Siman 334

It has already been explained that regarding any unforeseen circumstance that occurred to the work such that it was cancelled, whether both of them knew that it is the way of such an unforeseen circumstance to occur or both of them did not know, it is the loss of the worker. However, if the employer knows and the worker does not know, it is the loss of the employer, for he was negligent in sending them. And the reason is that since one cannot cast the negligence upon the employer more than upon the worker, the burden of proof is on the claimant and his hand is at a disadvantage [Tur]. And even seizing the object does not avail in this, for this is not similar to every claimant where seizing sometimes avails; for here, according to the fundamental law it is so: that when both of them knew, since the worker was also negligent, why should he pay him? And if both of them did not know, since the employer is also a victim of an unforeseen circumstance, it is from Heaven that it was decreed upon the worker that he should not profit [it appears to me].

Therefore, one who hires a worker to dig in his field and rain came during the night in a manner that he is unable to dig—if he showed him the field the previous evening, it is the loss of the worker. For since he saw it and recognized that it is not fit for digging if rain falls upon it, he should not have come, and he gives him nothing. But if he did not show it to him beforehand, he gives him his wage as an idle worker, because the owner of the house was familiar with his field and should have informed him not to come. And so too if the field was moist by its very nature, the law is such: that if he saw it beforehand and they did not realize that it is not fit for plowing, their luck caused it. And this is the opinion of most of our teachers [Rashi, Tosafot, the Rosh, Nimukei Yosef, and the Tur, Bava Metzia 76b].

The Rambam in the ninth chapter of Hiring wrote: If the employer inspected his work from the evening before and found that it required workers, the worker has nothing, for what was he to do? If he did not inspect it from the evening before, he gives them their wage as an idle worker. Thus far his words. And he holds that when the employer saw the field from the evening before, even though the worker did not see it, he is exempt, unlike the first opinion. And so it appears somewhat from the words of the Tur and our teacher, the Rema, in section 2; see there. And it appears to me that they do not disagree on the essence of the law, for certainly regarding a field whose nature is always not to change, the Rambam admits that his seeing it neither adds nor subtracts. For either way, if the rain that fell previously prevents all fields from being plowed, it is obvious that in all cases it is the loss of the worker, and what distinction is there between seeing from the evening before and not seeing, as I wrote in section 5? Rather, certainly not all fields are prevented from plowing by rain, but rather according to the ground in proportion to its moisture and softness. And since his field always stands in one state, what relevance is the employer's prior seeing? And certainly it depends on the worker's seeing. And the Rambam is dealing with a field that does not always stand in one state, for sometimes the rain ruins it and sometimes it does not ruin it, and it depends on its dryness and according to the proportion of heat and winds and such. And this is certainly so: when the employer previously saw it and found it fit for plowing even if rain should fall, but a change occurred afterward and it was ruined by the rain, everyone agrees with the Rambam that he is a victim of circumstance just like the worker, only that he must bring proof that it was fit previously. And furthermore, he is not dealing at all with the falling of rain, but rather that it was found moist, and likewise it is a case where it is not equal at all times. And also regarding the falling of rain, they all hold as I have written [it appears to me].

And similarly, one who hires a worker to irrigate his field from this river that is beside it, and the river ceased in the middle of the day: if it is not its way to cease, or even if it is its way to cease but the worker also knows the way of the river, it is the loss of the worker and the owner of the field gives him nothing, even though the homeowner also knows the way of this river. But if the worker does not know the way of the river and the homeowner knows, he gives him his wage like an idle worker. And specifically when the small river ceased, but if the large river from which all the fields of the city irrigate ceased, it is a regional plague, and the loss is always upon the homeowner [Taz], as I wrote in siman 321 and 322 regarding the law of a lessee, for a regional plague is a decree upon the owners of the fields, and even though they did not act negligently, they suffer the damage and not the workers. And as we explained there regarding a teacher where the ruler decreed not to study, see there. And there is one who disagrees in this, and his words are not clarified to me, and it will be further explained in section 10 with the help of Heaven.

