I give private lessons in a local yeshiva after school hours. I don’t teach in this school so I have to go especially to the school for these lessons. Sometimes children, without any advance notification, and often without their parents’ prior knowledge, simply don’t show up for these lessons. Do I have the right to charge the parents for these hours as if I worked?
Going forward you should avoid the entire issue by making up with the parents in advance that they will be charged if you are not given advance notice. Furthermore, if you did not stipulate otherwise, there is a known custom in your place that deals with this situation, you should follow this custom.
If you did not deal with this circumstance in your agreement and there is no known custom (in order for a custom to bind the parties the custom must be known to the public) then we have to revert to the laws of the Shulchan Aruch. Since you were hired to teach the child, if he does not show up it is same as with any worker who was hired for a job and in the end was not given any task to perform.
It is important to clarify at the outset that in your case the employer is the parents and not the student, since it is the parents who hired you.
The Gemara (BM 76-77) and Shulchan Aruch (CM 333, 1-2) discuss this type of situation in the context of farm workers and differentiate whether the employer had information that the worker did not have that indicated the possibility that there would not be any work. Furthermore, even if the employer had such information and the worker did not, they differentiate if the workers were notified that there was no work before they set out to work in the field or were only notified that there was no work after they arrived at the field. Since we already discussed (article of Parshas Shemos) some of the relevant issues we will only summarize the portion that is pertinent to your question.
If the workers were informed that there would be no work before they went out to work then even if the employer had prior information, the workers are entitled to be paid only if they lost out on another job. However, if they did not suffer a monetary loss, that is, they did not turn down any job offer on account of this job, they are not entitled to any remuneration. However, if the workers already set out for work, the workers are entitled to remuneration even if they did not suffer a monetary loss.
Many Rishonim (Ramban, Rashbo, Ritva and others) explain that the reason the law changes when the workers set out for work is because setting out for work was an act of kinyan (known as hascholas melachah) for farm workers in the time of the Gemara. Just like any other agreement becomes binding only when an act of kinyan is performed, so too an employment agreement becomes binding only when an act of kinyan is performed and the act of setting out for work in the case of farm workers in the time of the Gemara was an act of kinyan.
Thus, in case the parents had knowledge that their child might not show up which you did not have and you did not lose any other job, the determinant if you are entitled to be paid is whether an act of kinyan was performed to validate your agreement.
In order to apply this criteria to situations like yours it is crucial that we understand the nature of this kinyan. We should note that unlike other kinyanim that are derived from pesukim the Gemara does not cite any pasuk as the source for this kinyan and doesn’t even mention that it is an act of kinyan. It is only the Rishonim who understand the Gemara in this manner and they do not give a Torah source for this kinyan.
We saw in the earlier article that there are three approaches. One approach is the Ritva (Kiddushin 47B) that it is an enactment of Chazal whose purpose was that the parties in an agreement should not suffer a loss. If one could release a worker after he began working it would turn out that up until then he worked in vain.
The second approach (advanced by Chazon Ish, Machane Efraim and Erech Shei) is that the kinyan is based on the fact that the worker began earning money. Since the employer owes his employee whatever he already earned, the employer and employee became obligated to each other. The employee is obligated to work and the employer is obligated to pay the employee the entire salary that he was told he would earn from performing the entire job.
The third approach is (Ohr Someach) is that the kinyan is based on use. By using his employee to perform work that is worth a pruto the parties obligated each other to fulfill their agreement.
Thus, there is a major dispute whether work that was performed by the employee but is not remunerated (such as in your case) obligates the parties to abide by their agreement. We should note that in the time of the Gemara workers were paid for the time they spent going to work, (See BM 83) which explains why the Gemoro says that going to work is an act of kinyan.
As a result, many poskim (e. g. Avnei Nezer CM 52, 4, Chikrei Lev CM 2, 72 who proved that one must pay his employee for the time he spent going to work from the ruling that it is a kinyan) ruled in practical situations that when one is not paid for the time he travels to work, going to work is not an act of kinyan.
Thus, if you were hired on a one-time basis and you didn’t suffer a monetary loss because your student skipped his lesson, you could not force his parents to pay you because you haven’t yet earned any money. However, in case you were hired to give a number of lessons and you already gave one lesson the ruling may change.
The reason the halachah may change is a ruling of the Ramo (333, 2) that when a teacher who was hired for two years gives his first lesson it is considered as hascholas melocho for the entire two years. The reason is because the entire two years is viewed as one interval. While there is an opinion (Beis Shlomo CM 115 according to Machane Efraim) that if the agreement stipulates that the tutor will be paid at certain intervals, each interval is considered as a separate unit, the consensus (e.g. Chazon Ish BK 23, 2) is that since the agreement was for the worker to work for two years, starting to work serves as an act of kinyan for the entire two year interval.
The reason one may not be able to invoke the ruling of the Ramo in your case is because you are not hired for a time period but per lesson (See res of Maharia Anzil 15). Certainly, if the custom is to view the entire agreement that you made as being one unit, then by giving the first lesson you made a kinyan to give all the lessons. For example, if you offer two rates, one a price per lesson and one, for example, for ten lessons, and the parents opted for the ten lessons, then the ten lessons are considered as one unit and when you gave the first lesson you made a kinyan to work for all ten lessons and if your pupil failed to arrive you would be entitled to be paid. However, if they opted for the per lesson rate, even if they made up with you to give ten lessons, starting to give the first lesson would not serve as a kinyan on all ten lessons.
It is important to note that (CM 333, 1) even in those situations where the parents are not required to pay, their action was improper and you are justified in complaining.
The entire discussion until now is only if the parents had reason to believe that their child might not show up and they failed to inform you. We mentioned earlier that the employer is the parents and not the child. As a result, the halachah changes if the child’s absence took the parents totally by surprise.
The reason for this change is because the halachah writes, again in the case of farm workers, that if the reason the employer did not have any work is due to totally unexpected circumstances, then the employer does not owe the workers anything even if they only learned that there would be no work when they arrived at the field. The example discussed by the Gemara (BM 76B) is where the workers were supposed to hoe the field in the morning and there was an unexpected downpour at night. The Gemara rules that the employer does not have to pay the workers if there was an unexpected downpour. Thus, if the parents did not have any reason to believe that their child would absent himself they would not have to pay you for this lesson since his absence was totally unexpected.
In conclusion: If the parents were aware that there was a chance that their child may not show and they failed to inform you, and you made a package deal, and this is not the very first lesson, they would have to pay you for the lesson. If they were totally surprised or this wasn’t a package deal or it was the first lesson in a package deal, they would not be liable. If you stipulated at the outset or it is customary that parents pay when their child doesn’t show up they would have to pay.
As usual, the best advice is to make an explicit contract and avoid problems.