Payments in Times of Emergency - Rabbi Yisrael Metof shlita

00:02 Speaker 1 You’re listening to “Lema’an Yishme’u,” a podcast from Machon Halacha Chabad.

00:09 Speaker 2 Today’s class is very interesting, on a very current and practical subject. I’d like you to ask questions during the class; it will make it more lively. We’ve just been through a difficult period, and questions will soon come up. It won’t be long—a week or two—before things start to become clearer. In fact, people are already asking whether they have to pay in various situations. So we’ll look at the sources. We’ll see that things aren’t so simple, and we’ll also try to suggest the proper way to proceed. First, what are we going to study today? What is a makas medinah—a widespread calamity? What does that mean? We’ll soon see in the Mishnah that it refers to something that affects many people at once, and is treated differently from an ordinary occurrence. We’ll look at the possibilities. How does a makas medinah affect property rentals? If someone rents a store or a home for a certain period and can’t use what they rented, can they get a refund or not? We’ll also discuss payments to caregivers [unclear]. Finally, we’ll look at loss and compensation: whether to pay in full, what gets deducted, and what doesn’t. Just to illustrate, here are various rulings issued by rabbinical courts during the coronavirus period: twenty-five percent, thirty-five, forty, forty-two, forty-five, fifty—all sorts of rulings on how much must be paid. By the end of the class, we’ll discuss what led to those figures. No one just drew a number at random. There is reasoning behind each one, and we’ll get to that at the end. For now, as an illustration of the whole subject, let’s look at what the Chasam Sofer says. This is very well known. Everyone who deals with makas medinah or an emergency situation cites this Chasam Sofer, and the rulings of today’s rabbinical courts are essentially based on it.

02:45 Speaker 2 In the Chasam Sofer’s time, people fled their city because of a war. After forty-two [unclear], they returned and asked, “Are we supposed to receive payment or not?” We’ll read the Chasam Sofer again at the end of the class, but for now let’s look at just a few words. He says, “In my humble opinion, without Torah, I do not know.” And he repeats at the end, “Without Torah, I do not know, until someone wiser than I comes and brings forth the true ruling.” In other words, even the Chasam Sofer, a great genius, says that it is very difficult to decide precisely what the Torah requires here. So he suggested a compromise, which we’ll discuss at the end. One last introduction before we begin the subject itself: everything we’re discussing today concerns a situation after the fact. It has already happened; people weren’t prepared for it and hadn’t agreed on terms in advance. But unfortunately, in our country there are surprises all the time. We had several years of coronavirus, which affected the whole world, and here we also have various military operations and other situations. So from the outset, whether it’s a rental agreement, a childcare arrangement, or anything else, you can include a clause addressing emergencies. Unfortunately, these things happen. Here’s an example of a contract in which one caregiver wrote in advance what would happen if there were coronavirus or a different government directive. She specified fifty percent. When people make an agreement in advance, though, each person chooses what they’re willing to risk. At first, people don’t really think it will become relevant, so they allow themselves to give up more. And when the terms have been settled in advance, there’s nothing left to debate afterward. That was the introduction; now let’s dive in. First of all, what is a makas medinah? We mentioned it briefly earlier. There’s a sort of scale of circumstances beyond one’s control.

04:47 Speaker 2 Say someone rents a house, or someone hires a worker. The worker doesn’t do the job, or the house can’t serve its purpose, for various reasons. The cause might be within the person’s control, or it might not. At the highest level is a deliberate act. For example, a tenant comes and damages the house. Okay, that’s his problem. Or the landlord deliberately does something to the property. Clearly, whoever acted deliberately bears responsibility for it. The same applies to negligence. If something happens to the house because the tenant was negligent, again, that’s his problem. He can’t tell the landlord, “I don’t want to pay.” The questions begin when things happen through circumstances beyond anyone’s control. Everyone knows the principle that the Torah exempts a person in such circumstances. That applies when someone damages another person’s property. The question is what happens when the circumstance does not involve damage to someone else. Incidentally, even when it does involve damage to someone else, there are major complexities: when must you pay, and when not? But that’s not what we’re discussing here. We’re talking about a loss to the person himself—and to someone with whom he has an arrangement. What happens in circumstances beyond his control? For example, someone rents a house but, for various reasons, can’t live there. Or someone hires a worker, and the worker can’t work, or the job can’t be done. There can be an individual misfortune, something more closely connected to that particular person. This is called “his mazal caused it,” so the loss is more likely to be placed on him. But the highest level, and the focus of our class, is a makas medinah. That means it isn’t just his individual misfortune; it has happened to many people in the area. We’ll see the definition shortly. At that point, I can’t say it was his mazal, because it happened to many people

