Question
I run a private gan (kindergarten) and the government recently gave permission for ganim to reopen. I called all the parents and some said they don’t want to send their children back for one of two reasons. Some parents are afraid of illness. Wouldn’t it seem that if the government allows the ganim to reopen (subject of course to stringent rules which I will comply with) the parents are being overly cautious and I shouldn’t have to suffer? Other parents said they were not sending their child because they could no longer afford gan since the mother had been laid off. These children were signed up for the entire year and their failure to return cuts into my parnossoh. I took head checks for the entire year. Can I just tell the parents that if they don’t want to send their child that’s fine but I will deposit their check at the proper time in any case?
Answer
We wrote in previous articles that you have the status of an employee who was hired by the parents for the entire year. The halocho generally does not allow an employer to fire an employee in the middle of his employment term, and if the employer does fire his employee he will have to continue paying him more or less as if nothing changed. The only adjustments are that his original wages are reduced by the expenses the employee does not need to spend and his sechar battolo which we wrote about last week.
However, there is an exception if the employer backs out due to certain unforeseen events. The type of unforeseen event that is mentioned in the Gemara is a farmer who hired a worker to dig in his field the next day and due to an unexpected rainfall in the night the worker is not able to dig the next day. In this case the employer owes nothing to his employee.
Not only if the unforeseen circumstances obviated the need for the employee before he even began, but also if in the middle of his contract the services of the employee are no longer needed, the employer can cancel the employment. An example of this is discussed by the Mordechai (Bava Metsiyo 344) and ruled by the Shulchan Aruch (Choshen Mishpot 334, 4) that if a child took ill, his father may terminate the employment of his private tutor.
Having established that there are certain unforeseen events that justify terminating the services of an employee even in the middle of his contract, we have to examine the particular reasons given by the parents – your employers – for terminating your employment. Are these valid reasons or not?
The argument of the parents that in spite of the government’s decision they are afraid would seem to be somewhat analogous to a ruling of the Maharam of Padua (Responsa 86). The Maharam was asked about parents of a child who fled Venice due to the outbreak of a plague. The parents obviously didn’t send their son to his tutor and refused to pay the tutor for this period of time. The tutor argued that only a small minority fled Venice and therefore, one cannot view the plague as a makas medino and he should be paid in full.
The Maharam said that he agreed that one cannot classify the situation as a makas medino since only a minority fled. However, he ruled that one cannot make the parents pay because their behavior is classified as an unforeseen oness. He says one can’t say that the parents were at fault because they didn’t need to flee. His reasoning is that in a plague those people who are afraid are in much greater danger due to their fear than those who are not afraid. Therefore, while their fear may be irrational, nonetheless, as long as they had fear the parents were justified in fleeing. He does not mention it but the fact that people who fear are in much greater danger is the way Rabbeinu Yona (a Rishon) interprets (in his commentary to Mishlei 3, 26) the pasuk in Mishlei (29, 25) “Cherdas Odom yitain mokeish uvoteiach baHasheim yesugov,” – that the fear itself creates the danger. By fearing something one actually heightens his own danger.
Thus, the Maharam rules that even though the fear may not be justified from a rational perspective, nonetheless, one who fears is classified as an oness. Therefore, it would seem that if the parents are really fearful you cannot make them pay. We should add however, that the parents have to really be honest. Therefore, if they aren’t very careful and act in other ways in a manner which indicates otherwise, they cannot use fear as an excuse for not returning their child to gan.
The argument of the parents that they can no longer afford gan also can be justified under certain circumstances. The Rivash (103) rules that if one cannot afford something he is called an oness. He argues, “There is no greater oness than one who cannot afford to pay, because what shall he do, steal?”
This is ruled in Shulchan Aruch as well (Yoreh Deah 232, 16). Shulchan Aruch rules that if when one engaged his daughter he vowed to pay a certain dowry because people owed him various amounts, and then due to a change of circumstances he cannot collect the debts, he is no longer bound by his vow. The Shach (232, 42) adds that even though he still owns a house the father is absolved from his vow because it isn’t (at least then) customary for people to sell their house in order to pay a dowry. Again people must be honest. If they have money for luxuries and just use the mother’s being laid off as an excuse, they would not be justified in discontinuing your employment.
In conclusion: Both of the reasons which were given may justify the parent’s refusal to return their child to your gan. However, the reasons must be true and if not, the parents cannot terminate their child’s participation in your gan. We should add that it may be possible for you to find replacements in which case you must do so, in order to avoid a loss.
