TWO CLARIFICATIONS FROM RECENT ISSUES
By Rabbi Doniel Neustadt
The following is a discussion of Halachic topics related to the Parsha of the week.
For final rulings, consult your Rav.
A. TIMELY PAYMENT BY A YESHIVA
Several readers questioned the ruling quoted in a recently
published column about Lo salin - Timely Payment(1). We stated
that the prohibition of delaying payment does not apply to a
Yeshiva or other public institutions. Some readers understood
this to mean that a Yeshiva has no obligation to pay its bills
on time, and they took exception to that both on legal and on
moral grounds. Others simply wanted to know the source of the
ruling and to understand the logic behind it. Since the matter
bears explanation, I would like to clarify it:
Let it be emphatically stated that the ruling did not imply,
nor did it intend to imply, that Yeshivos do not have to pay
their bills on time. How and when the Yeshivos choose to pay
their bills was not the subject of the column. Rather, our
discussion centered on the definition and laws of the Biblical
mitzvah of Lo salin. This mitzvah requires an employer to pay
his worker before the day [or night] of his employment is over,
or on the day [or night] that his wages are due. But as is true
with all commandments of the Torah, we must turn to the Oral
Tradition and to the Codes in order to define the exact
parameters of the mitzvah and to understand when and where it
Shulchan Aruch(2) rules that Lo salin applies only when an
employee is hired directly by an employer. If, however, an
employee is hired through an agent who makes it clear that it is
the employer's responsibility to pay the employee's salary(3),
then no one transgresses Lo salin, not the employer and not the
agent(4). Rama adds that whenever an employee is aware that the
person doing the hiring is not the actual boss, but merely a
company agent, then Lo salin does not apply(5).
It follows, therefore, that for the Biblical prohibition of Lo
salin to apply, two conditions must be met: 1) The employee must
be hired directly by the employer, not by an agent or an agency;
2) there must be an "owner," one individual who is legally
responsible for paying salaries and bills. If there is any
ambiguity concerning who exactly is responsible, or if the
person responsible for paying is not the one who actually
promised the salary to the employee, then the Biblical
prohibition of Lo salin does not apply.
Based on this definition of terms, Harav S.Y. Elyashiv is
quoted(6) as ruling that if a public institution such as a
Yeshiva is late in paying its employees, the Biblical
prohibition of Lo salin was not transgressed. This is because a
Yeshiva is not a private enterprise which has one owner who is
responsible to pay the bills and salaries. Rather, a Yeshiva
generally has a board of directors who appoints a principal or
an executive director to hire the staff. The principal or
executive director are "agents" of a non-specific "owner" (the
board or the institution), who, according to the above-stated
guidelines set by the Shulchan Aruch, are not affected by the
prohibition of Lo salin(7).
But it is important to stress that we are defining the
parameters of one specific mitzvah only, that of not paying a
worker exactly when his work is completed or his pay is due.
This is a mitzvah with limited applications, whose purpose is to
show special sensitivity to a worker's needs and expectations.
This mitzvah has nothing to do with the overall obligation of
paying one's bills, debts, etc. in full and as soon as possible.
Anyone who deliberately and brazenly withholds a worker's salary
transgresses at least two different Biblical prohibition: You
shall not cheat your fellow (by depriving a worker of his
earnings - Rashi) and you shall not rob(8). Even an employer who
intends to pay his employee but dallies with him by making him
come back several times for his wages, transgresses a Rabbinical
prohibition based on a verse in Mishlei(9): Do not say to your
fellow go and come back go and come back and tomorrow I will
give you... This prohibition applies to anyone and everyone,
even one who technically does not transgress Lo salin according
to the very specific definition given above(10).
In addition to the above, a separate argument can be made for
exempting Yeshivos and other non-profit organizations from the
prohibition of Lo salin. It is all-too-well-known that Yeshivos,
etc., are not exactly cash-flow operations. When they are forced
to delay payment to their staff, it is because they lack the
necessary funds. Shulchan Aruch rules decisively (and this was
quoted in the earlier column), that an employer who has no money
to pay his employee does not transgress the prohibition of Lo
salin. Thus, Yeshivos who are late in payment would not
transgress this prohibition even if a Yeshiva is considered an
"employer" according to the guidelines stated above.