06:31 Speaker 2 around him, so we’re less inclined to place the loss on him. Let’s see what the parts of today’s class will be. First, as we said at the beginning, how do we define a makas medinah? It’s a halachic category. How do we decide today whether something qualifies? Let’s start by defining it. Here we see types of makas medinah mentioned in halacha, some of which, unfortunately, we’ve experienced ourselves: an epidemic, war, fire, and also government decrees and directives. Even though a directive isn’t something physical that happens, it can still be called a makas medinah. For example, if the government decrees that people can’t live in a particular city and expels them, that is a makas medinah for that city. But how do we define it? There are three parts. We’ll study them briefly, without spending too long on them, and then turn to the practical side. First, we have to examine whether the damage is direct or indirect. Take the example of renting a house, okay? I rented a house, and something happened to it: a missile hit it. Say a missile hit all the houses in the city, or a fire swept through the entire city. That is direct, physical damage. There are also indirect losses, which we’ll discuss shortly. Then there’s the extent of the harm: how many people were affected by the same event? One person? Ten people? The whole city? Most of the city? And what steps were taken to limit the damage—how much effort did you make to reduce the loss? We’ll expand on that, and it will address the question. I’ve called our sources “historical stops.” We’ll go through them shortly, and it will be very interesting. Our journey begins in the time of the Mishnah. We’ll read the Mishnah, which looks very simple. After that, there’s an incident involving the bank of Mantua. There

08:43 Speaker 2 ...has to decide, in effect, by issuing a ruling, because there was a dispute among the leading Torah scholars of that generation over how to apply what the Mishnah says to a different situation. The next stage was [unclear], and all of this is then applied to our own time, the period we are living in today. So what is the source in the Mishnah? The Mishnah says, “One who takes a field from another and it is eaten by locusts or blighted.” “Takes” here means that he rents it. In the language of the Talmud, this is called leasing. It is like renting, except that a renter pays money, while a lessee pays in produce—a fixed amount of produce. It does not matter how much the field yields, a little more or a little less; the amount of produce he pays is agreed on in advance. That is what leasing means. “One who takes a field from another and it is eaten by locusts or blighted”—something happened to the field, and it did not produce the harvest he wanted. The Mishnah says it depends: if it is a widespread calamity, the amount he owes under the lease is reduced. If it did not happen only to him but also happened throughout the area, the payment is reduced. For example, if the field was supposed to yield a ton of wheat and it yielded half a ton, he pays half the rent, not the full rent. If it is not a widespread calamity, there is no reduction. If it happened only to him and not to others nearby, we say that it was his own bad fortune, so he must pay the full amount. The Gemara asks, “What constitutes a widespread calamity?” Rav Yehudah says, “For example, when most of the valley is flooded.” The same damage occurred to most of the valley: there are many fields there, and most of them suffered damage. So what constitutes a widespread calamity? Now, the two points we mentioned earlier, as I said, we’ll cover them

