Last September I enrolled my two year old son for the year in a playgroup so that I could go to work. I paid at the outset with twelve monthly head checks. Due to the virus, I stopped going to work and no longer require the playgroup. Can I stop paying and ask for the return of my checks since I no longer need the playgroup since I am home?
The first thing is to analyze your situation. When you enrolled your son in the playgroup you effectively hired the one who runs the playgroup, for a year, as your employee. Therefore, the halachos which guide us are the halachos of sechirus poalim.
Due to the present situation, you wish to terminate your employee’s employment. It is important to note that the decision to terminate employment resulted from an unforeseen circumstance which neither you nor your employee foresaw or is guilty of causing. This means that the termination of the employment agreement is a result of an oness. Therefore, we will study the rules of one who cancels an employment agreement due to unforeseen circumstances.
In general, one may not fire his employee once he has started working, and if one does fire him he is required to continue paying the employee’s salary as if he worked. In fact the Chazon Ish (Bava Kama 23, 36) even rules that the payment he receives has the same halachos as any other salary. For example, one must pay him on time as if he were working.
However, if the reason one terminated his employee is an unforeseen event which was beyond the control of the employer, the employer may terminate his employee. An example mentioned in the Gemara is where one hired workers to bring water from a stream in order to irrigate his field and it unexpectedly rained overnight obviating the need for irrigation. The Gemara rules that the owner of the field is not required to pay the workers.
Similarly, if a woman was told at the outset that she is being hired to watch over a child in order to enable the mother to go to work and subsequently the mother was unexpectedly released from her job and the mother is faultless, the mother may release the worker because her services are no longer needed as a result of unforeseen events. However, at most the mother will only be able to save on future payments. If she paid in advance she will not be able to recover those monies. Tosafos (Bovo Metsiyo 79B) explains that when one pays in advance he is accepting upon himself to pay even if unforeseen circumstances transpire. This is ruled by the Ramo (Choshen Mishpot 334, 1) and agreed to by the Shach (334, 1).
However, the situation today is different. The reason is that the unforeseen event is not an incident that only involved one or a few individuals, but is part of a general phenomenon.
In order to understand the difference between the problem of one individual and a general problem, we have to understand a basic feature of Torah law that distinguishes it from all secular law. We touched upon this topic last week and we will explain the concept further in this article. It is a very important point because it highlights a basic difference in the legal systems.
The feature is that the role of Hashem is taken into account in Torah law. For example the Gemara (Bava Metsiyo 105B) says that if one rents a field in order to plant a crop with the rent fixed at a certain amount of grain and, due to an attack of rodents, much of the crop was destroyed, we must look at the other fields in the vicinity. If only this renter’s crop was attacked by the rodents, he is not entitled to a reduction in his rent. However, if the majority of fields in the vicinity were attacked he is entitled to a reduction commensurate with his loss.
The Gemara (ibid) explains the reason for this distinction: If an individual suffers a calamity we assume that he is the one whom Hashem wishes to punish (called mazolo goram lo). Therefore, even if the renter did not do anything material to cause the problem, the halacha nonetheless considers him to be at fault, since he is the specific object of the problem. His fault is determined by the nature of the calamity. However, if most of the fields in the vicinity were attacked by rodents (known as makas medinoh) then we do not blame the renter for the calamity and he is entitled to a reduction in rent commensurate with the damage done by the rodents.
This feature of Torah law is not unique to monetary issues. For example there is a rule that if two husbands of a woman passed away she may not marry a third time. The reason is that she is considered as being partly to blame for her husbands’ deaths. However, the Rivash rules that if at least one of the husbands passed away in a plague which killed a majority of the population, she may marry a third time since she is not to blame.
Last week we discussed property rental and that is comparable to the case which is discussed by the Gemara which was also a rental. It would seem that the same rules should apply to an employment agreement since when one hires an employee he is in a sense renting his services.
This case is discussed in Choshen Mishpot. In a cryptic remark the Rama comments (334, 1), “If there is a general oness see siman 321.” The Sema (334, 2) deduces that the intention of the Ramo is to rule that in case there is a general oness the employee must pay the entire salary of his employee. This would mean that you are not entitled to a refund of any of your payment and you would even have to pay if you hadn’t paid in advance.
However many, including the Gra (321, 8) and Nesivos (334, 1), are amazed at this ruling. Since in the case of a property rental we are more lenient with the renter if there is a general calamity, why in the case of employment would we do the opposite and rule that the employer (i.e. renter of a worker) is totally liable?
It may be that the Ramo was not giving a blanket ruling for all employment agreements but was discussing a specific case which was discussed by several Rishonim. The situation was that people hired private teachers for their children and then the town ruler issued an edict forbidding the teaching of Torah. The Maharam of Rottenberg ruled that the teachers must be paid in full.
In order to understand the Maharam’s logic it is necessary to know about social life in the Maharam’s era. We find in several instances (see for example Tosafos Kiddushin 59A) that teachers were often unmarried and they would live in the home of their employer. Therefore, when the ruler forbade Torah study in his town, he was issuing an edict affecting the town’s residents and not migrant workers who could leave. Therefore, it is logical that the teacher must be paid in full since one can pin the blame for the calamity on all the town’s permanent inhabitants.
According to this, since the present situation is a general calamity, you could ask for the full return of your checks. However, there are opinions (Sema 321, ) who rule that the loss should be shared and there are opinions (Taz 321) that you are obligated to pay in full. Therefore, the best approach is to pay half of the amount that the employee is losing. Her loss is not your entire payment since she benefits from not having to work.
In conclusion: It is difficult to force the playgroup teacher to return your checks but the proper approach is to agree to pay half of the teacher’s true loss.