Siman 335

One who hires a worker to perform labor for him for one day or for several days and did not specify with him which labor, he may give him any labor that he requires and may change him from labor to labor. Even if he gave him a light labor during the first half of the day, he may afterwards give him a heavy labor; even if he still has work in the light labor, nevertheless, the authority is in the hand of the employer since he said to him "labor" without specification. However, if he hired him for a known labor, such as if he hired him to hoe his field, he cannot switch him to another when he has this labor, even if it is not heavier than it. And if this labor was completed in the middle of the day, if he has to give the worker a labor such as this or one lighter than it, such as from hoeing to weeding and the like, he can compel him to do it, and the worker cannot say "I only hired myself out for hoeing," for since this labor was completed, he can switch him to another like it. And also even at the beginning of the labor, if he saw that this labor is not possible to perform, he may give him another like it. But to give him a labor heavier than that for which he hired him, he cannot compel him, and he gives him his wage as an idle worker. And he may take such a labor from another and give it to him to perform, and the authority is in the hand of the employer to do so, for what does it matter to the worker if this labor is his or belongs to others.

From the Tosefta [Bava Metzia ch. 7] it is explained that even though he may give him the work of his fellow, nevertheless he cannot compel the worker to do so, for the worker can say, "Pay me for what I have done until now and I do not wish to do the work of others." For it was taught there: One who hires a worker and he finished his plowing in half a day, and he showed him work in that of his fellow, he can say to him, "Either provide me work from your own or give me what I have earned." Thus far his words. And even though regardless of this a worker may retract in the middle of the work and receive his wage for what he has done, nevertheless there is a practical legal difference, such as where he took an oath or performed a kinyan sudar or a deed according to the opinion of the Rishonim that was explained in siman 333, section 8; see there.

And even though it has been explained that he cannot give him heavy labor, nevertheless, some say that if he wishes to increase his wages, he must perform even heavy labor. And if he does not desire this, he does not need to give him as an unemployed laborer. And a similar case was explained in siman 333, section 2, and from this is a proof that the primary view is like the first opinion mentioned there, as I wrote there. And the reason is that we are witnesses that every laborer is pleased with an increase in wages, even though the labor is somewhat heavier.

Regarding that which has been explained, that if he hired him for a known task and it was completed in the middle of the day, the employer has the right to give him another task similar to it, and if he does not give it to him, he pays him as an idle worker—this is specifically when he did not show him that task initially, but rather hired him without specification for one day to do such-and-such a task, for then he is obligated to provide him with work for the day. But if he showed it to him, and the worker saw that there was not a day's work in it, and he did not stipulate that when it is completed he should give him another task, he gives him nothing after he has completed it, as is written in siman 334, for regarding anything that both of them know, the worker must stipulate. And it appears that this is specifically when at the time he hired him, he said to him, "I am hereby hiring you for the day to do this task for me that you see," for the worker can say, "I said to myself that presumably you have work in another place similar to this work." [And it appears to me that this is the intention of the Sma in subsection 2, and the difficulty raised by the Taz is answered; see there and examine carefully].

In every place where one must pay him as an unemployed worker, which is less than one who performs labor, this is specifically regarding ordinary people. However, if this worker was of the tillers of the soil or of the diggers and their like, whose way is to exert themselves greatly, and if they do not perform labor their health weakens, he gives him his entire wage in full, for he does not take less for sitting idle. Nevertheless, he cannot claim more with this argument. And similarly regarding a teacher where the student fell ill, where the father knew of his illness and the teacher did not know, such that the loss is upon the father as was written there, he must also give him his wage in full, for those who study Torah weaken when they go idle; and besides this, "the precepts of Hashem are upright, rejoicing the heart." And even if he has other students with whom he studies, he cannot deduct for him the exertion he would have had with this student, for "speech to one is speech to a hundred," and no additional exertion would have been added upon him if this one had also been studying. Nevertheless, this which we wrote is not a general rule that regarding those who study Torah the concept of an unemployed worker does not apply, for our teacher, the Rema, wrote that this is specifically if it appears to the beit din that he enjoys his study more than his idleness; but if it appears to the beit din that idleness is more comfortable for him, he gives him only like any other unemployed worker. Thus far his words. However, even in this case, when he has other students, he is indeed not going idle.

