Siman 333

One who hires workers and they have not yet begun the work at all, whichever of them comes to retract has the authority to do so, for the employer can say to the worker, "Go hire yourself out elsewhere," and the worker can say to him, "Go and hire yourself another worker." However, the second party has a grievance against the one who retracts because of the exertion of searching for another. Therefore, when it is common to hire oneself out or workers are common and there is not much exertion, there is not even a grievance according to the law [Shach], and the practical difference is regarding what is written in siman 332, section 16; see there. And there is one who says that the law of this retraction is like the law of retracting from a purchase through words mentioned in siman 204, that the sages are not pleased with one who retracts, and he is among those who lack faith. And according to the one who holds there that even when the price of the purchase changed he is called one who lacks faith, so too here, even if the wages of workers changed, the one who retracts is called one who lacks faith [Sma]. However, if the employer did not need the work according to what was newly developed afterwards in his business, or it became known to him that these workers do not engage in the work properly, it appears that the worker has no grievance against him and he is not called one who lacks faith. And so too, if the workers retracted because of some new development that occurred to them, the employer has no grievance against them and they are not those who lack faith [and the wording of the Sma in subsection 1 who wrote "that he does not need them" is not precise; and examine this].

That which has been explained, that they have nothing against one another but a grievance, in what case does this apply? When they have no loss through the retraction but merely exertion; however, when there is a loss, such as when he hired them and after several hours retracted, and at the time he hired them the workers had another place to hire themselves out and now they do not have the place, this is like a "lost matter" and the employer is liable to pay them their wages by the law of garmi. This is not related to one who causes the idleness of another's money, who is exempt, for labor of the body is different. However, he only pays them like an idle worker, according to one who sits idle and does not exert himself in the work, as written in siman 265. And if they find a place but are hired for less than what they took with him, and at the hour he hired them they were able to take this price for which he hired them, he completes for them what they take less. And if they find work but it is heavier than that for which they were hired with him, and then they could have obtained work such as that which was with him, some say they are obligated to hire themselves out if they add wages for its heaviness, or if this first one says "I will add for you for its heaviness." And some say they can say "it is not our will to do heavy work even with an addition of wages," and he shall pay them like an idle worker. And it appears the primary view is like the first opinion [Shach]. And if at the time he hired them they did not have another place to hire themselves out, he is exempt in all cases. And if the workers say that they had another place and he denies them, it is upon the workers to bring proof according to the law of "one who extracts from his fellow." And if they did not bring proof, the employer swears a hesset oath and is exempt. And it appears that the workers are also liable to pay the employer when he has a loss through their retraction, and in a case of denial, it is upon him to bring proof; and if he did not bring proof, the workers swear a hesset oath and are exempt, and one of them swears [and that which the poskim wrote this only regarding workers is because a loss to the employer is not common through this].

There are times when even if at the hour he hired them they had no other place to hire themselves out, nevertheless he is obligated to pay them as an idle worker, such as if they began the work; and even if they did not begin the actual work but rather the preparation for the work, such as if he hired them to plow his field and they went to the field and found it moist and not yet fit for plowing, or if he hired them to irrigate it and they went and found it filled with water and not in need of irrigation, or if he hired donkey-drivers to bring him grain from a nearby place and they went to that place he told them and did not find the grain and returned empty with their donkeys, and similarly with other works, he gives them their wage as an idle worker, for the exertion of one who performs work is not similar to one who sits idle, and coming with loaded donkeys is not similar to coming empty. And see what I wrote in siman 335, section 5. And specifically if they themselves went, for then it is like the beginning of work, but if they sent their messenger and found that there is no work here, their law is like those who did not begin the work, for if they had no place to hire themselves out, he is exempt and they have nothing but a grievance [the Maggid Mishneh, chapter 9]. And in the case of one who hired to bring grain from a distant place and they went there and did not find grain, he is obligated to pay their entire wage, for they performed their work in its entirety, and only in a nearby place is it necessary to judge as has been explained, for they have not yet performed their action; but a distant way, even though they came without merchandise, is called having performed their action completely [Netivot HaMishpat]. And see what I wrote in siman 311 and in siman 335, section 14. And there is no difference regarding preparation for work between whether the work was not canceled entirely, such as a field for plowing that they found moist, which when it dries will be fit, and whether it was canceled entirely, such as if it was filled with water or they did not find grain [and therefore in the Gemara at the beginning of the sixth chapter of Bava Metzia it took these two: a field to plow and bringing grain, see there and examine closely].

