Hilchos Choshen Mishpat

Volume I : Number 19

Travel Allowance

Sources:

The Pischei Teshuva in the Shulchan Oruch (ibid.1) quotes the Responsa of the "Teshuva MeAhava" that writes, "If the wife really requires the entire amount for her needs, but deliberately starves herself so as to keep the extra food or allowance for other needs, the wife is entitled to the extra money or food. Through her suffering she acquires the rights to it, since this was her intention."

In other words, we must make a distinction, as to why there is a surplus. If, generally, the wife requires a certain amount of money for food expenses, and this month she is able to purchase the food at a discount, the extra money must be returned to her husband. Her expenses are less this month and the allowance must be adjusted. But if the price of the food remains the same, but she chooses to eat less this month, whether it be to save money or to cut down on her own caloric intake, she is still entitled to the full allowance, since she is doing this clearly for her own benefit and not for her husband's benefit.

We can make a comparison between a worker's travel allowance and a wife's food allowance. If the employee chooses to "suffer" by walking to work rather than riding, he should be able to keep the travel allowance that he has acquired, since his intention is to endure the alternate travel arrangements for his own benefit and not for his employer's benefit. If, however, he finds a free ride to work, the allowance reverts back to the employer as surplus funds. Since there is no sacrifice in what he is doing, we only look at the fact that his travel expenses for this month are less, and the allowance should be adjusted accordingly, for the employer's benefit.

Although the argument can be made that the two allowances are not similar, because the husband's obligation to his wife is required of him by the Torah, whereas the employer commits himself entirely through his own free will, ultimately they are the same. Once the employer commits himself to providing the employee with the travel allowance, albeit voluntarily, and does not specify that he will only provide this allowance under certain conditions, this commitment becomes an obligation, just like the obligation of husband to wife. Therefore, if the original commitment is only to provide the allowance in exchange for receipts, or if the employer clearly said that the travel allowance is only for actual expenses incurred, the employee is not deserving of it even if he walks to work. However, if there was no such specific agreement, the employee is entitled to the allowance if he walks to work because he can then argue that he only chose to "suffer" by walking to work, for his own benefit. But if the employee only found a more convenient way of traveling to work at no cost, he has no such claim and the employer benefits.

If the agreement is that the employer pays part of the travel expenses, or that the employer says that he will provide the employee with a set amount every month to be used towards travel expenses, even if the employee finds a more convenient ride to work, he is permitted to keep the money. The reason is because the employee can still argue that his actions are only intended to save himself from his portion of the expense and not to save his employer's expense. Obviously, if the agreement is to reimburse the employee for part of _actual_ expenses incurred, then the employee still has no claim to this money.

This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av Bet Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His column originally appears in Hebrew in Toda'ah, a weekly publication in Jerusalem. It has been translated and reprinted here with his permission and approval.

This class is translated and moderated by Rabbi Aaron Tendler of Yeshivas Ner Yisroel in Baltimore. Rabbi Tendler accepts full responsibility for the accuracy of the translation and will be happy to fax originals of the articles in Hebrew to anyone interested.

Feedback is appreciated! It can be sent to atendler@torah.org.

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Please Note: The purpose of this column is to make people aware of Choshen Mishpat situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the presence of all parties involved!