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­Shoftim-The obligation to promptly pay a worker who was hired by an agent

 

Question

We are six neighbors in a building and we recently had a clogged sewer pipe. On behalf of all the neighbors, I hired someone to unclog the pipe. In order to pay I needed to collect the money from the neighbors and for various reasons I couldn’t get money from all of the neighbors immediately. I laid out the money on behalf of these neighbors and paid the worker immediately in order to avoid the prohibition of bal tolin-the prohibition to delay payment to workers. However, I want to know for the future what to do. If I just give the worker the money that I already collected, will I violate the issur of bal tolin since I hired the plumber? Or will the people who didn’t pay violate this prohibition since it is their money that is outstanding and we consider that each person is paying the plumber his share of the cost and I just acted as their agent?

Answer

In order to answer the question we must cite a section of Gemara that explains the issue. The Gemara writes (BM 110, B): “If one asked an agent to hire workers on his behalf and the workers are not paid on time, no one violates the prohibition of bal tolin. The reason the employer does not violate the prohibition is because he did not hire the workers. The agent does not violate the prohibition because he did not withhold the employee’s salary.” The Gemara says that several Amoraim, out of fear that it would be difficult for them to pay on time and they would violate this prohibition, made certain to use an agent to hire workers. Thus, it is clear that there is nothing wrong with utilizing this leniency.

However this ruling seems to run counter to the general Torah rule that when one engages an agent it is as if he did the action himself. For example, just like a man can marry a woman by giving her money, he can accomplish the same thing if he appoints an agent to give her the money. Therefore, why is there a difference if the employer hired his employee himself or if he used an agent to hire the worker?

There are three approaches to answer this question. The approach of the Tosafos Rid (BM 111A) is that employees who are hired by an agent, from the moment they were hired do not assume that they will be paid on time, since they did not have direct contact with their employer. Therefore, when they accept a job in this manner it is as if they agreed to be paid after the proper time. Since being paid on time is a worker’s right, the worker has the power to waive this right and if they were hired by an agent they effectively waived this right.

Many authorities (Chassam Sofer, Rashash and others) take a second approach, namely, that for technical reasons the action of an agent in hiring an employee is not equivalent to the action of the employer himself. Even though in general the actions of an agent are equivalent to the actions of the one on whose behalf he is acting, hiring employees is an exception. Employees who are hired by an agent do not have the full status of employees. They are entitled to the salary that was agreed upon but they do not enjoy the privileges (and some of the obligations) of an employee.

The third approach (Bach) is that even though the workers have the status of employees, nevertheless the prohibition to delay the pay of workers is not in force when an agent hires the workers. The reason is because the agent’s action cannot incur this prohibition on the one on whose behalf he acted.

Having clarified the basis for your question, we need to examine the situation of an employee who was hired by one neighbor on behalf of a group of neighbors, himself included. There are two types of situations. The general situation is that the neighbors join together and create an organization (in Israel they call it a Va’ad Bayis and in the U.S. a tenants organization) that is empowered to deal with issues of shared concern such as unclogging a sewage pipe. Funds are collected so that they will be available when the need arises. Generally one or two of the neighbors volunteer to handle day-to-day issues and is empowered to spend money as necessary.

In other buildings, including yours, the tenants do not form an organization but collect money when the need arises. We will consider how to apply the rules of bal tolin in each situation.

In both situations, it might seem that if one neighbor hires someone to work on behalf of all the neighbors the inactive neighbors would not violate the prohibition of bal tolin since an agent hired on their behalf, whereas, the person who actually hired will violate the prohibition. However, we will see that this is not always correct.

The first situation is a specific instance of a general dispute between the Chafetz Chaim and Rav Aharon Kotler.

The Chafetz Chaim (Ahavas Chessed 10, 4) derives an exception to the general rule that one who acts as an agent on behalf of others does not violate bal tolin. He postulates that if the agent who hired the employee also has custody over the money of the people on whose behalf he hired the employee, that agent violates the prohibition of bal tolin if he fails to pay on time. He reasons that the reason an agent normally does not violate bal tolin is because the employee does not anticipate that he will be paid by the agent. However, where he does anticipate that the one who hired him will pay him, the agent violates the prohibition if he fails to pay on time. Thus, according to the Chafetz Chaim, in the first type of situation the agent violates bal tolin if he fails to pay the worker in full on time.

Rav Aharon Kotler (res. Mishnas Rav Aharon 73) disagrees. He maintains that the fact that the agent is able to pay the employee does not suffice. What is required is that the one who hired the employee must be the owner of the money that he is withholding from the employee. Since the money that is owed to the employee does not belong to the one who is authorized to hire on behalf of the tenants he will not violate bal tolin even though he had the ability to pay, since he only had custody over the neighbors’ funds.

This dispute has widespread ramifications. For example, if the one in charge of maintenance at a yeshiva hires an electrician to do work at the yeshiva and he is the one who is supposed to pay the electrician, according to the Chafetz Chaim he will violate bal tolin, whereas according to Rav Aharon he will not. The same dispute applies when a Rosh Kollel accepts an avreich to join his kollel. Even though the Rosh Kollel distributes the pay to the avreichim, since the money is not his own (in most cases) according to Rav Aharon he will not violate bal tolin if he is late in paying the avreichim, whereas according the Chafetz Chaim he violates bal tolin (unless he takes other measures to ensure that he will not violate the prohibition).

This dispute also applies to the person in charge of a tenants association. If funds that belong to the tenants association are available he must use them to pay the worker right away and if he fails to do so, he – and only he – will violate the prohibition of bal tolin according to the Chafetz Chaim. If funds are not available he should apprise the worker before he hires him but even if he did not he will not violate bal tolin.

In your building there is no tenants association and your neighbors’ funds were not at your disposal when you hired the plumber.

There are three questions that we can now answer. Your neighbors would not violate bal tolin since you hired the plumber on their behalf. Even though they are personally obligated to pay their share, nevertheless they will not violate bal tolin. You will not violate bal tolin on their portion of the plumber’s charge even according to the Chafetz Chaim since you did not have control of any of their funds. It seems that you would violate bal tolin on your portion of the plumber’s fee. The only reason to think otherwise is that the Shevet Halevy (4, 222) has a doubt about this issue since the plumber was not expecting six payments. Therefore, your payment is only a portion of the total payment and since on the remainder there is no bal tolin, he reasons that perhaps even on your portion there is no injunction of bal tolin.

It is a good idea to agree with the plumber in advance about all the terms of payment.

 

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