Question
I recently had electrical work done by an electrician whom I have been using for many years. After he worked and told me on the phone that the cost was five hundred dollars, as I have done many times in the past, I dropped off the cash at his house. When he called again to ask for his payment, I replied that I had already dropped the money off at his house. He realized then that he had forgotten to tell me that he was in the process of getting divorced and I should not pay his wife. He says that now that I paid her he will never see the money, because she claims falsely that he owes her money. Must I pay him again since he never received my payment or, since it is his fault, am I not responsible?
Answer
It is not clear from your question whether the electrician ever told you in the past to pay his wife or not. Therefore, we will consider both possibilities. We will begin by considering the possibility that the electrician never told you to pay his wife.
In case he never told you that you can pay his wife, we have to consider if, when you paid his wife in the past, it was as if you paid the electrician and legally had no further responsibility, or you really still had responsibility (and just assumed that she would give the payment to her husband) and only once she gave the money to her husband, you were paid up. If the latter is the case, clearly you still owe him the money.
SA deals with this issue in a number of contexts and the commentaries attempt to resolve several seemingly contradictory rulings.
The Gemoro (BM 36A-B) deals with this issue in the context of a person who received an object to watch over-a shomeir. The authoritative position of Rav Yochonon is that if a watchman gives the object that he is responsible to watch over to another watchman without the owner's permission, the first watchman retains responsibility. The first watchman is even responsible to pay in case the second watchman claims – and is willing to swear – that the object's loss was due to unforeseen circumstances that were beyond his control-an oness (e.g., armed robbery).
The Gemoro states that, nevertheless if the second watchman is the wife or adult child of the first watchman, the first watchman is not liable if the second watchman swears that the loss resulted from an oness. The Gemoro says that the reason is because we assume that when an owner gives his object to the watchman, he does so with the understanding that the watchman's wife or adult child may fill in for him. This suggests that where you are obligated to pay the electrician, he implicitly agrees that you may fulfill your obligation to pay him by paying his wife.
The Maharam of Rottenberg (res. Rashbo 1, 1096) was asked to decide a case where A asked B, who owed him money, to pay, and B replied that he had already returned the money to A's wife. The Maharam, based on this ruling of the Gemoro, ruled that if A allowed his wife to engage in monetary transactions with his money, and B swore that he paid to A's wife, then B is no longer required to pay A. This decision of the Maharam is ruled by the Ramo (120, 2) unequivocally.
The Ramo rules (291, 21) similarly that if a watchman returns an object that he was watching to its owner's wife, the watchman is no longer liable for the object. This is because returning the object to its owner's wife is halachically equivalent to returning it to its owner.
However, there are other places where SA seems to contradict these rulings. In one place (CM 72, 31) SA, based on a responsum of the Rosh, rules that if A asked B to lend him collateral that A had given to B earlier, and B replied that he had already given it to A's adult son, B is liable for the loss of A's object since he did not have permission to give it to A's son. He explains that the Gemoro's ruling that a watchman my entrust the object he is watching to his family only applies to watchmen who gave the object they were entrusted with to their family. This is because when one entrusts his object to a watchman, he understands that the watchman will occasionally need to go away and he will then leave it with his family. However, when one borrows an object, he must return it to its owner and not to the owner's family.
The Rosh based his response on a Mishna (BM 98B) that states that if B asks A to loan him his cow and A gives the cow to B's son, B does not assume any responsibility from when his son received A's cow. The Bedek Habayis of the Beis Yosef asks that this seems to contradict the earlier ruling of the Maharam since it seemed that he maintained that giving to a borrower's family is equivalent to giving it to the borrower himself. He suggests that in the Rosh's case the wife or child was not authorized to transact on behalf of the husband. It is important to note that there is no support from the Rosh's response for the answer of the Bedek Habayis.
Another occasion where this issue is considered is by the Ramo (340, 8) in a situation where B, who had borrowed an object from A, returned it to A's wife. Based on a responsum of the Rashbo (2, 262) the Ramo rules that B remains responsible since a borrower does not fulfill his obligation by returning the borrowed object to the lender's family.
The commentaries seek to resolve the apparently contradictory rulings of SA.
The Gro (120, 7) writes that indeed the rulings are contradictory since SA is citing different sources who disagree with each other. He clarifies that the key disputants are the Maharam and the Rashbo who base their positions on the two different sections of Gemoro that were cited above. The Maharam extended the Gemoro's ruling in the case of a watchman who gave his object to another watchman, to all situations. Therefore, he maintains that giving to a wife or a child is just like giving to the person himself in all situations.
The Rashbo however, basing himself on the ruling of the Gemoro in the case of a borrower of a cow, maintains that giving to a person's wife or child is generally not the same as giving to the person himself. He refutes the Maharam's proof in the same way as the Rosh that was cited earlier did. The Gro himself sides with the Rashbo because he maintains that the Rashbo's arguments are stronger.
The Sema (72, 98) resolves the contradiction by saying that the cases are different. One who borrows an object cannot fulfill his obligation by returning it to the family of his lender but one who watches over an object can return the object to the family. The reason, he says, is that since a borrower derives benefit from the borrowed object, he must be more careful in safeguarding the object that he borrowed, than one who watched an object, where the owner of the object benefited from the service of the watchman. It should be noted that his distinction is quite difficult because in the case of collateral cited earlier, B was the lender and yet he was liable for giving the collateral to B's child. The Sema does address this issue but his explanation is quite strained.
The Shach (72, 136) tends to agree with the Bach who distinguishes between one who is watching an object who has the right to give it to his family to watch and one who must return an object, who must return it to the owner himself and not to a family member. He maintains that the only time one can satisfy his requirement to return an object to its owner by giving it to the owner's wife, is if the wife has received general authority from her husband to transact on his behalf.
The Nesivos (340, 13) agrees with the Shach that the only time one who returns an object or repays a loan may give the money or the object to the wife of the lender, is where the wife has authority to transact on behalf of her husband. However, if the husband just trusts her with his money but does not allow her to transact on his behalf, the borrower remains liable. His rationale is that if the wife may transact on her husband's behalf, then receiving something is a transaction that is within her authority.
We note that if the wife has authority to transact on her husband's behalf even the Sema agrees that the borrower is free from further liability if he gave the money or object to the wife. (In 120, 12 he states so explicitly.)
The Shach (120, 5) cites the Maharshal as disagreeing but he himself agrees.
Thus, since five hundred dollars falls within the bounds of a wife's authority to spend in most families, you could have assumed that you were satisfying your obligation to pay the electrician by paying his wife, even if the electrician never explicitly told you to pay his wife.
If the electrician explicitly told you once in the past to give the money to his wife and never subsequently told you otherwise, there is another reason to free you from having to pay again. One source is the Ramo (333, 8: 163, 5) who rules that if one hires someone once with certain stipulations and later rehires him without stating any stipulations, the original stipulations remain in force. The source of this ruling is a responsum of the Rivosh (475) concerning a community that hired a chazan for a year with the stipulation that he would be free from paying community taxes and then later rehired him without mentioning a waiver from taxes. The Rivosh ruled that even though no waiver was mentioned explicitly it remains in effect since we assume that both partys' intent was that this stipulation remains in effect since nothing was stated otherwise.
In conclusion: If once the electrician told you to pay his wife, then you certainly are not liable. Even if he never told you, since wives generally have authority to spend five hundred dollars, you fulfilled your obligation to pay the electrician by paying his wife and you have no further liability.
