BS”D
Question
Recently, I went to my regular barber to get a haircut. We didn’t discuss what number shaver he should use, since I am a regular customer and I always have my hair cut with a number three shaver clip. He previously had served a number of customers who got their haircut with a zero (a chassidishe haircut) and without thinking he started cutting my hair with a zero. By the time we realized what happened it was too late and he finished cutting my hair with a zero. I was totally embarrassed with my haircut and for the next week I sat in yeshiva with my hat and jacket on to cover over my haircut. Do I have to pay anything for my haircut because in the end he saved me money because if not for his haircut I would have to pay someone to cut my hair and he saved me the cost of a normal haircut? On the other hand, I would never have paid a cent for such a haircut. Additionally, maybe he should pay me for the embarrassment he caused me?
Answer
First, we should mention that the barber is considered at fault because he should have recalled the manner in which he cut your hair in the past. Even if you were a new customer he would not have been justified in giving you a zero haircut without your express approval since many people do not want such a haircut.
The Gemara (Bovo Metsiyo 117B and other places) discusses a somewhat similar case of a person who gave his wool to a dyer to be dyed black and the dyer dyed it red. The Gemara says that the original agreement that they made is void because the dyer did not do what he was contracted to do. The Gemara says that the owner of the wool has to pay the dyer the amount one pays for someone who improved a property on his own initiative in a manner that was not needed by the property. The amount owed is the lesser of the following two amounts: the expenses of the dyer and the profit that the owner of the wool had. The reason for this ruling is that once the original agreement is nullified, the dyer is working without a contract and without having been asked to do so by the owner of the wool. The dyer thus worked on his own without permission from the owner of the wool. We mentioned last week that this is called by Chazal a yoreid shelo bershus.
When one computes the expenses of the worker there are two components. There are the out of pocket expenses such as the cost of the dye. In addition, Rashi (ibid im hashevach) and Tosafos (Bovo Basro 143B) maintain, and the Shach (306, 5) rules their opinion, that the work of the craftsman is also an expense of his. In the case of a barber, since there are usually no expenses on materials the only expense is the cost of his labor. While there is an opinion (Nemukei Yosef) that the worker is not paid as a regular employee, most Rishonim maintain that he receives the amount that people normally charge for the job. In case some people charge more and some less he will receive the smaller amount even if he normally charges more, unless he is more skillful and people of his skill level regularly charge the higher amount.
The above is how we compute expenses. However, as mentioned before, since the barber didn’t do as he was supposed to he is only entitled to the lesser of expenses or profit. Therefore, we have to consider how to calculate your profit from his work.
When the Gemara (Bava Metsiyo 101A) discusses the amount that is received by one who benefited from someone who worked for him without a contract and performed a necessary task, it says he receives the amount that the recipient would have paid for the job. This is considered the amount the recipient profited. Thus, the amount of the profit is the amount he would have paid for the job. Since you wouldn’t have paid anything for the work you received, your profit is zero. Since you are required to pay the lesser of the two amounts: profit and expenses you owe nothing for the haircut.
There is an additional reason why you don’t need to pay for the haircut. It is clear from the Gemara (ibid) and it is ruled by the Shulchan Aruch (Choshen Mishpot 375, 2) that when one performs a task that he was not asked to do, the recipient is not forced to accept the job and pay for it. If he accepts it he has to pay for it, but he has the prerogative to refuse the job. For example, if someone built something on someone else’s property the owner of the property can tell the builder to remove his “wood and stones.” Therefore, you can tell the barber “remove my haircut.” Of course there is no way to remove a haircut. However, the result remains that one cannot force another person to accept his improvements.
The issue of whether removal is a valid request when it is not a realistic option is discussed by the Ketsos, Nesivos and Chazon Ish. The Nesivos (375, 2 and 306, 7) disagrees with the Ketsos who ruled that in the case we mentioned at the outset (where someone dyed the wrong color) the owner of the wool could refuse to pay for the dying by saying “remove your dye”. However, the Nesivos argues that the owner cannot say “remove your dye” since it is not possible to do so. However, the Chazon Ish (Bava Basra 2, 6) rules that if it is clear that the owner of the wool is not interested in the wool which was dyed the wrong color, then we accept his refusal to pay with the statement “remove your dye.” In your case, it is obvious that when you say “remove your haircut” you are not engaging in a ploy to avoid payment but that you seriously are not interested in the haircut. Therefore, we have a second reason to free you from paying.
Finally, you ask if perhaps you are entitled to payment for the embarrassment the barber caused you. However, the Gemara (Bava Kama 86B) writes that one is only liable to pay for embarrassing someone if the embarrassment was intentional. However here, where it was unintentional, he is not liable.
In conclusion: You do not have to pay for the haircut, and the barber does not have to pay for causing you embarrassment.