However, according to what will be explained in siman 334, in any case where the work was cancelled not through the negligence of the employer but due to an accident, in a matter that the employer should have known and the workers did not, he is obligated to pay them. But if the workers should have known this, and even if the employer also should have known or if both of them could not have known, it is the loss of the workers. Therefore, if the employer inspected his work in the evening and found that it required workers, and overnight a change occurred, the workers have nothing against him, even when they had a place to hire themselves out, for what could he have done? It was decreed upon them from Heaven. But if he did not inspect the work in the evening, he gives them their wage as an idle worker, for it is negligence that he hired workers and did not see beforehand if the work was needed or not. And so too regarding all types of work, one must see to this. And when he was negligent in this, it depends on what has been explained: if they had a place to hire themselves out, he is obligated even if they did not begin the work or its preparation; and if not, he is not obligated unless they began. And so too if the workers knew of this as well, that the work was not needed, he is exempt in every case, and it appears that they do not even have a grievance. And regarding the details of the law of inspecting in the evening, it will be explained with the help of Heaven in siman 334.

The beginning of work is defined as such even if he hired them for a year and they worked day by day, and in the middle of the year a matter arose whereby the work was cancelled; and similarly even for many years, as long as the time has not concluded, it is considered the beginning of work regarding the laws that have been explained. Therefore, a melamed who hired himself out for two years and began the first year, it is considered a beginning even for the second year, and likewise in all types of work.

Our teachers, of blessed memory, learned from the oral tradition that a worker may retract even in the middle of the day, as it is written: "For the children of Israel are servants to Me," and not servants to servants [Bava Metzia 10a], for he is not his master's like a slave. And if he wishes to leave his wages from this point forward and retract, he may retract [Rashi], for the Torah prevented a person from subjugating his body to labor such that he would not have the ability to retract. Therefore, it is permitted for a person to hire himself out, for specifically a Hebrew slave—who cannot retract and does not go free before his time except with a deed of liberation—transgresses the prohibition of "For they are My servants" [Tosafot]. And if he swore or gave a handshake, he must fulfill it due to the oath, and this is not like one who swears to transgress a commandment, for it is permitted for him to hire himself out; and behold, even to sell himself as a Hebrew slave when he has no sustenance or clothing, he is permitted to sell himself, as the Rambam wrote in the second chapter of Laws of Slaves. And there is no distinction in this between a worker hired by the day and a contractor who accepts the work to perform it for such-and-herself an amount, and not for wages of each and every day; except that there is a difference between a worker and a contractor, for a worker who retracts in the middle of the day, we do not appraise the remaining work, and even if it will cost the employer more than what he hired him for, we do not concern ourselves with it. However, by a contractor, we appraise the remaining work so that it will not cost him more than what he hired him for, as will be explained, for regarding the essence of the matter, his law is like a worker who can retract, except that his hand is at a disadvantage [Haggahot Asheri, chapter 6 of Bava Metzia]. And even a contractor in a business venture and not in labor, who received money from his fellow to engage with them for half the profit, may retract in the middle of the time and say to him: "I will not toil further, and I will take what is coming to me until now" [Tosafot ibid. 105a]. And so it is explicitly proven in the Yerushalmi, that a contractor's law is like a worker.

There are some of our teachers who wrote that even though a worker may retract, nevertheless, if the employer has in his possession tools of the worker with which he performs the labor, he may withhold them and compel him to perform his labor in its entirety [Nimukei Yosef, chapter 4 of Bava Metzia in the name of the Rashba and the Ran]. And if he does not desire to finish his labor, he may hire another worker using the value of these tools up to the amount of his wages, even in a matter that is not a loss; for in a matter of loss, he may hire even for more than the value of his labor, as will be explained [Maggid Mishneh, chapter 9 in the name of the Ramban]. And the reason is that while his body is not acquired such that they may compel him to finish the labor because of the decree of the Torah, nevertheless, his tools are acquired for this matter to the employer [Tosafot Kiddushin 8b, s.v. "Maneh"]. And specifically the tools of his craft, but other objects of the worker or money that he has with the employer, he may not withhold for this, and only the tools of his craft are acquired to him for this.