And even though it has been explained that regarding labor, he may give him other labor of equal value, nevertheless, regarding a student who fell ill, the employer cannot give him another student to learn with him in place of the first. For the study of Torah is not like other labor, as there is a student who understands and is easy in his learning, and there is a student who burdens much; therefore, he cannot compel him to accept another. And some say that if he gives him another student who understands and is as sharp as the first, he is obligated to learn with him, but not one more difficult than him. And our teacher, the Rema, ruled accordingly. And it appears to me that if he gives him one more difficult than him, but that he should learn with him a subject easier than what he learned with the first, that he can also compel him, for this and that are the same exertion. And if they hired him without specification to learn with such and such number of youths and one fell ill, he may give him another more difficult than him, for this is like one hired for labor without specification [Sma]:

Some say that one who teaches Torah to the son of his fellow without the father's knowledge is liable to pay him according to the law of one who descends into the field of his fellow without permission. And some disagree regarding this, as a mitzvah is different, and he cannot compel him for a mitzvah to pay him for this. And such is the primary view [Shach]. And so it is proven from what has been explained in siman 334, section 9, and in Yoreh Deah siman 248, see there. And the beit din can compel him as is written there. However, if one said to a teacher, "teach my son and I will pay you," and he did not fix a wage for him, he is liable to give him the price according to what others of his standing pay for such a student, and even when his wife or another hired the teacher, as is written there.

An incident occurred involving a homeowner who hired a melamed for his son and told him to go to his relative to test him to see if he was able to study with the youth, and he did not go. After he studied with the youth, one witness testified that he did not know how to study with him, and the melamed says that he should send him now to test him. They tested him and it was found that he knew. The Mordekhai [chapter 9 of Bava Batra] ruled that the law is with the melamed, for since he knows now, he presumably knew originally as well. Furthermore, just as we say all who are commonly found near slaughtering are experts, so too all who hire themselves out for a specific craft are experts in this craft. Furthermore, regarding a matter that is destined to be revealed, people do not lie. If there were no witness to contradict him, he would take his payment without an oath, and now that there is a witness here, he swears against the witness and takes his wages. This is not a Torah oath, for a Torah oath is to swear and be exempt, and not to swear and take. And it appears to me that this law applies even according to the opinion explained in siman 251 regarding the gift of a shekhiv mera, where when the recipient says "he was healthy" and the giver says "he was a shekhiv mera," the burden of proof is on the claimant even though he is healthy now and we do not follow the present status; nevertheless, they would agree in this law because of the other reasons we explained.

Our teacher, the Rema, wrote: A rav who was in a city for several years and issued rulings for the community, and afterward they fixed a salary with him for the future, he cannot claim payment for what has passed, for he certainly waived it to them. Thus far his words. And it appears to me that this law applies only to a rav, who by Torah law must judge and issue rulings for free, and only because the rabbanim have no other business is it considered like payment for idleness, as is written in Yoreh Deah siman 242. Therefore, when he fixed a price for the future, he cannot claim for the past, for this is certainly like a waiver that he performed according to Torah law. However, in all other crafts, when one fixed a price for the future, he can claim for the past as well, for he is no worse than one who enters a field without permission who takes his payment; and why should he lose out because he fixed a price for the future? And this is not like a standard waiver, for it is possible that he fixed the price for the future specifically so that his hand would not be at a disadvantage like the law of one who enters without permission, as is written in siman 375.

One who hires a worker to do something for him as a contractor, and the worker accepted upon himself any accident that might occur, such that the responsibility is upon him until he completes his work, he is liable for all accidents. Nevertheless, if an accident occurred that is not common at all, he is exempt, for we are witnesses that he did not enter into this agreement on such a basis. And what constitutes an accident that is not common depends on the assessment of the beit din; and see what I wrote in siman 225 with the help of Heaven.

