Q&A: The Logic Behind the Distinction in the Law of Hiring Workers
The Logic Behind the Distinction in the Law of Hiring Workers
Question
Among many halakhic decisors, we find a distinction in the halakhic law of “hiring workers” between a case where one hired a worker for the sake of doing a particular act, and a case where one hired him to refrain from an act. In the first case he is obligated to pay him, whereas in the second he does not need to pay unless a formal acquisition by symbolic act was made. My question is: what is the reasoning behind this distinction?
P.S.
There is indeed an opinion that distinguishes between mere non-prevention of an action and an action that necessarily causes an action—for example, “don’t go outside,” which basically leaves the person where he is, as opposed to refraining from something that still leaves open many actions—for example, “do not participate in a certain tender.” But I am ignoring this approach.
Answer
I’m not familiar with this distinction, but if both sides agreed that he would work without pay, then there is no need to pay in either case. And if they agreed on payment, then of course one must pay in both cases. So what exactly is the case under discussion? That there was no reference to this in their contract? I do not see a difference between the cases.
It is possible that there is a difference regarding what activates the contract, since the acquisition involved in hiring a worker is connected to the tools he uses or to the beginning of the work. In the case of a worker hired in order not to do something, there are no work tools and no beginning of work, and therefore there is room to say that a formal symbolic acquisition is required. But as stated, that is a difference that is not specifically related to payment of wages for the work, but rather to the contract’s taking effect.
In practice, in these matters everything is determined by civil law and not by Jewish law.
Discussion on Answer
Everything I wrote still stands.
Meaning, you do not accept the distinction?
You claim that the distinction is rooted in the contract’s taking effect? And if so, what is the reasoning for saying that the contract is rooted in the work tools, and not in the significance of the actual content of the activity itself?
I do not accept it unless they mean my distinction. Their intention is not entirely clear to me.
I didn’t understand your question. I said that in my opinion there is no difference what you are required to do, as long as you agreed on the work and the pay. Why should there be a distinction?
A quote from the book Mishpetei HaChoshen on the Shulchan Arukh, Choshen Mishpat, p. 6:
“Many halakhic decisors hold that if one fixed wages with someone in exchange for refraining from doing a certain act, even though he gains profit and benefit from the fact that the other person refrained from that act, this is not considered ‘hiring workers,’ and the employer is exempt from paying the worker. For hiring workers applies only when one hires him to do a particular act in the mode of positive action, but for refraining from an act—for example, if he told him that if he does not go to a certain meeting he will receive such-and-such as his pay—he is not obligated to pay him unless he committed himself through a formal symbolic acquisition.
And there are those who disagree with this [Minchat Pitim, sec. 176; and see Responsa Devar Yehoshua, vol. 6, sec. 16, and more]. And some contemporary judges wrote that if one stipulates with his fellow that he sit in a certain place, since he restricts him to being in a specific place, this is considered hiring workers through positive action, and according to everyone this does fall under ‘hiring workers’ [Pitchai Choshen, ch. 8, note 3; Teshuvot VeHanhagot, 3, sec. 470, letter 60].”