There are some of our teachers who wrote that they only said a worker may retract his agreement if he hired himself out through speech, but if he became enslaved through a kinyan or a document, he cannot retract [Ritva in the name of his teachers]. And our teacher, the Beit Yosef, wrote likewise in his great book, and this is not a kinyan devarim, for he is enslaving his person to this and the kinyan takes effect upon the enslavement of the person. And there are those who disagree with this, for since the reason is because "for the Children of Israel are servants to Me," what difference is there between a kinyan or a document and mere words [Rivash siman 476]? Furthermore, even the commencement of labor constitutes a kinyan, and nevertheless he may retract; if so, what addition is there in a kinyan or a document [Shach]? Furthermore, even a Hebrew slave whose person is acquired goes free through the deduction of money, certainly then a worker. And the reason for the first opinion, it appears to me, is that in the Yerushalmi [Chapter 6 of Bava Metzia] it says that according to the reason of "for the Children of Israel are servants to Me," the employer may also retract, and we rule according to this reason. And it must be said that what the poskim wrote, that the employer cannot retract, means that his hand should not be on the upper hand like a worker, but rather his hand is on the lower hand like a contractor, as will be explained. And the proof is that the Tur and the Rema wrote in this siman that an employer who retracts, his hand is on the lower hand; evidently he can retract, and for the reason that there is no enslavement from this one to that one at all. According to this, the commencement of labor is truly not a kinyan at all, and this is the decree of the Torah, that the commencement of labor shall not be a kinyan at all for the reason of "for the Children of Israel are servants to Me," for he cannot enslave himself through his labor like a slave. And that which the poskim call this a kinyan is only a borrowed term, and the practical difference is regarding what is written in section 3. And that which a Hebrew slave goes free through the deduction of money, this is his acquisition, that he acquires himself from his master, as we learned: and he acquires himself through the deduction of money [Kiddushin 14b], for thus the Torah decreed. Therefore, the Torah only decreed that labor should not be a kinyan and that through labor they should not be enslaved to one another; but when of their own will they enslave their persons through a kinyan or a document, he certainly has the power to do so, just as he enslaves the person for money. And behold, it is certain that through a kinyan or a document the employer cannot retract, and according to the Yerushalmi they are equal in this law. And that which there is a difference between a worker and an employer, that regarding an employer his hand is on the lower hand, the reason will be explained before us. And many of the Acharonim agreed with this opinion, and so one should instruct.

Regarding that which has been explained, that before the work begins both of them may retract, one of our teachers wrote that a scribe who hired himself out, if the employer pulled from him his quill or his razor, they can no longer retract. And even though a worker may retract, that is specifically a worker and not a contractor [Tosafot Bava Metzia 48a in the name of Rabbeinu Tam]. And the Rosh wrote there accordingly, that from here Rabbeinu Tam, of blessed memory, infers that one who hires a craftsman and pulls his tools of craftsmanship, the kinyan of the hiring is finalized; and if he is a contractor, he cannot retract, but if he is a day laborer, he may retract even though the kinyan of the hiring was finalized, like a Hebrew slave who deducts from his redemption price and leaves. Thus far his words. It is clear from this that he holds that a contractor does not have the law of a worker at all and cannot retract, unlike what was written in section 6. And so it was written in the glosses there. But there are some of our teachers who disagree on this and wrote that from there there is no proof, only that the employer may withhold the tools of craftsmanship and hire a worker against them as was written in section 7, and there is no difference between a worker and a contractor except regarding the matter of "his hand is on the top," as has been explained.

And according to this, that which our teacher, the Rema, wrote in section 1 is difficult: that there are those who say that if the employer pulled the tools with which the work is performed, the employer cannot retract, nor can the worker if he is a kablan; but if he is a day laborer, he may retract, however [the employer] may withhold his tools and hire others. Thus far his words. And he combined two opinions together [see Shach]. Furthermore, how could he write according to a minority opinion in a place where many disagree with him? And we have already brought in section 6 from the Yerushalmi that there is no difference between a day laborer and a kablan. However, one must also wonder about our teachers, the authors of the Tosafot, for there they wrote according to the words of Rabbeinu Tam, yet in [Bava Metzia] 108a they wrote explicitly that even a kablan has the status of a worker [and so it appears in the Shas there, 77a, see there].

Therefore, it appears to me that they do not disagree at all regarding the law, and all of them hold that even a contractor can retract. That which Rabbeinu Tam wrote, that a contractor cannot retract, his intention was that his hand is at a disadvantage. Because it is common in the language of the poskim that whoever's hand is at a disadvantage is described as "unable to retract," such as regarding the employer, of whom they wrote that he cannot retract, and we explained in section 8 that the intention is that his hand is at a disadvantage; and here too it is so. Rabbeinu Tam only innovated that regarding a contractor, since he pulled his professional tools, he cannot retract in the sense that his hand is at a disadvantage, even before he began the work. And the proof is that our teacher, the Rema, included both of them, the contractor and the employer, and regarding the employer he wrote explicitly in section 4 that his hand is at a disadvantage. That which the Tosafot and the Rosh wrote in his name, that there is a difference between a laborer and a contractor, is only regarding the matter of his hand being at a disadvantage. Our teacher, the Rema, holds that everyone agrees to this, that he can withhold his professional tools even in the case of a day-laborer, but regarding a contractor it also constitutes a kinyan regarding the matter that his hand shall be at a disadvantage. And even if he gave him his professional tools, nevertheless, since he pulled them, or even if he did not pull them but only placed them in the courtyard of the employer [Taz], his status is like one who began the work. But if the tools were there with the employer previously as a deposit, it is not effective regarding this matter [ibid.]. This is what appears to me to be correct [and the difficulty of the Shach, subsection 5, and the Gra, subsection 2, is resolved].

