Siman 339

It is a mitzvah to pay the wages of a hired laborer in its proper time, and if one delayed it, he violates the prohibition of "the wages of a hired laborer shall not remain with you" or the prohibition of "the sun shall not set upon him," as will be explained. And anyone who withholds the wages of a hired laborer and has no intention of paying him at all violates five prohibitions and a positive commandment. These are the prohibitions: "You shall not oppress your neighbor," "You shall not rob," "You shall not oppress a poor and needy hired laborer," "The wages of a hired laborer shall not remain with you," and "The sun shall not set upon him"; and the positive commandment of "On his day you shall give his wages." Even though you do not find all of them in a single case, as will be explained—for those that apply by day do not apply by night—nevertheless, in the matter of a hired laborer, there are five prohibitions and a positive commandment. And one who intends to pay but does not pay in its proper time violates one prohibition and a positive commandment. And one who pays in its proper time fulfills the positive commandment of "On his day you shall give his wages." And anyone who withholds the wages of a hired laborer, it is as if he takes his soul, as it is written: "And to it he lifts up his soul."

It is not specifically the wages of a worker who performed labor with his body, for the same applies if he hired out his animal to him or hired out his vessels to him—he violates all of these. We derive this from that which is written: "You shall not oppress a hired servant who is poor and needy, whether he is of your brothers or of your proselytes who are in your land within your gates." And this "which is in your land" is superfluous; we derive from it everything that is in your land—everything that you hire, whether man, animal, or vessels. Consequently, the other verses written regarding a hired servant apply to them, since they are called "hired." And there is one who says that regarding land he does not violate it, if he hired out land to him and did not pay him the rent in its time, because it is written "in your land" and not the land itself. And one cannot say that "your land" comes to exclude outside the land [of Israel], for this is a personal obligation and applies both in the land and outside the land [Tosafot Bava Metzia 111b]; rather, it is to exclude the land itself. And one cannot say that only in the Land of Israel does he not violate it regarding the hiring of land while outside the land he does violate it, for it is an a fortiori argument, and furthermore, regarding a personal obligation one cannot differentiate at all between the Land of Israel and outside the land. However, the primary ruling is that even regarding land he violates it [the Gra], as there is another derivation: "The wages of a hired servant shall not remain with you"—any labor that is with you. And so it is in the Mishnah there.

What is its time? For a day-worker, the employer has the entire night following the day to give him his wages, and if he did not give it to him by the end of the night, he violates the negative commandment of "the wages of a worker shall not remain with you until morning." However, regarding the negative commandment of "the sun shall not set upon it," he does not violate it, for we hold that wages are only payable at the end, which is from when the sun sets, and how could he violate this negative commandment? Rather, this verse comes for a night-worker, whose payment is at the end of the night and his time is the entire day, and if he did not give it to him by the end of the day, he violates "the sun shall not set upon it." And both of them, whether a day-worker or a night-worker, when they were not paid within the half-day cycle following the work, they also violate the positive commandment of "on his day you shall give his wages." And even though this verse is written regarding a night-worker, nevertheless, there is no logic to differentiate, and "on his day" means in its time [see there in Rashi, s.v. "and there is not in it," and examine carefully].

If he was a worker hired for hours, if his hiring concluded during the day, he has payment for that entire day, and if he did not pay him by the end of the day, he violates "the sun shall not set upon it" and "on his day you shall give his hire." For specifically when he must work the entire day, the obligation does not begin until after the conclusion of his work, in which case certainly his obligation is during the night; but a worker for hours of the day whose work was finished during the day before sunset, then the obligation of payment applies immediately, for it is a mitzvah to pay him then and that the sun shall not set upon it. And similarly, if his work concluded in the middle of the night, he has payment for that entire night, and if he did not pay him by morning, he violates "you shall not withhold." And for this reason, if he was a worker for a week or a worker for a month or for a year, where he does not violate until the time he established with him, it depends on the time he left: if the conclusion of his time was in the middle of the day, he collects all that day, and if he did not pay him, he violates "on his day you shall give his hire" and "the sun shall not set upon it." And if he left at night, he collects all the night, and if he did not pay him at the end of the night, he violates "you shall not withhold," as I have written.