10:46 Speaker 2 very briefly. Is the damage direct or indirect? And what about efforts to limit the damage and the extent of the damage? Direct or indirect damage: as we said earlier, if the property itself is damaged—there is a fire throughout the city—that is certainly a widespread calamity. There is no question. As we see in the Mishnah, locusts came and ate the produce, or it was blighted—the crop dried up. Harm to the users means that nothing happened to the property, but something happened to the people who use it. For example, in those days people believed epidemics were caused by the air in a particular place. So the air changed: suddenly, in that village or city, the air was bad. Everyone had to flee to avoid being harmed by the epidemic. Everyone left the city. The users were affected because they could not use the property. Although nothing happened to the property, something did happen to its users, and there is a dispute about whether that counts as a widespread calamity. If the effect is indirect—something happened to people’s finances, and because they have no money they cannot buy things or make use of a shop, or something even more indirect—that is not considered a widespread calamity. The damage has to affect either the property itself, the thing itself, or the work itself—which then affects caregivers and so on—or the people who use it, who can no longer do the work or use the property. In that last case, there is a dispute. Next, what is the extent of the damage? We saw in the Mishnah that if most of the fields were affected, it is called a widespread calamity. What happens if it is not the fields that are affected, but the people? Here again, we have one dispute on top of another. We will see many, many disputes throughout, and that will bring us to the conclusion that a compromise is needed. Not just because, as with anything, compromise is a worthy thing, but because in this situation,

12:48 Speaker 2 with so many disputes, reaching a compromise is almost part of the ruling itself. So if most of the people were harmed—most of the people—for example, right now there are communities that have been evacuated. Most of the community was evacuated, while some remained. Again, there is another dispute: is that considered a widespread calamity? It is not the property itself that was affected, and it is not everyone, only the majority. There is a dispute about this. But according to most halachic authorities, even if most of the people were affected, it is considered a widespread calamity. The third point is taking steps to limit the damage. Say you rented a store and you cannot use it because of regulations, or because people are not coming there for various reasons. You need to make adjustments so that you can use the property. You cannot just say there is a problem and sit at home. For example, you can make deliveries, work remotely, or change the products in the store somewhat so that people can buy from you. You have to do everything you can to get some use out of the property. But what if, for example, you rented an electrical-appliance store and something happened so that no one is buying electrical appliances at all? Do I now have to open a grocery store in the same place, or a pharmacy, or something else, to make sure the premises generate income? That is disputed among the halachic authorities—the Maharshach, the Machaneh Ephraim, [unclear]. Do you have to go so far as to change the nature of the business, or not? That too is a dispute among the halachic authorities. So far, we have defined what a widespread calamity is. To sum up, something that happens, incidentally, need not necessarily be from Heaven; it can also be caused by people. What happened to us now was

14:51 Speaker 2 caused by people. It includes government regulations; people are doing this too. But damage that occurs in a particular place or city and affects most of the people there can, according to most opinions, be called a widespread calamity. What do we do in a situation of widespread calamity? There are two parts to this: what do we do when it concerns the rental of property, and what do we do when it concerns a worker—a caregiver, classes, and things like that? There was a case involving the banks of Mantua. There was a period in Italy when Christians were forbidden to lend money at interest. Jews were the ones who opened the banks and lent money at interest, and they had to obtain a license from the government to open a bank. In one place, Mantua, there were only four bank licenses. All four license holders were Jews, and they lent money to non-Jews at interest. It is permitted to lend to a non-Jew at interest, and they did a great deal of business that way. Later, other things happened with the banks and problems arose, but let’s get to the main point that concerns us. The government suddenly imposed regulations on the banks there. They could no longer lend people money without security, without collateral. In other words, just as banking regulators today require a bank to make sure it has collateral for a loan above a certain amount, back then they could not lend at all without collateral. This sharply reduced the banks’ profitability, because many of their loans had been made without collateral. Fewer people came, and this created a problem for them. Now, one man there had sold his rights for seven years to someone else—sold them, or leased them, let’s call it that. In the middle of those seven years, the buyer approached the man who had sold him the rights and said, “You sold me a successful, thriving bank. Now, after the decree”