And the reason that the worker has the upper hand and the contractor and the employer have the lower hand, it seems to me that from the fundamental law it is so: for a worker who was hired for daily wages, he did not hire him to perform the labor in its entirety, but rather for such and such days, and the days are not connected to one another; therefore, according to the time he worked, he must pay him, even if the remainder will cost him more. But a contractor who was hired to perform this labor in its entirety, therefore we must see to it that it does not cost the employer more than what he hired him for; and therefore, if the remainder of the labor will cost the employer more than what remains of the payment, the contractor must deduct it for him. And the employer, even with a worker, has the lower hand, because the employer has his eyes on the labor; therefore, if the remainder will cost him less, why should he profit from what he estimated the cost of the labor to be? And if it will cost him more, he himself caused it by his withdrawal, and why should the worker have a deduction from the days he worked, since his eyes are on the time.

This fact that a worker may retract is even if he already received his wages in full and does not have the means to pay the employer in cash, and the money remains as a debt upon him, provided it is certain that he has the means from which to pay. However, if he does not have the means from which to pay, it is like a "davar ha'aved" which will be explained, and he cannot retract; for granted that the Torah permitted him to retract, but it did not permit him to rob [Shach]. And according to what I wrote, there is no distinction between a day laborer and a contractor. But according to the poskim who distinguish between a laborer and a contractor, this law does not apply at all to a contractor. And it appears to me that according to what I wrote in section 8, that with a kinyan or a deed he cannot retract, if he stipulated at the time of receiving the money that he would work until the end of his term, he cannot retract, for this is not like stipulating against that which is written in the Torah.

According to what the Torah decreed, some say that for this reason it is forbidden for a laborer, a teacher, or a scribe to hire himself out to be in the house of an employer for more than three years [Shach], for regarding a laborer we find in the verse that they are three years, as it is written: "three years, like the years of a hired laborer," and in more than this the name of "slave" is upon him and not "hired laborer." And there are those who are careful not to hire themselves out for six years, but for five years they do hire themselves out; and the reason is that it is written regarding a Hebrew slave: "for double the hire of a hired laborer he served you six years," and therefore in six years the name of "slave" is upon him, but not in less. And there are those who disagree with all of this, for specifically a slave who cannot retract his commitment is forbidden, but regarding a hired laborer who can retract his commitment, this is not a slave [Tosafot Bava Metzia 10a and Mordechai, chapter HaUmanin]. However, if he is poor, it is permitted even for many years, for even to sell oneself as a slave is permitted in such a case, as the Rambam wrote in chapter 5 of Hilkhot Avadim, and all the more so to hire oneself out [Shach].

Therefore, there are rabbis who do not accept a writ of rabbinate for six years, and there are those who do not accept for more than three years, and they are able to retract even within the time according to the law of a laborer. However, it appears to me that if he received advance money from the city for his needs, he is obligated to pay them back according to the value of the time he retracts, for they only gave it to him for the duration of the writ and not for less than this. But the people of the city cannot remove the rabbi from his place even when the time of the writ concludes, and they pay him his salary and income as before [Chatam Sofer]. And so they practiced in all the dispersions of Israel, for the time they establish is for the sake of the city, so that the rabbi will not retract within the time; for even though according to the law he can retract, nevertheless, he would be lacking in faithfulness and they would have a grievance against him. After the time of the writ, he can hire himself to another place or withdraw entirely, and there is not even a measure of piety in this, and so practiced all the greats of the world. But the people of the city never retract unless a disqualification is found in him, for it is not reasonable that one should uproot his pegs and dwellings, him and his house and his offspring, and afterwards they should remove him so that he remains without a place for his livelihood. And such is the law regarding a shatz and a shamash and all types of appointments, that as long as no disqualification is found in him, they do not remove him all the days of his life, and such is the custom. See in section 29.

