Question
I set and repair sheitels. Four years ago, a customer brought me her sheitel to fix and we agreed that the cost would be a thousand three hundred dollars. I completed the work and gave the sheitel to a reputable delivery service. However, the delivery service could not find the sheitel. I didn't ask my customer to pay for my work and no one sued the delivery service. Recently, the delivery service called that they found the sheitel and I told them to deliver it to my customer, which they did. When I asked the customer to pay for the repair, she replied that she doesn't feel that she owes the amount we agreed upon because in the meantime she bought another sheitel and it was my responsibility to return the sheitel promptly which I did not do. Is she right?
Answer
In order to answer your question, since as often in CM the issue is very subtle, we must first classify your relationship with the owner of the sheitel.
Since the owner hired you to fix her sheitel and she agreed to pay thirteen hundred dollars for that, you were the type of employee known as a kablan-one who is paid to accomplish something. Furthermore, even though it was your responsibility to return the repaired sheitel, your pay was for repairing the sheitel and not for delivering the sheitel. When one hires a delivery man, he pays for the delivery. But when he hires a repairman, he pays for the repair. The delivery is a necessary element but it is not what the repairman is paid for. Therefore, it appears that as soon as you fixed the sheitel you earned the thirteen hundred dollars.
However, a fixed sheitel which is inaccessible to its owner is not worth anything. Moreover, the Gemara (BM 112A) rules that if one gave his garment to a tailor to fix, the owner must pay the tailor only on the day that he receives his repaired garment, even if the tailor informs him earlier that his garment is ready. Since one only violates the prohibition of bal talin (one may not pay late) if he fails to pay on the very first day that he is obligated to pay, the Ketsos (72, 23) proves that one is not obligated to pay a kablan until he actually receives the completed work of the kablan. (There are poskim who disagree with the Ketsos but since the Ketsos is for this case the worst possible opinion we will not need to discuss the other positions.) According to this, since you only gave the owner the fixed sheitel now, you only finished working now and you could not have requested payment earlier.
However, your case is not the regular case where the worker could have returned what he repaired to its owner. In your case you did everything that you were supposed to do: you repaired the sheitel properly and you sent it with a reputable delivery service. The reason that the sheitel was not returned promptly was due to circumstances that were not under your control. Therefore, we must examine the halacha in case a kablan fails to complete his job due to circumstances that were beyond his control.
There are various places where the Gemara discusses this type of situation and we must understand the rationale for each ruling.
One case that is discussed in the Gemara (BM 77A) is where a person hired workers to irrigate his field the next day, but due to the rain that fell at night there was no need to irrigate the field. The Gemara rules that even though it was beyond the workers' control that they could not work, if the sudden downpour took both the workers and their employer by surprise the workers are not entitled to any payment since they did not actually work.
Another situation discussed by the Tosefto (BM 7) and ruled by the Rosh (BM 6, 6) and SA (335, 2) concerns porters who were hired to bring poles, but when they arrived there were no poles to bring. The Tosefto rules that even though they did not accomplish what they were hired to do, nevertheless they are entitled to the entire amount that they were promised (subject to a minor adjustment due to the fact that their load was lighter).
The Nesivos (335, 2) cites the Magid Mishne who understood that even though it was not the employer's fault that there were no poles to transport, nevertheless he must pay the workers for their efforts. The Nesivos explains that the difference between this case and the previous case is that in the case of the rain the workers could not work, but here the workers basically performed the task that they were hired to do since the main task of the porters was to go and return, which they did. While their employer was not interested in their going and returning empty-handed, nevertheless since what they needed to do in order to bring the poles was to go and return and they did that, they were entitled to the payment that was promised to them.
The difference between these two cases is the nature of the payment one must pay to these two types of workers. The payment that one must make to a worker who does not perform any work, such as the workers who could not irrigate, is for garmi. That is a payment for causing that the workers could not earn money. Since one is not liable for garmi if he is totally not at fault, the employer need not pay the employees since it was not his fault that it rained.