And so too, one who hired a worker to irrigate his field and rain came at night in a manner that it does not require irrigation, he does not give him anything, even if he did not show the field to the worker from the evening, because most fields in the world, if rain falls upon them, do not require irrigation, and the worker also knew of this just like the employer. But regarding digging, there are fields that are not prevented from being dug even if rain falls upon them, as I wrote in section 3 [Sma]. And so too, if the rain came in the middle of the day, he does not give him anything from the middle of the day onward. And specifically rain, but if the water came from the great river by way of channels that extend to this field, he gives them their full wage, because the employer knows his field and he should have stipulated that if the river rises and irrigates it, he would not give him anything, for the worker cannot recognize this matter even if he is from the city and knows the nature of this land, because this matter depends on the manner of the extension of the channels. And since he did not stipulate, he caused his own loss, and Heaven assisted the worker so that he would not work and yet take his full wage, for it is as if he performed the work, and even though they sat idle, since the work was completed.

And even regarding the falling of rain, this is only regarding a worker, but regarding a sharecropper, such as one who stipulated with his sharecropper that if he irrigates this field four times a day he shall take half the produce, whereas all sharecroppers whose way is to irrigate twice a day take only a quarter of the produce, and rain came and he did not need to draw water and irrigate, he takes half as he stipulated with him, because a sharecropper has the status of a partner in this matter and not like a worker. And the reason is that for a worker, he must pay him his wage even if the field does not yield its fruit, therefore he pays him according to his labor; but a sharecropper, if the field does not yield fruit, he will take nothing, and therefore even when it produces fruit they give to him even more than his labor, for from Heaven they assisted him. And such is the law regarding a contractor and a lessee, and they share one reason.

Some say that in all that has been explained regarding it being the loss of the worker, this is only when he hired him for this specific work and for this specific field [Sma]. Therefore, when an accident occurred and the work was canceled from this field, it is the loss of the worker, for the employer can say, "I have no other work." However, if he hired him for work in general, he can say to him, "Give me another field that is still fit for this work." And even if the worker knows that he has no other work, nevertheless, he should not lose because of this, for in any such case, he should have stipulated, and since he did not stipulate, he should not cause the worker to lose. And when the employer has the authority to change him to other work will be explained with the help of Heaven in siman 335.

As has been explained regarding laborers, when the work was canceled due to an unavoidable accident, he is not obligated to pay the laborer unless the employer should have known of this and the laborer did not; so too is the law regarding a melamed. Therefore, one who hired a melamed for his son and the son became ill and the melamed's work was canceled, if the son is not accustomed to that illness and the father should not have known of this more than the melamed, and similarly even if he is accustomed to that illness but the melamed is a resident of the city and knows of this son that he is accustomed to illness, it is the loss of the melamed, just as with a laborer. And so too if the son died. But if he is accustomed to illness and the melamed is not familiar with him, such as when he is from another city, or even if he is a resident of the city but did not know him until now, it is the loss of the employer, and he gives him his full wage. And it is more stringent than a laborer, to whom he only gives as an idle laborer, for the reason that it is more pleasant for those who study Torah to study than to go idle. And it is obvious that if even during the cancellation of the student the melamed studied by himself or with others, behold he did not profit from this, and this is not comparable to all other labors. However, even this depends on the diligence of the melamed: if it is known that it is more pleasant for him to go idle than to study and he went idle, or if his study was easier than when he studied with the son, he only takes as an idle laborer, as I wrote in siman 335. And if there is a denial between them regarding the familiarity with the youth, if he has not yet taken the money, the father of the son shall swear and be exempt, and if he already took it, he shall swear and be exempt. And it has already been explained in siman 333, section 25, that the opinion of our teacher, the Rema, is that whenever it was canceled in the middle of the time and afterwards he returned to his work and the employer did not speak of deducting for him what he canceled, that he does not deduct for him in any case, and that there are those who disagree on this; see there.

The laws of melamdim were explained in siman 333 and will be explained in siman 335 and in Yoreh Deah siman 245 and siman 248, and there it was explained that a woman who hired a melamed for her son, even not in the presence of the husband, and when the husband heard he remained silent, it is certainly pleasing to him what she did, and he is obligated to pay all the tuition that was agreed upon with him from the day she hired the melamed [there in the Shach]. But if he protested immediately when he heard, there is nothing to her actions, even when she conducts business within the house. And it appears to me that nevertheless, the beit din can compel him if they see that he has the means to pay tuition. And even another person who hired a melamed for the son of Reuven in the presence of Reuven and he remained silent, silence is like admission, even though the other did not explicitly state that Reuven shall pay his tuition, for he should have understood that such was the intention; unless a wealthy man hired a melamed for the son of a poor man, for then even if the poor father was present at this, he certainly thought that the wealthy man would pay [it appears to me]. And see what I wrote in siman 81 and in siman 237 regarding whether there is hasagat gevul in the case of a melamed.

