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Bava Metzia, 111

1) APPOINTING A "SHALI'ACH" TO HIRE A WORKER

QUESTION: The Gemara cites a Beraisa which says that when an employer tells his friend to go and hire workers for him, neither the employer nor his friend transgresses the Isur of "Bal Talin" when the payment of worker's wages is delayed. The employer does not transgress because he did not hire the worker himself, and his friend does not transgress because the worker is not doing work for him.

Why, though, should the employer not transgress "Bal Talin" if he delays paying the worker? He appointed his friend as a Shali'ach to hire the worker, and thus it is as if he himself hired the worker! (TOSFOS RID, RITVA YESHANOS)

ANSWERS:

(a) The TOSFOS RID answers that when workers do not see the employer who is hiring them, they do not rely on the employer to pay them promptly upon their completion of the work. Therefore, when an employer hires workers through a Shali'ach, even though the workers trust that the Shali'ach was appointed by the employer to hire them, there is an understood, unstated agreement that they allow the employer to delay paying their wages and that they forego the claim to prompt payment.

The Tosfos Rid's explanation might be based on the Gemara that follows. Rav Huna teaches that the market-goers of Sura do not transgress "Bal Talin" if they do not pay a worker when he finishes his work, because the workers know that their employers will not have money with which to pay them until the market day arrives. The market-goers do transgress, however, the Isur of "Bal Teshahe." This Gemara might be the source for the Tosfos Rid's logic that one does not transgress "Bal Talin" when there is an unspoken agreement that the employer will not pay the worker at the time that the work is finished.

(b) RASHI (110b, DH Zeh) writes that since the employer did not hire the workers personally, the workers are not called his "Sachir." Rashi seems to be explaining that when the Torah uses the word "Sachir" it is referring to a person to whom the employer personally speaks and hires (and not to a person hired by a Shali'ach). (See also BACH, Choshen Mishpat 339:6.)

Rashi might mean that although a Shali'ach is considered equivalent to the Meshale'ach, the person who appoint him, with regard to the Kinyan that he effects, the Shali'ach is *not* considered like the Meshale'ach with regard to personal actions that he does which do not effect a Kinyan. For example, a Shali'ach cannot wear Tefilin or sit in a Sukah on behalf of another person (see at length TOSFOS RID to Kidushin 42a, and KETZOS HA'CHOSHEN 196). When the Shali'ach speaks to the workers, it cannot be considered as though the one who appointed him has spoken to the workers, even though it is considered as though the Meshale'ach hired them and obligated himself to pay them for his work.

The argument between Rashi and the Tosfos Rid might be based on their understanding of the Isur of "Bal Teshahe." Even though a person who hires a worker through a Shali'ach does not transgress "Bal Talin" when he delays the worker's wages, it is clear that he transgresses the Isur of "Bal Teshahe" if he delays payment; he is not permitted to delay, l'Chatchilah, his worker's wages indefinitely. The Rishonim write this explicitly (see TOSFOS and TOSFOS HA'ROSH 111a, DH Amar Lei, and Shulchan Aruch CM 339:7). According to the Tosfos Rid, we may conclude from this Gemara that even when the workers allow the employer to delay payment, nevertheless -- when the employer has the money with which to pay, he must pay his workers as soon as he can because of his own obligation of "Bal Teshahe."

Rashi may have explained the Gemara differently, because he holds that if the workers forego the prompt payment of their wages, then the employer would be exempt from "Bal Teshahe" as well (as the SHACH in Choshen Mishpat 339:2 cites from the SEFER CHASIDIM). That is why Rashi explained that the employer is exempt from "Bal Talin" because of a technical point; the worker is not called the employer's "Sachir." When the employer is exempt from "Bal Talin" because of a technical point, the Isur of "Bal Teshahe" still applies and obligates the employer to pay his worker promptly (as the Gemara teaches (110b) with regard to an employer who does not pay his workers the first morning after their work has finished).

The Tosfos Rid may have found a source for his ruling that "Bal Teshahe" applies even when the workers' forego their right to prompt payment from the Gemara mentioned above about the market-goers. The Gemara says that even though the market-goer does not transgress "Bal Talin," he does transgress "Bal Teshahe." The ME'IRI explains this to mean that the market-goers do not transgress "Bal Talin" until the day of the market. Once the market day passes, though, they *do* transgress "Bal Talin" if they do not pay, since that day is considered the first day of their obligation to pay (which is the only day for which "Bal Talin" applies). When the Gemara says that the market-goers do transgress "Bal Teshahe," it must mean, therefore, that they transgress "Bal Teshahe" even before the market day arrives, even though the workers had an unspoken agreement with the employer that he is not obligated to pay until the market day. This is the source for the Tosfos Rid, who says that even after the workers forego prompt payment, the employer is obligated to pay them if he has money with which to pay.

Rashi, on the other hand, explains the Gemara about the market-goers differently, in accordance with his own view. Since Rashi holds that "Bal Teshahe" cannot apply if the workers forego their prompt payment, the Gemara must mean that market-goers transgress only "Bal Teshahe" and not "Bal Talin" even *after* the market day. Rashi, therefore, explains that the market-goers are exempt from *ever* transgressing "Bal Talin," even after the market day, since "Bal Talin" applies only on the day after the work is finished (and not the day after the obligation to pay begins). (M. Kornfeld)

OPINIONS: The Gemara discusses the Isur of delaying the payment owed to one's hired worker. Does an employer who does not pay his worker's wages on time receive Malkus for transgressing the Isur of "Bal Talin?"