What is the law regarding the retraction of a poel and a kablan? If he is a day laborer, he may retract even in the middle of the day, and his hand is on the top. For example, if he hired him for eight dinarin for the day and he worked with him for half the day, he gives him four dinarin, even if the second half will cost him more than four dinarin. And if it will cost him less than four, he gives this to the poel, for the employer should not profit from this; and there is one who disagrees on this [Shach]. But a kablan, his hand is on the bottom. For example, if he hired him to do this work for ten dinarin and he did half the work, if the second half will cost him seven dinarin, he only gives him three dinarin. And if the second half will cost him three, the employer profits the two dinarin and the kablan does not take more than five. However, if the work became much more expensive such that he must pay more than ten dinarin for the second half, the kablan does not have to pay from his pocket [Sma], and even if he seized from the kablan's property it is of no use [Bach]. And so too an employer who retracts, his law is like a kablan, as has been written.

And so the Rambam wrote in chapter 9, and this is his wording: What is the law of a worker who retracted after he began? They appraise for him what he has done and he takes it. But if he is a contractor, they appraise for him what remains to be done, whether it was cheap at the time he was hired or whether it was not cheap, whether the labor became cheap afterward or whether it was not cheap, they appraise for him what remains to be done. How so? He accepted from him standing grain to harvest for two sela'im; he harvested half of it and left half of it. A garment to weave for two sela'im; he wove half of it and left half of it. They appraise for him what remains to be done: if it was worth six dinarin, he gives him a shekel or they finish their work; and if what remained was worth two dinarin, he gives him only a sela, for they only did half the work. Thus far his words. And it is called contracting whenever he hired him for the labor and not for the time, even if it is known how many days they perform this labor, such as if he took upon himself to make such-and-such amount of wine during the days of the vintage, and the days of the vintage are known how many they are; nevertheless, since he did not hire him for days but for the labor, he is called a contractor. And our teacher, the Rema, wrote that this is specifically when he retracts without specific cause, but if he retracts due to a price increase, we do not listen to him. Thus far his words. And so wrote the Tur. And the intention is not that due to a price increase he has no ability to retract at all, as occurred to the mind of some of the poskim, for there is no reason for this at all; since the Torah decreed that the labor is not a kinyan and he can retract, what does it matter to us for what reason he retracts? Behold, he was not enslaved to him until the completion of the labor. Rather, this is the explanation: that when he retracts due to a price increase, his hand is not on the upper, but rather on the lower, like a contractor, for we do not have to have mercy on him. And so it is implied from the arrangement of their words, see there [and so it is implied from the Sma, subsection 16, who wrote the reason that the power of the worker was not improved so that he should profit the money]. And similarly, there is no difference in the retraction of a worker between one who retracts and has no desire to hire himself out at all, and one who retracts and desires to hire himself out to another. This is not like the one who wished to say that when he wants to hire himself out to another he cannot retract, for he still wants to make himself a slave to slaves. And it is not so; for does one who hires himself out transgress this? For if so, it would be forbidden for a person to hire himself out! Rather, the Torah said that for this reason a person does not enslave himself in the labor as with a kinyan until the end of the time, as I wrote in section 6. And if so, since he is not acquired to him until the end of the labor or the time, what does it matter to me if his desire is to hire himself out to another or not? And so several of the great Acharonim agreed, and so is the primary law. And even so, his hand is on the upper if he does not hire himself out to another because of the price increase [it appears to me].

All that has been explained, that they are able to retract, is only when the labor is something that is not a davar ha'avud if they do not complete it now. But in a davar ha'avud, if they do not complete it immediately and it will be ruined—for example, if he hired workers to take his flax out of the soaking pit and if they leave in the middle of the labor the flax will be ruined, or if he hired a donkey to bring flutes for a deceased person or for a bride and the like where the time for the labor passes, and similarly tailor or shoemaker workers who retract before the holiday at the time when the main labor is performed then, and the like—both a worker and a contractor are unable to retract unless an oness occurred to them, such as if he or his wife and children became ill, or if he heard that a relative of his died, for with such accidents he is compelled to leave the labor. And even in a davar ha'avud, he pays them for what they have done until now, and he does not need to pay them their entire wage, and their hand is not at a disadvantage, and their law is like the law of a worker who retracts since they retract due to an oness [Shach]. However, regarding tailor and shoemaker workers who are hired to them for a year or for many years, and it is known that before the holiday is the main labor, and when they pay a worker for a month in the middle of the year they pay for a month before the holiday double—when they leave them in the middle of the time even due to an oness, they must calculate the value of each and every time according to what the market price is for workers, and so too anything similar to this [it appears to me]. And a manservant or a maidservant in the house of the employer is called a davar ha'avud because the employer himself does not have the ability to do the labors that are necessary, and therefore they may not retract even when they are day-laborers unless an oness occurred to them, for then he pays them for what they have done until now and they go their way. And everything is according to the sight of the eyes of the dayan if it was like a davar ha'avud.