Our teacher, the Rema, wrote in section 1: One who hired a horse for eight days to go to a certain place, and when he had gone for two days he reconsidered and returned to his place, he may do with the horse whatever he wishes during these six days, such as hiring it out in the city to bring wood or other labors designated for horses in that city, even though this labor is heavier than the first, for it is preferable to him that his animal be in his city and perform heavy labor than that it go to a distant place. Thus far his words. And we have already explained in siman 309, section 5, that this is specifically when the labor is not so heavy and he does not explicitly protest, and that the renter or one of the members of his household is engaged with the horse, for if not so, the renter is not permitted to hire it out. See there.

An agent's status is like that of a worker, and all the laws that were explained regarding a worker when his work is canceled likewise apply to an agent when his agency is canceled. For example, if one sent an agent with a letter and, upon leaving the city or halfway through the journey, he found the man to whom the letter was sent and returned, the agent receives nothing. For behold, [the sender] derived no benefit at all from his agency, and he did not complete his agency. This is not comparable to the donkey dying in the middle of the way where one must pay him for the distance traveled thus far, as written in siman 310, for there he derived benefit from the travel thus far, but here he derived no benefit at all. This is a matter where the sender also could not have known, and it is the loss of the worker, unless the sender should have known that this man needed to come and the agent did not know, for then it is the loss of the sender, as written in siman 333 and 334 regarding a worker. And some say that since the purpose of the agency was to bring the letter to that man, and he brought it to him, it is possible that he must pay his entire wage [Sma]. It is only when an accident occurred where he was unable to go, such as being accosted by bandits or the like, that it is the loss of the agent when the sender also did not know of this; but regarding his encountering that man, why should he lose? And it is simple that in any event, for the half-way that he traveled, he is obligated to pay him, and so it appears primary [it appears to me].

An agent who performed his mission, even though no benefit resulted from his mission at all—for example, one who hires a worker to bring him some item and he went there and did not find the item, or if he sent him to deliver a letter to Reuven and he went there and did not find Reuven and returned empty-handed—he gives him his full wage, for behold, he performed his entire mission. However, if he commanded him to bring him a heavy item, he deducts for him a bit of the exertion, similar to what was written regarding "as an idle worker," unless the agent is of those people who desire to exert themselves. And so too, if he hired him to bring medicines for a sick person, and he went and brought them and found that he had died or recovered, he pays him his full wage. And so too in any similar case. And not only this, but even if he hired him to bring the sick person apples or other fruits, and he went and brought them and found that he had died or recovered, he cannot say to him, "take what you have done for your wage," for regarding a worker one is not able to say so, as has been written in siman 336.

And one should not raise a difficulty that if so, why was it explained in the previous simanim that when the work was cancelled due to an unavoidable accident—such as one who hired a worker to plow his field and he went and found it moist—that he does not pay the worker, and yet he performed his mission just as we say regarding a messenger in the previous section? It is not comparable, for here the essence of the labor is the travel; even though the purpose is the bringing of the item or the taking of the item, nevertheless, were it not for the distance of the place, he would not have needed a messenger. Therefore, when he performed his labor, he pays him. This is not the case regarding fields, where the labor is the engagement with the field, and if he did not engage, he does not need to pay him unless the owner of the field was negligent, for he should have known, as I have written. And likewise we wrote in siman 333, section 4, that if one hired donkey-drivers to bring him grain from a distant place and they went and did not find any, that he pays them their full wage, see there, except that he deducts for them what they came back empty and did not have so much exertion [what the Sma wrote in subsection 8 requires further study].

An incident occurred regarding Reuven who hired Shimon to serve him during his journey, and Reuven died halfway through the journey; the Rashba, of blessed memory, ruled that they must pay Shimon his entire wage. And an incident occurred regarding one who sent a messenger after his wife so that she would come to him, and the messenger went but she did not want to come; the Rosh, of blessed memory, ruled that he is obligated to pay the messenger in full, for the messenger has no involvement in the fulfillment of the matter, and everything is based on the reasoning that has been explained; and see what I wrote in siman 182 and 264.