I hired a sofer to write a sefer Torah for me. We signed a contract at the outset that he would give me the completed sefer Torah within a year but we didn’t write any penalty if he fails to deliver by the end of the year. A year has elapsed and he hasn’t delivered the sefer Torah. When I recently inquired, he told me he only wrote about half and it will take him another half a year to complete the job. What are my options? Can I pay less for the sefer Torah? Can I fire him since who knows if he will keep his new deadline? I paid him so far for the cost of the parchment and gave a partial payment for his work.
First it is important to understand how the halacha views your contract with the sofer.
There are two ways one can view the contract. One is that we can view it as an employment agreement i.e. you hired the sofer to write for you. The other way is that we can view it as a sales agreement between you and the sofer i.e. you agreed that you will buy the completed sefer Torah from the sofer.
An example of the second approach is a response of the Mahara Sasson (no. 119) where he was asked about a person who did not remit payment on time to the scribe who wrote his kesubo. He ruled that the customer did not violate the Torah prohibition against tarrying to pay his employee since the scribe has the status of one who sold the kesubo. He explains that since the scribe used his own materials to write the kesubo, the halacha views the scribe as writing the kesubo for himself. Later, when he delivers the completed kesubo, he is selling the kesubo to the one who commissioned him to write the kesubo. Since it was only a sales agreement, one who pays late does not violate a Torah prohibition.
However, one cannot compare one who writes a sefer Torah to one who writes a kesubo. The reason is that people who buy a sefer Torah do so in order to fulfill the mitzvah to write a sefer Torah. The Gemoro )Menachos 30A) says that the proper way to fulfill the mitzvah is by writing a sefer Torah and not by buying a prepared sefer Torah. Therefore, the Maseis Moshe (3, 25) rules that one who commissions a sofer to write a sefer Torah intends to employ the sofer to write for him and not to buy the sefer Torah. Therefore, your sofer is your employee and you have signed an employment agreement.
The Gemoro does not discuss exactly this case but does discuss the case of an employee who quit before completing the job they agreed to. The Gemoro (Bava Metsiyo 76B) says that if the employee is not allowed to quit, the employer can fool him by offering to pay extra if he continues on the job, but at the end the employer can refuse to pay him the extra money. This din is true not only when dealing with employees but whenever a person doesn’t want to do what he is supposed to do: one is allowed to entice him to do what he is supposed to do by offering him a bonus and in the end not pay him the extra amount.
For example, the Gemara (Yevamos 106A) rules that if the proper thing for a brother-in-law to do is chalitzo and not yibum but the brother-in-law insists that he wants to do yibum, beis din tells him that they will pay him a large amount if he will do chalitzo and after he does chalitzo they do not have to pay him what they promised.
Therefore, the best thing for you is to offer the scribe a bonus if he finishes earlier and in the end not pay him the extra amount.
In case this does not work, it is advisable to make a specific timetable to ensure that he will finish in another half a year. If you can, insert a penalty clause in case he doesn’t keep to the schedule. That would be best since that will encourage him to finish on schedule. If not, you should warn him that if he does not keep to the schedule you will hire another sofer to complete the sefer Torah.
The source that one can fire a worker who does not work properly is a Ramo (CM 333, 5) who writes that one may remove a worker who does not work properly. The examples that are mentioned by the Ramo are a worker who stays up late at night or overeats or starves himself, since all these interfere with his performance. The Pischei Choshen (Chapter 10, footnote 24) derives that anyone who doesn’t take his work seriously can be fired after being warned, if his actions are not usual. Since it is not usual for one to tarry for a long period of time you will be justified in firing your sofer and hiring a different sofer to complete the job if he keeps on delaying a significant amount. Therefore, it will depend how much he delays. If the delays are only slight you would not be allowed to fire the sofer. However, if he is habitually late or falls far behind you may fire him.
In case it comes to a point where you are justified in firing him, you will have to pay the first sofer for all the work that he did for you. However, the Gemara writes that if a worker quit and his quitting is not proper then he is entitled only to the amount you made up originally minus the amount you need to pay to his replacement. Therefore, while you cannot impose a unilateral fine, you do not have to suffer a loss due to your employee’s actions. The total amount you will need to pay remains the amount you originally made up to pay and the employee will have to bear any loss that results from his unjustified behavior.
We should note further that whether you will need to pay anything for the work that was done depends on the availability of a replacement. The Ramo writes that a sofer may never quit since he is irreplaceable since a sefer that is written by two different sofrim is worth less than one that is written by one sofer. The Mishpetei Choshen (333, 109) writes that if the handwriting of the two sofrim is similar then the sofer is considered replaceable. However, if it is not (See Sho’eil Umeishiv vol 3, 1, 469), you can tell the sofer to keep his work and he must refund all the money you paid him.
In conclusion, you should try to entice the sofer to finish on time. If that fails you should warn the sofer that if he continues delaying significantly you will replace him. If he does delay significantly, you may replace him. Whether you will need to keep what he wrote depends on the availability of a sofer whose handwriting is similar to the first sofer. If you do choose to use what the first sofer wrote, you can reduce his salary by the amount you will need to pay to his replacement to complete the sefer Torah.