(a) TOSFOS (61a, DH La'avor) maintains that one who transgresses the prohibition of "Bal Talin" is punished with Malkus. Tosfos apparently is following the view that one receives Malkus even for a "Lav she'Ein Bo Ma'aseh," an Isur that is transgressed without any positive action.

(b) The RAMBAM (Hilchos Sechirus 11:1) disagrees with Tosfos and maintains that one who transgresses the prohibition of not paying his worker on time does *not* receive Malkos, because he still has an obligation to pay the worker. Similarly, the SEFER HA'CHINUCH (#230) says that he does not receive Malkos because he still has the opportunity to pay the worker. By paying, the employer will rectify his transgression, and therefore he does not receive Malkus.

The MINCHAS CHINUCH raises an objection to this reasoning. When the employer eventually pays the worker, this does not rectify the prohibition that he transgressed by delaying the payment. The prohibition of withholding the wages of a worker is not like stealing. When one steals, he is withholding the property that belongs to someone else. When he delays payment to a worker, he is not withholding the money that belongs the worker; rather, he is merely delaying payment. The act of delaying the payment is an Aveirah itself, and thus it is not rectified by the eventual payment. The Aveirah of stealing, on the other hand, involves keeping the property that belongs to someone else, and thus by returning the stolen property one rectifies the Aveirah.

(c) The MINCHAS CHINUCH, therefore, cites a different opinion, which maintains that the employer does not receive Malkus because it is a "Lav she'Ein Bo Ma'aseh" -- an Aveirah done without an action, and we rule that Malkus is given only for an Aveirah that is transgressed by doing a positive action.

This is also the reasoning of the SHA'AR HA'MELECH (Hilchos Chometz 1:3, DH v'Derech Agav). The Sha'ar ha'Melech points out that the reason given by the Sefer ha'Chinuch (that the employer is still able to pay) is a more encompassing reason than his reason (that the Isur is a "Lav she'Ein Bo Ma'aseh"), because sometimes the Isur of "Bal Talin" *is* transgressed with a positive action, such as when there was a specific item that was designated to be the payment for the work, and the employer grabbed that item for himself. (Y. Marcus)

QUESTION: The Gemara quotes a Beraisa which states that there are five transgressions which an employer might transgress when he fails to pay his worker. Among these are "Lo Sa'ashok Es Re'acha" (Vayikra 19:13), "Lo Sigzol" (ibid.), and "Lo Sa'ashok Sachir" (Devarim 24:14). The Gemara asks what is the difference between the Isur of Gezel and the Isur of Oshek. Rava answers that Gezel and Oshek are the same, and the Torah is merely making the employer liable for an additional transgression.

This Gemara seems to contradict the words of the RAMBAM (Hilchos Gezeilah 1:3-4), who writes that Gezel and Oshek are two different prohibitions. The Rambam writes that "Gezeilah involves forcefully taking money from someone else (such as by seizing an object from him)." He writes that Oshek, in contrast, "merely involves not paying money that one owes to someone else." If the Gemara concludes that Gezel and Oshek involve the same action (for which the Torah gives two prohibitions), why does the Rambam explain that they involve two different actions? Moreover, the Gemara earlier (61a) states that the Isur of Gezeilah that is written in the Torah is referring specifically to the Isur of withholding a worker's wages (while the general Isur against stealing is learned from the Isurim of Ribis and Ona'ah). (MAGID MISHNEH)

ANSWER: RAV YERUCHAM FISHEL PERLOW (in Hagahos to Sefer ha'Mitzvos, Lo Sa'aseh #50, p. 50) answers that the straightforward meaning of the words, "Lo Sigzol," is an Isur against forcefully taking money from someone else, as the Rambam writes. There is, however, a second form of Gezeilah. This second form of Gezeilah is derived from the fact that the Torah writes "Lo Sigzol" in the same verse as it writes "Lo Sa'ashok." Rava's intention in our Gemara is that the second form of Gezeilah is the same as the Isur of Oshek. Certainly, though, the straightforward Isur of Gezeilah is different than the Isur of Oshek, as the Rambam describes. This is also the way the PNEI YEHOSHUA and LECHEM MISHNEH explain the Rambam. (See also VILNA GA'ON in Choshen Mishpat 359:10, who expands upon this answer.)

The Lechem Mishneh adds that the Rambam's reason for explaining that there is a general prohibition of Gezeilah apart from the specific form of Gezeilah which applies only to a worker's wages is because of the question of TOSFOS (DH v'Lamah). Tosfos asks that if Gezeilah and Oshek are the same Isur, then although it makes sense for the Torah to tell us that one transgresses two Isurim when he withholds his worker's wages, why does the Torah tell us that one must bring a Korban Asham Gezeilos for both Gezeilah and Oshek -- "... O b'Gezel O Ashak Es Amiso" (Vayikra 5:21)? From the fact that the Torah obligates a person to bring a Korban Asham Gezeilos for two different situations of Gezeilah and Oshek, the Rambam understood that there is a separate, general prohibition of Gezeilah.

111b