Retaining a Worker's Wages

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Payment by Proxy

The Gemora discusses the dispute of Rav Sheishes and Rabbah as to whether a worker can return to his employer when he directed him to a proxy for payment.

The Rishonim discuss the exact parameters of this dispute, and present different options.
1. If the worker explicitly agreed to forgive the employer, regardless of the whether the proxy pays him, all agree that the employer is not liable at all. If the worker conditioned his forgiving the wages on receiving the money from the proxy, all agree that he may return to the employer if the proxy did not pay him. The dispute is in the case where he accepted the arrangement, with no explicit declaration, and the proxy now refuses to pay. Rav Sheishes and Raba dispute whether the proxy has a status of a guarantor or not. Rav Sheishes says that he is a guarantor, and is obligated to pay, and therefore, the worker relied on him, and forgave his employer. Rabbah says that he is not a guarantor, and the worker did not rely on his payment. [Tosfos 112a Chozer, explanation 1]
2. The case in dispute is when the worker agreed to forgive the wages if the proxy pays, but the dispute is whether the worker can claim his wages from the employer before the proxy pays. Rav Sheishes says that as long as the proxy has not refused to pay, the worker's forgiveness is in effect, and he may not return to the employer. [Tosfos, explanation 2, Rosh]
3. Both Rav Sheishes and Rabbah agree that the worker may claim his wages from his employer. The dispute is whether the employer now will transgress bal talin. Rav Sheishes says that once he's removed the bal talin prohibition by directing the worker to the proxy, it may not return, while Rabbah says that bal talin is removed only while the worker is dealing with the proxy, but returns once the worker returns to the employer. [Tosfos, explanation 3]

The Yerushalmi (brought by the Rif and Tosfos) seems to rule like Rav Sheishes, but the Rishonim rule like Rabbah. However, if the employer had a debt owed to him by the proxy, and transferred that debt to the worker in lieu of his wages, the worker now owns the debt through ma'amad shloshton, and no one may back out of the arrangement.

Tosfos learns from the discussion of this case that one need not make a kinyan transaction to effect binding mechilah – forgiveness of a debt.

In all three explanations, the dispute does not relate to whether the worker's forgiveness is valid, but rather the parameters of the forgiveness, or other prohibitions.

Tosfos explains that a pesharah - compromise judgment does need a kinyan, since each side does not know what they are forgiving before, so their forgiveness is akin to a mistaken one, which is not binding without a kinyan.

The Rosh suggests that a kinyan is needed to be able to enforce the pesharah afterwards, not to make the forgiveness binding.

Bal Talin and Contracted Work

The Gemora tied the question of bal talin on contracted work to the question of whether a craftsman owns the improvement of the item.

Tosfos (112a Uman) says that although Rav Sheishes answered that a contracted worker's wages are subject to bal talin, he holds that a craftsman does own the improvement of the item. Rav Sheishes simply meant that some contracted work – e.g., shaking a garment for a set fee per shake – is subject to bal talin.

Extending a Worker's Oath

The Gemora says that if the worker brings witnesses that he claimed his wages at the end of his alloted period, he now has an extension of the period to swear and collect.

Rashi learns that this is a one time extension, for a period of a full day.

The Rambam (Sechirus 11:6) says that this extension can occur multiple times, and each extension is for the next time period – a day or night period – after the claim. See Sma HM 89:13 for an alternate reading of the Rambam.

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Land and Slaves

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The Mishna says that slaves share the status of land regarding the exclusions listed. Therefore, a sale of a slave is not subject to the rules of ona’ah. Abaye says that a rental is subject to the rules of ona’ah, since it is equivalent to a temporary sale.

The Rishonim explain that Abaye is only referring to rental of items whose regular sale is subject to ona’ah, but rental of land is not subject to ona’ah, similar to a permanent sale of land.

The Rishonim discuss whether hiring a worker is subject to ona’ah. The Ramban and Rashba say that hiring a worker is not subject to ona’ah, since the Torah states that ona’ah applies when buying or selling a “mimkar” - a sale item. When hiring a worker, there is no sale item per se, and therefore no ona’ah.

The Rambam (Mechira 13:15, 17) says that hiring a worker is not subject to ona’ah, since it is akin to renting a slave. Since buying a slave is not subject to ona’ah, renting one – which is a temporary sale – is also not subject to ona’ah. However, the Rambam says that when hiring a worker for a project, as opposed to hourly work, ona’ah does apply, since such a transaction is not considered a temporary sale of a slave, but a proper transaction of merchandise.

The Drisha (227:47) explains that a slave is defined by his time being owned by his owner. Therefore, an hourly worker can be considered temporarily enslaved, since during his employment period, his time is owned by the employer, while a project worker is not even temporarily enslaved, since his time is always only his. Since the Rambam exempted employment as a function of a slave’s exclusion, project work, which is not similar to a slave’s work, is not exempted. However, the Ramban and Rashba offer a more fundamental reason to exempt employment from ona’ah, and therefore apply this to all types of employment, including project work.

This dispute among the Rishonim would seem to depend on a general dispute among the Rishonim about exclusions of slaves. Rashi (Kiddushin 7a, 28a) and Tosfos (Megilla 23b Shamin) say that whenever the Gemora makes halachic statements about slaves, this applies to any person, even if he is free. Therefore, the Gemora (Kiddushin 7a) considers a wife being betrothed to be equivalent to real estate (as far as modes of acquisition), and the Gemora (Kiddushin 28a) treats someone’s claim that one is his Jewish slave to be equivalent to a dispute over land (as far as swearing). Tosfos (Kiddushin 7a, 28a) and the Ritva (Kiddushin 28a), however, say that the categorization of slaves as equivalent to land only applies to Kena’ani slaves, and not to free people, or even to Jewish slaves. The Tur and Shulchan Aruch (HM 227:33,36) rule like the Rambam.

The Shach (HM 95:18) rules that the halachic rules of a slave apply to all people, since the Torah is simply using slaves as a vehicle to explain that human acquisition is equivalent to land acquisition. In general, only Kena’ani slaves are acquired, which is why the Torah used them to teach this rule.This is consistent with the position of the Shulchan Aruch.

The Kovetz Shiurim (Bava Basra 310) suggests that the Rambam may not rule that the laws of slaves apply to all people. However, this is because only a slave can be truly permanently acquired, while other situations (e.g., a wife or Jewish slave), are only temporary, and cannot be compared to land. However, in regard to ona’ah, the exclusion of a slave also excludes hourly employment. Abaye explained that ona’ah applies to rental, only since it is considered a temporary sale. Therefore, a rental is subject to ona’ah where an equivalent permanent sale is subject to ona’ah. Although the employee does not have the rules of a slave, and cannot be permanently bought, employment’s theoretical permanent counterpart would be enslavement, which is not subject to ona’ah. Therefore, the temporary sale of employment cannot be subject to ona’ah, since ona’ah derives from considering a rental as a temporary sale, as Abaye stated.

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