Therefore, our teacher, the Rema, wrote that even though a day-laborer is not subject to the transgression of "the sun shall not set upon it" but rather "it shall not remain overnight," and his time is the entire night—this refers to their laborers who would work until nightfall, and it was impossible for them to transgress "the sun shall not set upon it." However, regarding our laborers, where the custom is that they do not perform work until nightfall and they depart from the work before nightfall, one transgresses regarding them because of "the sun shall not set upon it" and because of "on his day you shall give his wage," for this is like one who leaves during the day, who collects the entire day. But if it happened that he performed work until nightfall, even though he did not explicitly hire him to work until nightfall but rather hired him without specification, he does not transgress during the day, and his time is the entire night according to the law of a day-laborer; for presumably, it was with this intention that he hired him, and their intent was that he would work until nightfall.

Kablanut depends on whether a craftsman acquires title through the improvement of the vessel, for then the vessel is like his own and like one who purchases from him, and "do not delay" does not apply. But if a craftsman does not acquire title through the improvement of the vessel, he is like a worker, and the employer violates "do not delay" when he delivers the vessel to him and does not pay him; for as long as the vessel is with the craftsman, it is not relevant that he should violate it. And when he gave it to him, if he gave it to him during the day, he must pay him by the end of the day, and when he did not pay him, he violates "the sun shall not set upon it" and "on his day you shall give his wage." If he gave it to him at night, he is obligated to pay him all night, and if he did not pay him by the end of the night, he violates "do not delay." And we have already explained in siman 306 that most poskim hold that a craftsman does not acquire title through the improvement of the vessel; therefore, when one gave to a craftsman to make a vessel or to repair it and did not pay in its time, he violates a positive commandment and a negative commandment. And so ruled the Rambam, the Tur, and the Shulchan Aruch, and this is their wording:

If one gave his garment to a craftsman to repair it as a contractor and he finished it, as long as the garment is in the hand of the craftsman, he does not violate. If he gave it to him even in the middle of the day, once the sun has set upon him, he violates because of "bal talin" [not exactly, but rather "lo tavo"], for contracting is like hiring regarding paying him in his time. Thus far his words. And this is in a case of a homeowner who gave the wood or the iron or the goods from his own and the craftsman works on it, but if the craftsman provides everything from his own, this law does not apply and there is no "bal talin" in this [Ktzot HaChoshen]. And it is implied in the Shas [Bava Kamma 99a] that when the craftsman provides nothing, according to all opinions he does not acquire through the improvement of the vessel, and the dispute is when the craftsman provides from his own [and so wrote the Netivot HaMishpat in siman 306]. And it appears to me that the essence of the matter is thus: that the dispute is when both of them provide for the work, such as with tailors where the primary goods are given to them and the tailor provides from his own the threads and the hooks and small things; but with shoemakers, where the shoemaker provides from his own the leather and all the implements, it is like a sale. And when the craftsman provides nothing of his own, according to all opinions he does not acquire through the improvement of the vessel [however, I have a difficulty from there, 112a, where it asks regarding "alarkokhi" that this is "shivcha," and from Bava Kamma there is no proof for it is a mere rejection and we do not rule like Rabbi Eliezer there, and regarding the law there is no practical difference according to most of the poskim, and reflect on this].

From that which has been explained, that as long as the garment is in the hand of the artisan he does not violate "you shall not delay payment" even though an artisan does not acquire title through the improvement of the vessel, there is one who wished to learn from this that a homeowner who gives a worker a mashkon for his wages does not violate "you shall not delay payment" even if he has money. However, there is no proof from here, for the reason is not because the artisan is holding onto his own property and it is like a mashkon; rather, the reason is that as long as the artisan does not return the object to him, he has no right to claim payment, for how can he claim payment for the object from him when he does not return the object to him [see Sma, subsection 10]. But regarding a hired worker, or if he already delivered the object to him and is obligated to pay, if he has money, a mashkon is of no avail. For the reason regarding a hired worker is explicit in the verse, "because he sets his soul upon it," for this poor person needs to eat, and what will he do with the mashkon? Until he obtains money for it, he will starve. And since he has ready money, he is obligated to give it to him. And if he does not have money, it will be explained that he does not violate the prohibition. And it is possible that even in such a case, he is obligated to give him at least an object that he may take as a mashkon for his wages. And if the artisan desires to return the object to him and receive his wages, and he does not want to receive it and he has money, it appears that he violates the prohibition.

