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Bava Metzia, 76

BAVA METZIA 76-79 - Ari Kornfeld has generously sponsored the Dafyomi publications for these Dafim for the benefit of Klal Yisrael.


QUESTION: The Gemara states that when one hires workers to do a particular job but decides that he no longer wants them to do the work, if he retracts after the workers have already gone out to the fields, then they are entitled to receive their wages (as much as an idle worker receives, "k'Po'el Batel").

Even though the employer retracted, the workers still did not do any work. Why, then, are the workers entitled to receive their wages?


(a) TOSFOS explains that the Gemara is discussing a specific case in which the workers -- prior to their arrangement with the employer -- certainly could have found work elsewhere yielding equivalent wages. Accordingly, the employer has caused the workers damage, since, as a result of his commitment to employ them, they did not take any other jobs for that time period. The employer, therefore, must pay them for their lost work because of "Dina d'Garma," the law of indirect damages.

According to Tosfos, the obligation is limited to this specific case in which the worker could have found other, equivalent employment elsewhere had he not committed himself to work for this employer, and now that he committed himself to work for this employer he can no longer find other work at the point when the employer retracts.

The KETZOS HA'CHOSHEN (333:2) questions this answer of Tosfos (he quotes the question in the name of his son, Rav Yosef Dov). Why is the employer obligated to pay the workers' loss of potential earnings? The Yerushalmi (5:3) teaches that if one "ties up" someone else's funds (rendering the owner unable to profit from them), he is exempt from liability, because it is considered an indirect cause of loss ("Garma") for which one is exempt. The same should apply in the case of an employer who "ties up" a worker, indirectly causing him to lose potential earnings from other sources. Why, then, should he have to pay the worker?

The Ketzos ha'Choshen answers that although it is only an indirect cause of loss, the employer still is liable because of the Halachah of "Sheves." In the laws of Nezikin, damages, when the damage that the Mazik did resulted in the loss of work and earnings of the Nizak, the Torah explicitly obligates the Mazik to pay for the lost earnings, despite the fact that it should have been considered an indirect cause of loss for which a person should be exempt. Thus, in the case of our Gemara, the employer is obligated to compensate for the loss of employment that he caused to the worker, due to the law of "Sheves."

Alternatively, we might answer that Tosfos learns like the RITVA. The Ritva (73b; see Insights there) learns that the employer is obligated to pay the worker for his lost employment not because of the law of Mazik, but because of the law of *Arev*, guarantor. Just as a loan guarantor is obligated to pay back the loan because the lender gave the money to the borrower based on the Arev's word (that he would guarantee the loan), so, too, the employer is obligated to pay the worker, because the worker lost other employment based on the word of this employer. Since the obligation to pay the worker is because of the law of Arev, the fact that it is an indirect cause of loss ("Garma") is not relevant. According to the Ritva's understanding of our Sugya, the question of the Ketzos ha'Choshen is answered.

(b) The RAMBAN agrees with the ruling of Tosfos with regard to the employer's obligation to compensate the workers for damage he indirectly caused them, but he asserts that the Gemara need not be limited to the specific case that Tosfos describes. Even in a case where the workers (prior to the contract with this employer) could *not* have found employment elsewhere, the employer is still liable to pay their wages. The reason for this is that once the worker has already begun his job (such as by walking to the field), the transaction between the worker and the employer is consummated. This Halachah is the same as the Halachah in a case of a standard sale -- once a buyer has made a Kinyan, he may not retract and is obligate to pay the full price.

The SHULCHAN ARUCH (CM 333:2) rules in accordance with the Ramban. (Y. Marcus)

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