yet come into the world, such as the fruit of a palm tree, or a thing that has no substance, such as a residence in his house for a time and the like, some say that although he is not obligated to give him the fruit itself or the residence itself, as it is no better than an object, nevertheless he is obligated to give him the value of the fruit—what they will be worth when they grow—for the obligation of wages takes effect even on a thing that has not yet come into the world since wages do not require a kinyan. Nevertheless, he does not need to give him the thing itself, for with what did he acquire it? Only the obligation of the money takes effect upon him [Ktzot HaChoshen]. And some say that he only needs to pay him according to what the fruit is worth at the time of the completion of the work, for then the obligation of the wages takes effect, and he gives him according to what they are worth then for sale [Netivot HaMishpat]. And it appears to me that if he promised him for his labor a palm tree for its fruit or a house for residence, he has acquired the palm tree and the residence and he cannot give him their value; it is not similar to an object which lacks meshikhah, but land is acquired with money, and the wages of his labor are like money, and he acquires the rental of the palm tree or the house. For specifically when he said "fruit of a palm tree" or "residence of a house," a kinyan does not take effect on a thing that has not yet come into the world or that has no substance, as written in siman 209, and therefore even if we consider the wages of his labor like money, the kinyan does not take effect. This is not the case when he said "a palm tree for its fruit" or "a house to dwell in it," where the kinyan certainly takes effect. However, it is possible that if the employer retracted before the completion of the work, his retraction is a retraction, and he only needs to give him the money; for since wages are only paid at the end, the worker's kinyan is only at the completion of his work. Furthermore, regarding the primary law there is reason to doubt, for since we establish that "wages exist from beginning to end," and every single perutah's worth that he worked becomes a loan upon the employer, as written in Even HaEzer siman 28, and according to many poskim as explained in siman 190, one who sells via a loan, it is not a sale, and the rental of land and its sale have one law; if so, it is possible that one does not acquire land for rental through the wages of labor.

An incident occurred where one hired a messenger to go to a certain place for ten dinarin, and the custom of the place was to hire a messenger for less than this amount, and it was their custom to also give the messenger travel expenses, but this person did not speak with him regarding expenses. In the meantime, the employer left the city, and when the messenger needed to depart, he told others that he also wanted travel expenses. Afterwards, upon the messenger's return from the journey, he claimed travel expenses from the employer, and the employer said to him: For this reason I added for you more than other messengers, in order to include in this the expenses that others give. And they ruled that the law is with the employer, for in such a case the money provides an indication regarding the hiring of a worker. And even though it was explained in siman 331, section 6, that what he added for them is not a claim to exempt himself from what is customary, nevertheless, since this messenger did not receive the sustenance beforehand like other messengers, and either way there is a change from the custom, the hand of the employer is on top [Netivot HaMishpat]. However, it is not clear that this fact—that he did not receive the sustenance beforehand when the employer was not here—should be considered a change, for what was he to do? And it is possible that when the addition is a great deal, out of proportion, then the money is proof; and that which was explained there, that the money is not proof, is when the addition is small [and the difficulty of the Ketzot HaChoshen is answered, see there].

A homeowner who hired workers for a sela and the labor became cheaper, and the homeowner showed them a frowning face, and the workers appeased him with words but did not mention anything regarding a reduction in the price—even if these appeasements were before the start of the labor, nevertheless he is obligated to pay them as he hired them. The homeowner cannot say, "I was only appeased by you with the understanding that you would reduce my wages according to the cheapness that occurred," for since they did not speak of this, they can say, "We only appeased you so that we would perform the labor well, and so we did." For they are able to justify their appeasement with any matter whatsoever, because since they did not speak explicitly, even if he thought so in his heart, matters of the heart are not matters. And similarly, when the labor became more expensive and the workers showed him a frowning face, and the homeowner appeased them with words but they did not speak of raising the price, he does not need to give them according to the high price, but rather according to what he hired them for. They cannot say, "We were only appeased with the understanding that you would add for us," because he can say to them, "I only appeased you with the intention to exert myself for you regarding food and drink or some other matter that he can attribute the appeasement to." And it appears to me that both the workers and the homeowner do not need to provide reasons for the appeasements unless some addition or some reduction was implied from the appeasement. Nevertheless, since they did not mention it explicitly, they can provide other justifications. But if it was merely verbal appeasements, no justification is needed at all.

And if they spoke explicitly to decrease or to increase, such as if the labor became more expensive and the workers said, "We will not work without an increase of such and such," and the employer appeased them, even if he did not say to them, "Behold, I am increasing for you," but rather said, "Go and do your work," he must increase for them. And it is not only necessary to say so if it was still before the start of the work, but even if it was after the start, since a worker may retract, it is like the start of the work. Therefore, in a case where he cannot retract without loss, according to what will be explained in siman 333, there is nothing in their words if the employer himself did not say, "I am increasing for you like other workers," or "an increase of such and such." And if the labor became cheaper and the employer said, "It is not my will that you work unless you decrease for me from the price such and such," and they appeased him with words and did not mention the decrease, if they already started the work, there is nothing in his words, for behold, he cannot retract. And even if they had not yet started the work, but the workers have a grievance over his retraction as will be explained there, some say also that there is nothing in his words, for since by law they have a grievance over his retraction, even though he said, "It is my will only with a decrease," nevertheless, when they appeased him, we estimate his intent that he returned to his previous price. But if they do not have a grievance over his retraction by law, or even if they already started the work but the workers retracted previously and their hiring was voided, and afterward they reconsidered to finish the work, and before this start he said so to them, he gives only as he said, even if they did not say explicitly that they agree to the decrease. However, if they agreed with one another explicitly on a decrease or an increase, there is no difference between before the work or in the middle of the work, whether they could retract or whether they could not retract; they shall do according to their words, since both sides said so. And see in siman 221 [as mentioned regarding these laws, and see in the Nimukei Yosef, chapter 6 of Bava Metzia].

Work that is worth five dinars, and so all the laborers take, and the householder hired laborers for four, and in the meantime the work became cheaper such that they hire for four, the householder has no claim against them that they should reduce a dinar for him and take only three because he hired them for less than the other laborers and they must also now take less, for this is no claim at all, even if they had not yet started the work at all. And so too the opposite: if all laborers are hired for such work for four, and he hired them for five because they would not agree to less and he specifically desired to hire them and give them more, and in the meantime the work became more expensive such that everyone takes five, they cannot say, "Add another dinar for us and give us six," for this is no claim at all. And the reason is that certainly if they had made the transaction explicitly for a dinar more than other laborers or a dinar less than other laborers, their claim would be good; but when he hired them for more or for less without specification due to whatever reasons this one or that one had, and the householder agreed to give five or they agreed to take four, what does it matter to them if it became more expensive or cheaper? Behold, they agreed upon this transaction. And if they should say that in their hearts they concluded that it should specifically be a dinar more according to whatever the market rate may be, or the householder should say that in his heart it was to reduce from every laborer—words in the heart are not words. And for such a matter, a mere disclosure of intent is not sufficient, but rather an explicit condition. [And this is the intention of Rashi, Bava Metzia 77a, s.v. "Hashta"].