One who says to his agent, "Go out and hire workers for me," and he hired them and said to them, "Your wage is upon the homeowner," neither of them violates the prohibition of bal talin, for the homeowner did not hire them, and the agent, behold, told them that their wage is not upon him. Nevertheless, when they claim it from the homeowner and he has the money and is not preoccupied with his business, and he puts them off from one delay to another, he violates the negative commandment of the tradition: "Do not say to your fellow, 'Go and return, and tomorrow I will give,'" since he is obligated to pay them. And if the agent did not say, "Your wage is upon the homeowner," even if he also did not say, "Your wage is upon me," but rather hired them without specification, he is liable for their wage when he did not tell them that he is hiring them to work on his fellow's property, as was written in siman 336. Therefore, the agent violates bal talin. However, if the workers know that he is only an agent and the work is not his, he does not violate it even if he hired them without specification, for with that understanding they hired themselves out, to claim from the owners. And so too if his sons and daughters hired workers, the law is such. However, if his wife hired a worker, he violates bal talin, for his wife is considered like his own person [it appears to me].

It is written: "The wages of a laborer shall not remain with you until morning." "Until morning" is superfluous, for every remaining overnight is until the morning; therefore, our sages, of blessed memory, expounded that one does not violate "shall not remain" except upon the first morning. When this time has passed, the transgression he committed has passed, and he does not violate it further from this point forward. It is not like the mitzvah of circumcision, where from the eighth day onward one violates it every day. Nevertheless, he is obligated to give it to them immediately even afterwards, for he violates a negative commandment of tradition every moment that he delays.

A hired worker who has known this employer for some time, that it is not his way to have money in his possession except on the market day, and it is known that when people work for him they wait several days to receive the wages, this employer does not transgress even if it happens that he has money now. For since at the time he hired himself out, he hired himself out on this condition—not to receive money immediately—therefore he does not transgress even if he claims it from him now [Sma]. Furthermore, from the market day and onward he does not transgress, for this prohibition applies only immediately after the work. Nevertheless, he transgresses the prohibition of the Words of Tradition as I have written. And likewise, regarding employers who are known that when they hire workers they do not pay immediately until a clear accounting of the work is made and afterwards they pay, they do not transgress until they reckon with them, for they were hired to them on this understanding. And even if they claimed from him in its time a matter that he certainly owes him and does not require an accounting for this, nevertheless, since such is their way, the workers consented to this.

A homeowner does not violate "you shall not let remain overnight" or "the sun shall not set upon him" unless the worker claimed it from him or sent a messenger to claim it from him. However, without a claim, he does not violate, as it is written: "the wages of a worker shall not remain overnight with you," which implies that you are withholding it of your own accord while he is claiming it. And it appears to me that when he did not claim it on the first morning, he no longer violates it even when he claims it on the second day, as has been explained, for this prohibition is only at the conclusion of the time. However, regarding the prohibition of acceptance, he violates it when he has the money. And likewise, if he does not have the money, even though he claimed it, he does not violate it, for behold it is written "with you"—when it is with you. And see what I wrote in section 8.

If the employer assigned the workers to a storekeeper or a moneychanger to give them their wages that are due from him, and the storekeeper or the moneychanger took it upon himself to give to them, the employer no longer transgresses, and even regarding the negative commandment of acceptance he does not transgress. And even if the employer has nothing in the hand of the storekeeper, but rather he promised to give to the workers on his behalf, he no longer transgresses, for they have been removed from him. And all the more so the storekeeper does not transgress, for he did not hire them. And it is not specifically a storekeeper or a moneychanger, for the same applies to any other person, but it was the common way to assign them to a storekeeper or a moneychanger. And there is no difference whether he assigned them before the work, or in the middle of the work, or afterward. Nevertheless, if the hired worker desired to retract so as not to receive from them but rather from the employer, he has the right to do so, even if they did not retract, for there is no kinyan here, only mere words. Nevertheless, the employer no longer transgresses "do not delay," but regarding the negative commandment of acceptance he transgresses since he has the power to retract. And if they performed a kinyan from his hand, he cannot retract, as with any kinyan. And without a kinyan, he does not acquire even when it was in the presence of the three of them, since the storekeeper owes the employer nothing [Rif]. Therefore, if the storekeeper was indebted to the employer and he transferred it to him in the presence of the three of them, he cannot retract—neither the worker nor the storekeeper. And see what I wrote in siman 91 and in siman 89.

It is a measure of piety to be very meticulous regarding the payment of a worker's wages in its proper time, even in a case where one is exempt by law. Therefore, those who are meticulous have the custom to borrow money when they do not have funds and to pay the worker. In the Zohar, Parshat Kedoshim, it is very stringent regarding this. In Sefer Chasidim it is written that it is good to stipulate with the worker so as not to transgress "bal talin," and this is not considered a stipulation against what is written in the Torah, for it is within one's power to stipulate as much as he desires. And know that everything mentioned in this siman regarding "bal talin" refers to a day-worker, and regarding a night-worker it is "the sun shall not set upon him," and there is no difference between them in all the laws mentioned in this siman.