Moreover it may be argued that an employee of a Yeshiva knows -
prior to his employment - that it is possible that he may not be
paid on time. Since he took the job anyway - knowing that it is
a distinct possibility that he will not be paid on time - his
case is similar to that of an employee with whom the employer
has made an explicit pre-condition that he will not pay on time.
Such a condition is Halachicaly valid(11).
B. MEZONOS FOOD ITEMS AS ENHANCERS
Another issue which confounded some readers was a ruling quoted
in a recent issue(12) concerning the correct berachah rishonah
over mandelin, or soup nuts. The following rule was stated:
"Chicken soup with noodles or croutons: A shehakol is recited
over the soup and a mezonos over the noodles, etc. [Even though
they merely enhance the soup, a mezonos is still required]." It
was not explained, though, why the general halachah that a
blessing over a main dish (ikar) covers an enhancer (tafel) as
well - does not apply in this case.
The general rule that a blessing over an ikar exempts the
blessing of the tafel food does not apply when the tafel food is
a mezonos item made from the five species of grain. This is
because foods made from the five species of grain are considered
"important" and by their very nature cannot become tafel, or
secondary, to another food(13). Accordingly, even in cases where
the mezonos food is clearly enhancing the other food, e.g., soup
nuts in chicken soup; vegetable salad with croutons, the
blessing over the soup or salad does not "cover" the soup nuts
or the croutons(14).
An important exception to this rule, however, is when the
mezonos item is an absolute tafel. In certain, specific cases, a
mezonos item is used in a manner that renders it completely
"insignificant" and secondary. In these few cases, even its
prominent status as a derivative of the five species of grain
cannot help it maintain its significance and it becomes a
secondary food. We will cite several examples:
Using an ice-cream cone as a holder for ice cream, i.e., using
it merely in place of a cup, is considered an "insignificant"
usage. Although the cone is a mezonos item, its blessing is
"covered" by the shehakol on the ice-cream(15).
Taking the edge off whiskey with a piece of cake [or even bread]
is an "insignificant" manner of eating cake. No mezonos is
recited. [If, however, the cake is eaten for its own good taste
or to satisfy one's hunger, the blessing is recited(16).]
Adding matzah meal to a raw meatball mixture in order to bind
the ground meat or to give the meatballs a different color, is
considered an insignificant usage of a "significant" (mezonos)
item. The shehakol recited over the meat exempts the matzah meal
1 Makkos 24a.
2 Recently published in The Weekly Halachah Discussion, vol. 2,
3 C.M. 339:7.
4 SIf, however, the agent said that he is responsible to pay,
then Lo salin would apply to him.
5 For a deeper explanation of why we do not invoke shlucho shel
adam k'moso concerning this halachah, see Tosfos Rid and Ritva
to Bava Metzia 110b and Meshech Chachmah, Kedoshim 19:13.
6 Indeed, Shulchan Aruch Harav (Sechirus 18) rules that even
l'chatchilah one may hire workers in this manner so as to
sidestep the Biblical prohibition of Lo salin.
7 Avnei Yashfei 2:118.
8 Harav Elyashiv, however, was quick to point out that the
reverse is not true. We have previously stated that Lo Salin
applies to property rentals as well. Thus, if one owes a
property rental fee to a Yeshiva, he would transgress Lo salin
if the payment were late. Even though there is no specific
"owner" who demands payment, Lo salin still applies. Apparently,
the demand for payment does not have to come directly from the
9 Kedoshim 19:13. An additional pasuk in Ki Seitzei 24:14
states: You shall not cheat a poor or destitute hired person...
See Bava Metzia 61a and 111a for the Talmudic interpretation.
10 3:28. See Rashi ibid.
11 C.M. 339:7.
12 Shach C.M. 339:2.
13 Vaeschanan 5758.
14 O.C. 208:2. Rice and corn flour, however, are not included in
15 Mishnah Berurah 205:11 and 208:23. See also Magen Avraham
205:6 and 208:7. The shehakol over the soup should be recited
before the mezonos; ibid.