In a matter involving a loss, if the worker was not under duress and retracted, the employer hires others at his expense or misleads him. How does he mislead him? He says to him: "Is it not so that your retraction is because you desire a higher wage? I will give you a higher wage." He finishes the work and he gives him only the price for which he hired him. For example, he says to them: "I fixed a sela for you; come and take two," and he waits until they finish the work and does not give them anything but what he stipulated at first. And even if he was forced to give them the two before they finished the work, he recovers the supplement from them, because it is absolute theft.

How does he hire against them? For example, if he hired them for two sela'im and they retracted in the middle of the work, he hires other workers against them and they complete the work so that it is not lost. And whatever he adds to these other workers over what he stipulated with the first ones, he takes from the first ones. And if he was forced to give for the completion of the work the entire two sela'im, he gives the first ones nothing. Furthermore, even if he must give more than what he hired them for, if the employer had their money in his possession—even other money that is not their tools of craft, and even if they did not give him the money as a pledge for the work [ibid.]—he hires on their account to complete the lost work and pays the others even the highest price paid in a time of need. For example, sometimes one pays in a time of necessity forty or fifty zuz even though the worker's wage was three or four zuz; he hires against them even up to this price. And some say that this matter of hiring against them up to forty or fifty and the like, more than their wages, is specifically when he seized their tools of craft, for this is like a lien with him for the work, or if they pledged money or objects to him as a guarantee for the work; but other money and objects he cannot withhold. However, up to the equivalent of their wages, if they received a portion and he must pay their entire wages, he can seize anything from them. And the primary view is like the first opinion [ibid.]. And if he did not hire other workers against them and the work was lost thereby, the workers are not liable to pay him for his damage, for they did not become guardians; and anyone who is not a guardian is not liable for negligence, only for damaging directly. And this is not garmi, for he should have hired others on their account. And if he was unable to obtain others to complete it, if the matter involves a loss of money, such as flax and the like, they are liable to pay for the entire damage, for they are like damagers and are liable by the laws of garmi, for how can they cast aside in the middle of the work that which will be ruined when other workers cannot be obtained? And if there is no loss of money in this, such as one who hires to bring flutes for a deceased person or for a bride, or matters of teaching and scribal work and the like, where the matter is lost but not money—even though their law is like a lost matter—nevertheless, if he did not hire against them and did not mislead them, they are exempt from paying [see Shach, subsection 39].

All that has been explained regarding a matter of loss is only when there are no other laborers available to hire for what remains of the wages of the first ones to complete the work, for then he hires against them or misleads them. However, if there are other laborers available to hire for what remains of their wages, and the laborers said to him, "Go and hire from these and complete your work," whether it is a day-laborer or a contractor, he has nothing against them but a grievance, and their law is as if it were not a matter of loss. And one appraises for a day-laborer according to what he has done, and for a contractor according to what he is destined to do, as has been explained in section 16, except that the day-laborer has the upper hand and the contractor has the lower hand. And if he did not do so and misled them, he is obligated to give them according to what he stipulated for them at the end; since he could find other laborers to finish the work at the standard price, he should not have misled them. And this is specifically when the employer began to mislead them, in that he said to them, "Take more than the price I set with you," but if the laborers began by saying, "We will not finish the work unless you add such and such for us," he may mislead them even when other laborers are available [Shach].

And so, even if he cannot find other laborers, he may not hire against them or deceive them unless at the time he hired them, other laborers were available to be hired and now they are not available. However, if even previously he could not find other laborers, then they have caused him no loss. There are those who disagree and hold that even in such a case, he may hire against them or deceive them [ibid.], because in any event, since they were hired by him, they must finish so that he does not suffer a loss; for it is possible that had they not been hired by him, he would have exerted effort and would have obtained other laborers. And it appears to me that in such a case, if the matter is not so clear that he would not have obtained other laborers, even the first opinion agrees.

A worker who works for free for a homeowner may retract even in a matter involving loss and say, "I will not work for free, but rather for a wage." However, if even for a wage he does not want to work, and this one wants to give him a wage, and another worker cannot be obtained now, whereas initially he could have obtained another worker, and in the meantime the work was ruined, he is liable to pay him for all his loss according to the law of garmi [ibid.].