If a change in the air occurred in a city and they fled, they are like any other case of anuss, and the loss is borne by the worker or the teacher; so wrote our teacher, the Rema. One of the great authorities wrote that this is specifically when a minority fled, but if everyone or most of the city fled, it is a makat medinah and the loss is upon the employer, and he pays them their full wages as written in section 4 [Shach]. But it appears to me from the plain meaning of the language of our teacher, the Rema, that even if it is a makat medinah, the loss is upon them. And his reason, it appears to me, is that specifically when the worker or the teacher stands ready to do his work but the work was cancelled—such as the blockage of the great river mentioned in section 4, or if the students alone fled beforehand—but if at the time the plague developed the teacher also fled along with the students, the loss is the teacher's. And it is regarding this that our teacher, the Rema, is dealing, and that which he wrote "if they fled" means the teachers or the workers. And it is not like the law written in siman 321 regarding the decree of a ruler that they may not teach, for there the teacher is ready to teach but they do not allow him; and similarly in a change of air where the student or the task was removed from before him, since it is a makat medinah the loss is upon the employer. But when the worker or the teacher himself also fled immediately at the start of the anuss and removed himself from the work while he could still perform it, why should the employer suffer? For the reason that in a makat medinah the loss is upon the employer is because it was decreed against him from Heaven, and this is only relevant when the task was cancelled only from the side of the employer, and not when it was cancelled from the side of the worker and the teacher as well. And proof for this is that even in a makat medinah, if through great effort they are able to perform the work, the loss is upon them as written in siman 321; all the more so when they hurried to flee from the work, that the loss is upon them. [And the ruling of the Maharam brought by the Shach in subsection 3 is well-settled, though he wondered about it, see there and examine carefully].

Our teacher, the Rema, wrote in section 1: One who rented a house to dwell in and died within the period of the rental, he only needs to pay him for what he dwelt in, for the landlord is like a laborer and he should have stipulated; however, there are those who disagree, therefore if he received the entire rent, he does not need to return anything; so it appears to me. Thus far his words. The explanation of his words is that the first opinion holds that just as an accident that occurred in labor where both of them could not have known is the loss of the laborer, so too in an accident that occurred in the rental of a house, it is the loss of the landlord, for in this he is like a laborer who comes to extract from his fellow. And the "those who disagree" hold that it is not comparable to a laborer, for rental is like a sale for a time, and there is no claim of accident in this. And even though in a sale itself, when an accident arises the sale is voided, that is when the buyer has not yet taken possession of the purchase; but when he has already taken possession and the purchase was established, a subsequent accident does not void it. And even though it has been explained many times that rental is not like a purchase for every matter, nevertheless it is simple that to hold the period of the rental is like a purchase, and it is no worse than the law of ona'ah where its law is like a purchase. Therefore, our teacher, the Rema, ruled that due to legal doubt one does not extract money [and the difficulty of the Shach is well-settled, see there and delve].

One of the great authorities ruled regarding an incident that occurred during a time of plague, may the Merciful One save us, where the neighbors fled from the house rented to them, that they must pay the entire rent. And they questioned him, for in a case of a regional catastrophe, the loss is sustained by the landlord [ibid.]. However, we have already written in section 10 that this is specifically when the worker is in his place and the work was canceled due to the cause, and not when the worker fled due to the cause. And even though it was explained in the previous section that even in an unavoidable accident that is not a regional catastrophe, the loss is sustained by the landlord if he has not yet paid him, and all the more so when the accident is a regional catastrophe, it is not comparable. For certainly any accident because of which the renter left the house, even in a regional catastrophe, the loss is sustained by the renter, and even if he has not paid him, he must pay him the entire rent. For example, if the renter was forced to flee in the middle of his rental period, nevertheless he must pay the rental fees in full. It is only when he died in the previous section that it is different, for he is no longer alive that he may be sued. And when he sues his heirs, they can say: what are we to do? Since the work was canceled due to an unavoidable accident, it is your loss, just as with workers where the loss is theirs. And since you did not stipulate at the time of the rental that for any accident that occurs you shall be paid from the assets, we do not have to pay for an accident such as this where the renter himself is no longer in the world. And as for forcing them that they should dwell in it until the time, by what reasoning could he force them? As written in siman 312, section 10; see there.