16:56 Speaker 2 of the government, that bank is no longer worth as much. You’re seeing only half its former value. Now, the problem is that he didn’t come to him as soon as it happened. It happened, let’s say, in the middle of the year. At the end of the year, when he had to pay, he told him: Instead of paying the agreed sum—let’s say ten thousand gold coins—I want to pay only five thousand, because what you sold me isn’t worth that amount to me. The case came before the dayanim in that city. They were called Rabbeinu Zalman and Rabbeinu Kalman. They discussed it and went to ask Maharam Padua, who was the great expert at the time. They thought it was straightforward, as we saw earlier in the Mishnah: when there is a widespread calamity, you deduct from the rent. The same applies here. There’s a widespread calamity, a government decree, so the rent should be reduced. They were certain of it. But Maharam Padua came along with a major new ruling, and you’ll see later how relevant it is to our entire subject. It really affects the whole discussion. He said: Imagine someone rents a car. In his case, he spoke about a donkey, and after a few days of the rental, a defect suddenly appears. The donkey becomes lame and can’t walk at all. What does the renter do? He goes to the person who rented it to him and says, “A defect has appeared in the item. I want to return it.” Whether the owner must provide a replacement donkey or not is a separate question. In any case, once the renter discovers the defect, he returns it. A person buys a product, gets home, and discovers that it’s defective. He returns it immediately; he doesn’t keep using it. If someone discovers a defect in an item and continues using it, he is effectively

18:42 Speaker 2 showing that he has waived his claim. He’s saying, “I don’t mind this defect; it doesn’t bother me.” Maharam Padua said: That bank—the right you acquired for seven years—was affected by a government decree in the middle of the year. Go to the person who sold it to you and cancel the deal. Tell him, “I want to cancel.” But you didn’t cancel; you continued. That shows you agreed to continue and waived your claim about this. If so, what about the Mishnah, which does say that a deduction must be made? We’ll come back to that later in the class and explain why the Mishnah says so. Let’s move on. In practice, if we’re talking about our own time, there’s now a war, and questions about renting homes, shops, vacation cabins, and hotel rooms. Let’s give a few examples. This is a practical discussion, but it isn’t a ruling that binds anyone; it’s a proposal. Anyone can take a case to a din Torah. I’ll put it this way: the Torah wants us to work things out among ourselves rather than go to a din Torah. So what we’re offering now is a kind of proposal. Let’s talk about vacation cabins and hotels. Someone booked a vacation cabin, and now, because of a widespread calamity, he can’t get there. For example, the cabin is near the Gaza border and he can’t reach it. Is this certainly a widespread calamity? Let’s go back for a moment: what do you do in the case of a widespread calamity? There are two approaches. Either you cancel at that point, or, according to the Rema—whose view we didn’t mention earlier—you don’t have to cancel. Not only do you not have to; you can’t cancel. This is a widespread calamity. If you cancel—say we established that the bank was worth X thousand shekels a year—you suddenly pay him nothing, and he’s left holding that right. Since it’s a widespread calamity, everyone has to share the burden. Therefore, you’re obligated to continue, and he’s obligated to reduce

20:54 Speaker 2 the amount you pay. At the end of the year, you pay half, or whatever amount is appropriate according to the Rema. The Rema calls specifically for a deduction, a reduction in the payment. Maharam Padua says that if you want relief, you must cancel. In our case, with vacation cabins and hotels, I haven’t even arrived at the cabin yet, and suddenly it turns out I can’t get there. Here, according to all opinions, I can avoid paying. According to Maharam Padua, I have the right to cancel, so I cancel. According to the Rema, there’s no right to cancel, but the payment is reduced. How much is deducted here? The entire amount, because there’s nothing to pay for: you can’t get to the cabin or the hotel. In this situation, according to all opinions, you don’t have to pay. What about residential apartments, and shops, which I haven’t mentioned here on the slide? Pay attention to residential apartments. Unlike a vacation cabin or hotel that I haven’t even entered, let’s say I have checked into a hotel, and then an evacuation is ordered and I’m evacuated from it. I leave with all my suitcases and go. I cancel the rest of my stay—or, under the other approach, the payment for it is reduced. But when it comes to an apartment, a normal person doesn’t want to cancel. After all, all his things are in the apartment. It’s not necessarily an unfurnished apartment to begin with, and even if it is, he often has appliances, clothes, and so on there. He has many belongings in the apartment, and if he cancels now, he’ll have to take everything out. If he actually does that—says, “I’m canceling,” and removes all his belongings—he apparently won’t have to pay, as we said about vacation cabins and hotels. But if he wants to continue and leave his belongings there, then according to Maharam Padua he has effectively waived his claim and will have to pay the full amount. According to the Rema, he can