A teacher who retracts from teaching with the student is considered a case of a lost matter, for every moment that the student remains idle is a loss that does not return. The teacher cannot withdraw in the middle of the term unless he immediately provides another teacher in his place who is as good as he is [ibid.]. If not, he cannot retract unless he was under duress, such as if he, his son, or his wife fell ill, or if a relative died; in which case he is paid for the time he taught according to the calculation, even if it will cost the employer more than what he hired him for, since he was under duress, what could he do? Every teacher has the status of a day laborer, for he hires himself out for a period of time—and "day laborer" is not specific, for the same applies to a weekly laborer, a monthly laborer, or a yearly laborer who has the status of a day laborer. Therefore, if he hired himself to teach a book, or half a book, or a certain masekhet, he has the status of a contractor. Teachers have the status of other workers who must act according to the custom to start early or stay late, as written in siman 331. He is forbidden from doing his own work along with the teaching, or to be awake late at night more than the manner of average people. Likewise, he may not fast more than any average person, and likewise he may not overindulge in food and drink, for all these things weaken the strength for his teaching. Anyone who deviates, his hand is at a disadvantage, and they remove him. Likewise, a scribe who accepts to write one book and retracts is considered a case of a lost matter, for when he hires another scribe to finish it, the script will be from two scribes which are not similar to one another and it will not be beautiful. Furthermore, more of the laws of teachers will be explained with the help of Heaven in siman 334. And know that all that has been explained regarding a lost matter—that one may hire others against them or deceive them—applies even when they have not yet begun this work, since it is a lost matter [Tur].

Any worker or teacher who fell ill in the middle of his work, the employer pays him for what he has done until now and his hand is on the upper side, even in a matter of irretrievable loss as has been explained. And for the time of his illness, he does not pay him at all. And if their illness or the other constraint passed and the employer accepted them back and they returned and performed their work until the completion of the time, our teacher, the Rema, wrote in section 5 that he must pay them for all their work and does not deduct anything from them for the time of the constraint. For since he accepted them after the constraint without specification and did not say to them that he would deduct for the time of the constraint, he presumably waived it for them, and with this intent he accepted them: that he would pay them in full. And many disagree with this, for only regarding a Hebrew slave whose body is liened to him is the law such, for when he falls ill within the time, he falls ill in the domain of the employer. But a teacher or worker or contractor, even if he hired him to perform all the tasks, nevertheless his body is not acquired to him, and why should he pay them for the time they did not work [Shach]? And waiver is not relevant regarding a matter that he must give, for waiver only exists regarding a debt owed to him and not regarding what he must give.

Our teacher, the Rema, further wrote: However, if the teacher or the worker has already received his wage, some say that he does not need to return it even if he was idle from his work due to his illness or another accident, for the matter depends on who is the possessor [Taz], since the accident is from Heaven; therefore, when the teacher or the worker is the possessor, one does not extract it from his hand. And in this as well, many disagree with him, for what relevance does being the possessor have here? For this is not a case of legal doubt where possession would be effective, as it is a simple matter that for the time he was under accident and did not perform his work, he is not entitled to take wages, and what is it to the employer if he suffered an accident? Therefore, in every case, he must return it [Shach and the Gra]. And see what I wrote in siman 329, section 2.

An artisan is a contractor, and all the laws that were explained regarding a contractor apply to an artisan. And there was an incident with Reuven who accepted from Shimon a garment to weave five cubits for a dinar, and when he began to weave, he devised a pretext that the yarn was of poor quality and wanted to leave his work, and through this he was forced to add to his pay, as it is like a matter of loss. And the Rosh, of blessed memory, ruled that he does not need to give him the addition, and this is what they said: "he hires others against them or misleads them." However, if the artisan clarifies through experts that the work is harder than what the homeowner told him, the homeowner must add to his pay according to the assessment of the experts. And one should not raise a difficulty according to the opinion of those who hold that an artisan acquires the improvement of the vessel, as written in siman 306, why should it not be in his power to request as much as he wants since the vessel is his, and all the more so if the artisan made it from his own materials. However, it is not difficult at all, for how is it possible in a matter where he hired himself out for such and such that he should add to it? Rather, certainly the law of the improvement of the vessel is not relevant at all to this matter, and the artisan is a worker like all workers, and the improvement of the vessel is only regarding payments for damages as written there, or for the betrothal of a woman as written in Even HaEzer siman 28, but not to extract more from the owners, even if he made it from his own.

An incident occurred regarding Reuven who said to a craftsman, "Make me such-and-such a thing and I will take it from you," and the craftsman made it and said to him, "Take the vessel and pay me," and he did not want to take it. And the vessel was a thing that if he did not take it immediately, the craftsman would suffer a loss. The Rosh, of blessed memory, ruled that Reuven is obligated to pay him by the law of garmi, since he suffered a loss based on his word, similar to "donkey-drivers went and did not find grain," where he pays them. For all matters of a worker, contracting, and craftsmanship do not require a kinyan and are established by mere speech at the start of the work. Therefore, the craftsman attends to the sale of the vessel, and whatever he receives less than what was agreed upon with him, he shall pay him [Sma]. And specifically when the craftsman made it from his own materials; but if he made it from the merchandise of the homeowner, and according to the view that a craftsman does not acquire the improvement of the vessel, even the exertion is not incumbent upon the craftsman but rather upon the homeowner [Shach].

