Reuven hired Shimon to do some data entry for him. After completing
the job, Shimon sent the computer disks with the data on them to Reuven
via a friend. On the way, the friend's attache case which contained the
disks was stolen from him, and all of Shimon's work was lost. Does Reuven
have to pay Shimon for the work done, if he will have no benefit from it?
Reuven called a repairman to come to his house to fix his washing
machine. The repairman arrived and spent an hour working on the machine
until he realized that it was not worthwhile to fix it. Does Reuven have
to pay the repairman for the time spent working on the machine, if
ultimately he gains nothing from it?
In the first situation, if the empty disks used by Shimon to enter the
data onto belonged to him (Shimon), he can not demand payment for his
work, even though the theft was through no fault of his. This is true even
if Shimon had no intent to charge Reuven for the disks.
However, if Reuven provided Shimon with the disks used, or if he acquired
the disks from Shimon before he commenced working, Reuven must pay Shimon
the wages he had agreed to pay for this work, even though Reuven receives
no benefit from the work.
In the second situation, if the repairman inspected the machine,
located the problem, and recommended that it not be fixed and that a new
machine should be purchased, he deserves to be paid whatever the going
rate for such an inspection is in that area.
If the repairman was unable to locate the problem and fix it, or if he
did not have with him the proper tools with which to fix the machine,
Reuven has no obligation at all to pay for this visit.
If the repairman had no idea of what the problem might be, and started
the machine running to inspect it while it was on, and caused that the
machine be irreparably damaged, he has no liability for the damage that
he caused. In this situation the owner of the machine is obligated to pay
for the visit, if the repairman requests it.
There are times that hiring someone to do work for you is considered as
if he is your employee, and the money paid to him is Halachically
considered wages, and there are times that it is considered as if you are
purchasing a service and money paid is considered payment for a sale. The
Ketzos HaChoshen (339:3), in the name of the Teshuvas MaHar"a Sasson,
explains that this depends on the following. If you were to hire someone
to do work for you and provide him with the materials necessary to do the
work, he is considered your employee. In this case, failure to pay him on
the day that he completes his work, would be a violation of the Mitzvah
of (Devarim 24:15) "On that day you shall pay him", which is specifically
stated regarding an employee. However, if the worker is expected to
provide the primary materials necessary for the job, even if the cost of
the materials is negligible in relation to the price being paid, this is
considered a purchase, and there is no specific Mitzvah obligating the
person that the work is being done for to pay on the completion date.
Therefore, in the first situation in our question, if Reuven provided
Shimon with the disks used for the job, he must pay Shimon the wages that
they had agreed upon. Although Reuven will derive no benefit from this
work, since the work was completed as requested, and Shimon as his
employee can not be held reponsible for a loss that occurs through no
fault of his (as is discussed in the Teshuvos Chasam Sofer, Choshen
Mishpat Siman 15), it is considered as if the theft happened after Reuven
took possession of the disks.
However, if the disks belonged to Shimon (the worker), this is considered
as if Reuven is interested in purchasing the disk that is custom made to
his specifications, i.e. with the data that he requires on it. Therefore,
until Reuven actually takes possession, he has no obligation to pay
Shimon for the disk that he never received.
(This is true in our case where the primary item being transferred from
Shimon to Reuven is the disk. In a situation where the primary item
belongs to Reuven but other materials used in customizing it belong to
the workman, he is considered an employee and must be paid even if Reuven
ends up not deriving any benefit from his work, as long as it is through
no fault of the worker.)
Regarding Question B, we must realize that when someone is contracted to
repair something, he is paid for the results that he produces for the
person who hired him, and not for the actual work done. Therefore, when
an electrician, plumber, or any repairman comes to someone's home and is
not successful in locating the problem and fixing it, according to
Halacha there is no obligation to pay for the labor or for the visit.
However, if the worker stipulated before coming that he expects payment
for the visit even if he can not repair the item, and this was agreed
upon, obviously he must be paid. Likewise, if the workman can prove that
it is customary in this place (Minhag HaMakom) to be paid even when
unable to locate the problem, the owner of the item must pay him.
If the repairman determined that it is not worth fixing the appliance, he
has fulfilled his job and must be paid for his visit and the time spent
in making this determination, since the owner of the item is making use
of his expertise.
If the repairman follows normal protocol for making repairs, and in the
process irreperably damages the appliance, he can not be held liable for
such damage (as is stated in Tosafos in Bava Kamma 27b D"H U'Shmuel).
Additionally, he has the right to expect to be paid for his visit, since
it is not his fault that he is unable to fix it.
This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av
Bais 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
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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!