Question
I am an accountant and I was asked by a client who had a small business to arrange her books and prepare all the documents that are needed in order to file a tax return, and also to file her tax return. I quoted her a price for the entire job and she paid in full. I started working on her books but didn’t yet prepare the documents that are needed to file her tax return which is the bulk of the work. Then came Simchas Torah, and she and her husband and children were all killed in the Simchas Torah massacre. Due to what transpired, the tax authorities waived her obligation to file reports and to pay taxes. Therefore, the work that I did is no longer necessary and there is no more work that needs to be done. I would like to know what to do with the money that I received from her. She left a mother and brothers. However, since no one knows in what order they were murdered it is not clear if her assets should go her heirs or her husband’s heirs since she didn’t have a will. No one asked me for the money, but I want to be honest and not keep any money that is not mine. What am I supposed to do?
Answer
You ask two questions. The first question is whether you are obligated to return any money. The second is that if you should return money, to whom should you give it.
In order to study the issue, we first have to categorize your relationship with your client. Since she hired you and paid you to perform work on her behalf, she was your employer and you were her employee.
There are two types of employees: Those whose pay is based on the time that they work who are called sechirim and those who are paid for performing a job are known as kablanim. Since your payment was for performing a job and not for the time you will spend performing the job, you have the legal status of a kablan. This is true even if, when you quoted her a price, you took into account the time you thought you will need to complete the job since in relation to your client, you are being paid for producing results and not for your time.
Before we can determine exactly how to classify your situation, we must note several other key factors. One is that it was neither you nor her did anything that made the job unnecessary. Another noteworthy factor is that the unforeseen event directly affected her, the employer, and not you, the employee as you are still capable of performing the job you were hired to perform. The only reason the job ceased to exist is because the client no longer required the work due to the tragic circumstances that befell her.
Having classified both your status and what transpired, we must now investigate what the law is when such events transpire. Thus, we will investigate the law in the case of a kablan who was hired to perform work which became unnecessary due to an unforeseen change of circumstances that befell the employer who is nonetheless blameless. Since you performed some of the work but not all, and even what you performed in retrospect was worthless, we must decide if you have to return all of the money since your employer had no benefit from your work, or some of the money since you did perform some of the work, or nothing because she is the cause, even though it was not her fault that the job was eliminated.
There is no Gemoro that directly deals with your question but there are rulings of the Rishonim and the SA that are related to your question.
One significant ruling of the SA (334, 4) concerns a private tutor whose student unexpectedly became ill or passed away. The SA rules, based on the Maharam of Rottenberg, that the parents may terminate the tutor’s employment even in the middle of his contract since they were blameless and what transpired was unexpected. Thus, the fact that an unexpected event prevented the employer from utilizing his employee’s services frees the employer of his obligation to continue employing the employee. If we ignore the fact that you are a kablan and the SA’s case concerns a socheir, it seems from this that you are not entitled to be paid for work that you will not need to do.
However, this issue is also discussed in the case of a kablan and we will presently see the importance of this. The Beis Yosef (CM 335) and others including the Sema (335, 7) cite a responsa of the Rashbo (6, 224) concerning someone who was hired to accompany an elderly man on a boat trip from Marseilles to Talmesan for a certain fee, but the elderly man passed away before reaching his destination. The escort had only received partial payment and asked to be paid the balance. The issue was whether he was entitled to the balance since the employer did not live to reach his destination which means that the escort was unable to complete the task which he was hired to perform. He asked to be paid the full amount that he was slated to receive had he completed the entire job.
The case of the Rashbo is basically the same as your situation since firstly in both cases the employee was hired to perform a job and not paid for the time he was working, i.e., he was a kablan and not a socheir. Secondly, in both cases the unforeseen change of events directly caused the employer to no longer need the employee’s work, whereas the employee was still capable of performing the job that he was hired to perform. We note further that the question of the Rashbo was whether the employer was required to pay for a service he never received, whereas in your case the issue is whether you are entitled to keep money that was already given to you.