Anyone who was appointed by the community, such as a Rav or a Shliach Tzibur or a Shochet u'Bodek or other appointments, and they made a document with them for such and such years regarding these details—if afterwards he hired himself out to this community, whether with the first leaders or with other leaders, to remain for another such and such time, and they did not speak regarding the details, he remains under the first details. And this is specifically when they did not mention the details at all; but if they mentioned some of them and did not mention others, he only has these details that they mentioned and not the others, for if their intention was for all the previous details, why did they specify these? [So it appears in the Shach, subsection 42]. And there is one who says that even if they fixed the wages and not other matters, he only has the wages and not the other matters. But it does not appear so, for the wages are the primary structure and therefore they mentioned this specifically, and nevertheless the other previous details remain standing. And even if they added to or subtracted from the wages, the other details remain in their force [and this is the intention of the Levush, and see the Shach]. And see what I wrote in section 15.

And even if at the conclusion of the duration of the contract they did not speak at all, but rather he remained in his place as before, he remains subject to all the initial conditions without addition and without subtraction. Just as with one who rents a house for a year and dwells in it a second year without specification, he dwells in it according to the first price, as I wrote in siman 312, so too in these matters. And so the great later authorities agreed, and they wondered at our teacher, the Rema, who wrote that specifically if he went back and hired himself out in the second year, but if he stayed with them in silence, we do not say that he remains subject to his initial condition. Thus far his words. And it appears to me that his intention is regarding the future time; for example, if he contracted with them for a year, and at the conclusion of the year he stayed for half a year in silence, it is certain that for the past half year it must be as in the first year, but regarding the second half, this one or that one can change. And in this, the law is true, as I wrote in the house there, section 24, see there. And according to what I wrote in section 15, this is only from the side of the worker, but from the side of the city they cannot change [it appears to me]:

A father who placed his son for work with a craftsman, even though the father does not provide him with sustenance, nevertheless, since the son knew that he placed him and the son entered into the work—even if he did not know upon which specific details he placed him—nevertheless, since he entered into his work by the word of the father, presumably it was pleasing to him what the father did, and he takes according to what the father stipulated until the time that he retracts, according to the law of a laborer who retracts. And he cannot say that he did not consent to his father's stipulation. And so too according to the poskim that with a kinyan or with a document he cannot retract, he also cannot retract, for it is as if he did it himself. And it is not specifically his father, for the same law applies to another man when he hired him out with his consent and he knew of this and entered into the work, he cannot change anything from what this man did on his behalf [Shach].

Any worker who was with an employer and the employer said to him, "Go from me," if he said it to him before two witnesses, or even if he said it to him privately and he does not deny that he said so to him, the worker is exempt without another mechilah; and even if he received from him the money for the entire hire, he is exempt [ibid.], for this is like a mechilah, as the worker's body is not acquired by the employer such that we would require a kinyan. And some say that if he said it to him by way of anger, he is not exempt through this; and so it appears, for things that a person speaks by way of anger have no substance. And a melamed with an employer, whose employer said to him, "Go from me," and the melamed consented, nevertheless the employer may retract and detain him; and even though a melamed's law is like a worker, nevertheless the father does not have the power to forgo the lien of study that the melamed is liened to the son, therefore there is no substance in the words, and even a kinyan and writing do not avail [ibid.]. And one who hired a worker and obligated himself in a fine if he retracts, it is an asmakhta, and when they act, they should act with a kinyan "from now" and in a prominent beit din so that it will not be an asmakhta, as I wrote in siman 207. But regarding a melamed, in any case it is not an asmakhta, for it is like "if I leave it fallow and do not work it, I will pay with the best," which was explained there that it is not an asmakhta [ibid.]. And therefore, also regarding other workers, if there is a loss to the employer in his removal, such as if he is very much in need of the work and it is impossible to obtain another worker for some time, it appears also that it is not an asmakhta in any case, and he becomes obligated in the fine. And there is one who says that regarding what was explained that if he said to the worker "Go from me," certainly his saying "Go from me" is not sufficient, and he must add and say "exempt," even if he received all the hire, it is not so, for regarding money and "I have nothing against you" [and so it appears from Rashi, Kiddushin 16:].