Rabbi Meir Orlian
Writer for the Business Halacha Institute
Q: I hired a contractor to remove debris from an old house I had demolished. This contractor offered a lower price than all the others I priced because he really wanted the work. After removing 10 truckloads of debris, he called me and said that he is not earning enough on the deal, so he does not want to finish the job, but he wants me to pay him for the work he did. I paid him what I owed for that work and hired a different contractor to finish the job, which ended up costing me a lot more than I would have paid the first contractor I had hired.
When I paid the first contractor, I told him that I was doing so lifnim mishuras hadin (going beyond the letter of the law). He disagreed, claiming that because I had paid him only for the work he had done, and I would not have found a cheaper price anyway, I actually gained from his removal of the first 10 truckloads at that low price.
Who is correct?
A: There are two types of workers, with differing halachos pertaining to each. One is a sechir yom, a day laborer, hired for a certain amount of time and is paid for that time no matter how much work he gets done. The other is a kablan, contractor, who is hired to do a certain task and is paid for completing that task, with the employer having no say regarding when he actually does the work (as long as he meets the agreed-upon deadline).
Chazal noted that in halachah, a day laborer is akin to an eved ivri (Jewish servant), because he is obligated to work during a specific time as per the employer’s instructions. He is therefore subject to the rule of “Ki li Bnei Yisrael avadim — Bnei Yisrael are servants to Me” (Vayikra 25:55), from which Chazal deduced (Bava Metzia 10a) that we are servants to Hashem only, and not to other humans, who are themselves servants of Hashem.
This rule establishes that a Jew may never be completely subjugated to another human being. A day laborer is, therefore, entitled to renege on his agreement to work at any point during the employment term, and the employer must pay him the amount due for the time he has worked (Shulchan Aruch, Choshen Mishpat 333:3; see BHI #544-545 for exclusions).
A kablan, on the other hand, who is not required to work at specific hours, is not akin to a servant. Rather, because his wages are due only when his work is done, he is similar to a seller, as he is essentially selling the product he created to the person who hired him. He is therefore not entitled to renege on the work agreement, and if he does, the employer has the upper hand in negotiating a settlement.
If the employer must now hire workers to finish the job, and he has to pay them more than the original kablan charged, he may deduct that extra amount from the payment of the kablan who reneged. Chazal determined that there is an implicit agreement between an employer and a contractor that should the contractor renege, the employer may deduct from his wages if he has to pay more to a new contractor (ibid. 333:4). In fact, even if the employer already paid the kablan the amount due for the work he did, he may now demand back the extra amount he has to pay the new contractor (ibid. 5).
The Rashba (Bava Metzia 76b) writes that this is true even if the initial kablan offered to do the work at a lower price than others, and if not for his offer, the employer would have paid more to any other contractor. Even in this case, the employer is entitled to deduct the extra amount he will have to pay the new contractor from the wages due to the contractor who reneged so that he does not have to pay, in total, more than he agreed to pay the first contractor (Chikrei Lev, Choshen Mishpat 2:80; Chazon Ish, Choshen Mishpat 23:31, explaining Shulchan Aruch 333:4).
Because Chazal said that during the initial agreement, the kablan agrees to have the wages he earned from the work he did garnished by the employer to pay for a new contractor if he reneges, that principle applies in this case as well (see Chazon Ish, Likutim to Bava Metzia 20:10.)
You are, therefore, correct in your assertion that your payment was lifnim mishuras hadin, because you were entitled to withhold the extra amount you paid the second contractor from the wages you paid the first one.