However, a worker who did what he was supposed to do even though the employer could not benefit from the employee's efforts, must be paid for his work, even if it is not the employer's fault that he could not benefit from his workers' efforts.
We see that a worker who did his job but, due to circumstances beyond his control the employer could not benefit from his efforts, is entitled to payment.
However, there is a Yerushalmi (Avodo Zoro 5, 1) that is critical for determining when this ruling applies. The Yerushalmi rules that if one hired someone to bring wine to a sick person, he must pay the worker only if he actually brought wine, but if he did not bring wine, even if it was due to circumstances beyond the worker's control, he is not entitled to payment. However, if the employer hired a worker to bring wine (or poles in the case of the Tosefta) from a specific place and the worker went there, the employer must pay even if the worker did not bring back any wine due to circumstances beyond his control.
The Machane Efraim (Sechirus 8) explains that the difference between these two cases is the job the worker was hired to do. Where the job was to bring wine from a specific place, the worker was hired to go to the designated place. However, if no place was mentioned, the worker was paid to bring wine and not to go to any place. His pay was tied to bringing wine and not to going to a place.
This difference manifests itself in case the worker finds wine right outside his door. If he was hired to bring wine he is entitled to his entire payment because he did what he was hired to do. However, if his job was to go to a designated place and bring wine, he is not be entitled to be paid if he found the wine right outside his door, even though he brought wine.
In your case you were paid to fix the sheitel and you did this. While it is true that you were responsible to return the sheitel to your customer, nevertheless that is not what you were paid for. Therefore if, due to circumstances beyond your control, your employer could not benefit from your work you are nevertheless entitled to the payment you were promised.
The Avnei Melu'im (28, 40) based on the Ritvo explains that when circumstances beyond his control prevent the worker from returning an object, it is considered as if the object was returned to its owner. Thus, you did the work you were paid to do and from a halachic point of view you returned your completed work. Therefore, the day the delivery service reported that they could not locate the sheitel you finished your work and were entitled to be paid and if you would have asked your customer to pay and she would have refused to pay then she would have violated the law of bal tolin.
Similar cases are discussed by poskim. The Gemara (Kiddushim 48A) writes that if a craftsman was hired to create a silver artifact, according to the predominant opinion, the craftsman earns his salary continuously as he progresses (yeshno leschirus metchilo ve'ad sof). The Ritvo writes that if something happened to the incomplete artifact that was beyond the craftsman's control, the craftsman is entitled to the part of his salary that he had already earned even though the employer received nothing. The Avnei Melu'im cited above based his explanation on this comment of the Ritvo.
Similarly, the Maharash Halevy (CM 4) was asked to rule in the case of a person who was hired to dye silk. He dyed the silk but before he could give the dyed silk to its owner a fire swept through the town and consumed the silk. He brings many proofs including this Ritvo that the one who dyed must be paid for his work since he worked and he was not liable for the loss of the silk since the fire was beyond his control. A similar ruling was given by the B'nei Aharon (siman 1, part 5) again in the case of a fire. This time it consumed the work of a bookbinder.
Thus, you were already entitled to your entire payment when the delivery service could not find the sheitel. The one who was responsible for the lost sheitel at that point was the delivery service. Since obviously you do not lose any of your payment because of the responsibility of the delivery service, you are still entitled to your payment.
All the above is the consensus of the Rishonim and the poskim. However, in the case of the Maharash, he freed the owner of the silk from paying the dyer because perhaps there is a minority opinion that views the craftsman not as an employee but as the owner of his improvement (uman koneh beshvach kli) which he sells to the owner of the object when he gives him his improved object. (This itself is a dispute since according to the Ketsos and Nesivos (siman 306) and some others there is no such opinion.) The Maharash maintains that the owner of the silk can say kim li like this opinion if he did not yet pay. Since we discussed in an earlier article whether this is relevant in your situation where the sheitel was eventually found we will not discuss this minority opinion here.
Thus, certainly the consensus is that you are entitled to be paid for your work since you did what you had to do in order to earn the payment and according to most opinions you could have asked the owner to pay you for your work even before the delivery company found the sheitel.