The Rashbo ruled that indeed the heirs of the elderly man were required to pay the escort the balance even though the elderly man died before the job was completed. The Rashbo said that the reason is because the escort was prepared to complete the task, and the only reason he was unable to do so is because something happened to the elderly man. Since the employee was prepared to complete the job, he was entitled to the entire amount he was slated to be paid.
The source of the rationale of the Rashbo is a Gemoro (BM 79A) that discusses a case that the Rashbo maintains is analogous. Someone hired a boat to transport a specific group of barrels to a destination but the boat capsized midway through the voyage and all the barrels were lost. The Gemoro rules that the boat owner is entitled to be paid in full even though he never did, nor will, transport the barrels to their destination. The Gemoro states that the rationale for its ruling is that the shipowner argues that he is still prepared to perform the entire task by providing a different boat to do the job. What is preventing him from completing the job is only that the owner of the wine no longer possesses the barrels that the shipowner had been hired to transport.
The commentaries, including Rabbi Akiva Eiger (glosses on CM 335), ask why the Beis Yosef and Sema cite this ruling of the Rashbo since his ruling is not in accordance with the way the Rishonim, whose opinion is ruled by the SA (CM 311, 3) understood the Gemoro’s ruling in the case of the boat. In the case of the boat one opinion in Tosafos (BM 79B) – the Revom, whose opinion is ruled by the Ramo – understood that the shipper was only entitled to be paid for the part that he had actually transported the wine before his boat capsized. He would thus not agree with the Rashbo’s ruling that the escort was entitled to be paid in full. Furthermore, the opinion of the SA that the shipper was entitled to payment for the entire trip is based on the Rivon in Tosafos that the reason he is entitled to be paid in full is because he suffered a loss when his boat capsized. Since in the case of the Rashbo the escort suffered no loss, if one follows the opinion of the Rivon and SA (as understood by Rabbi Akiva Eiger and most other commentaries) the escort was not entitled to be paid for the part of the trip he did not work.
However, the Machane Efraim (Sechirus 8) explains that there is a third approach to understand the Gemoro’s ruling in the case of the capsized boat, which is the opinion of the Rashbo and the Rif and Rambam. He contends further that this is really the opinion of the SA. This approach maintains that even if the shipper had not suffered a loss he is entitled to be paid in full because he is prepared to complete the job, and the only reason he cannot complete the job is because the wine owner no longer possesses the wine that he contracted to transport. Thus, according to the Machane Efraim the Rashbo’s opinion is ruled by the SA.
Furthermore, Rabbi Akiva Eiger himself in his commentary to the Gemoro (BM 79A) comments on Tosafos that if one performed an act of kinyan requiring him to pay the employee, he is required to pay even if, due to an unforeseen event, he no longer needs the work of his employee. In the case of the Rashbo an act of kinyan was performed to require the old man to pay his escort. This would apply to you as well since by paying you your employer made a kinyan to employ you.
Thus, we have discovered that according to a major opinion – the Rashbo and those who agree with him – even if you had not been paid in advance you are entitled to demand payment for the entire job, even the part you never did, since you are prepared to complete the job.
Besides this ruling of the Rashbo, according to the Nesivos (335, 1), the Ra’avad, based on a different Gemoro (Gittin 74B), would require your employer to pay you for the entire job even if she hadn’t paid you in advance. This is since we view what happened, from your standpoint, as an act of G-d to make it easier for you to accomplish the result you were hired to achieve.
Thus, there are two major opinions that would have required your employer to pay you even if she had not done so. Nonetheless, had she not paid you in advance, you would not have been able to force her heirs to pay you for the work you did not do, since the law does not follow these two opinions.
However, since she did pay you in advance, there are two reasons you are not required to return the excess that you were paid. One is that since the Rashbo and Ra’avad are significant opinions, even if the law does not follow their position, one cannot force someone to return money that according to their opinion he is entitled to.
The second reason is that Tosafos (BM 79B), whose position is ruled by the Terumas Hadeshen (res 329) and by the Shach (334, 2), maintains that by paying in advance, the payer agreed to uphold the agreement even if unforeseen future events would bring about a significant change of circumstances. If one follows this position, you also would not need to return her payment since she in effect agreed to pay you even though circumstances changed.
In conclusion: You are entitled to keep the entire amount you were paid.