22:49 Speaker 2 ask for a reduction in the payment, though not a full reduction, because he has used the apartment. It isn’t like a vacation cabin, where you can ask for a full reduction because you never arrived. Here, you used the apartment to keep your belongings, so even according to the Rema, you must pay something. You benefited both from having your belongings there and from having somewhere to return to afterward. So you gained quite a lot. That’s why I wrote here that a compromise is appropriate. The idea of reaching a compromise comes from the Chasam Sofer, whom we’ll read again at the end of the class. It’s appropriate to compromise at eighty percent—say eighty or seventy-five. But the point is that payment is certainly required: at least fifty percent. According to one opinion, the full amount must be paid, so even a compromise should fall somewhere in the middle. That concludes the discussion of rentals. Now, what about contractors, family daycare providers, and, more generally, hiring workers without employee rights? How do we apply what we’ve said so far to hiring workers? Let’s pause and map one case onto the other. There’s the landlord, who hands over the keys to the tenant, and because of a widespread calamity, the property can’t be used. Then there’s the employer and the worker. Which corresponds to the landlord, and which to the tenant? It’s simple. Just as the landlord rents out his apartment to the tenant, the worker hires out his services to the employer. So the worker is like the landlord, while the employer is like the tenant, because he hires the worker. If we said that, according to the Mishnah, in a widespread calamity the landlord bears the loss—the payment is reduced, or the rental is canceled—then who bears the loss here? Seemingly, it’s the worker. The worker hires himself out to the employer. At first glance, we would have to conclude that if there’s a widespread calamity affecting that family daycare provider, the teacher, or any other worker, then, as it appears for now,

25:06 Speaker 2 They don’t get paid. Just as the landlord doesn’t get paid: if the tenants take all their things out of the apartment, then here too, if the employee does nothing, he doesn’t get paid. But this brings us to the dispute about the teacher that we mentioned earlier, involving the Maharam and the Rema. There was a decree by the authorities against teaching Torah. This was not in the time of the Frierdiker Rebbe. So at least some of the teachers really did not teach Torah because of it. The question then arose: should they be paid or not? The Maharam said they receive full pay. And here the question is exactly the opposite of what we said earlier. Earlier, we said the landlord bears the entire loss. Here, the worker—the teacher—is hiring himself out for work. He should have had to bear the entire loss himself, and yet we see that he receives full pay, according to the Maharam. What’s going on here? I called this a dispute because it became a whole debate, with many opinions. I’ve presented four opinions here; there are still more discussions of the various views. Let’s go through them briefly and see how fascinating this is. The Rema cites the ruling about the teacher as halachah: as the Maharam said, he receives full pay. And the Taz explains the Rema literally—full pay, in the same way he understood the case of the house. The Rema explained it very briefly, and it isn’t entirely clear what he meant. Those who came after him, the Taz and the Magen Avraham, explained it much more fully. For those familiar with it, there is another sefer called Peiros Emes[unclear] that also explains it quite nicely. The idea is this: we have a calamity affecting the whole community. It isn’t a matter of my luck or my negligence, or your negligence. A calamity affecting the whole community is something that comes from Heaven. Now, when something comes down from Heaven, on whom does it fall? On the thing it is attached to—on the person who owns it. The house belongs to someone, to the landlord. There is a tenant, but he is only leasing it. The landlord owns it, so the landlord bears the loss. But now we’re talking about a worker. Nothing happened to the worker; nothing landed on his head. Yes, even if something did happen to the worker. What is the asset here? The asset is the work. To whom does the work belong? To the person who commissioned it. The Magen Avraham writes that the child is like the land—the child whom the teacher is supposed to teach is like the land, like the field, and the Torah he learns is like the produce that grows from the field. So this worker is not like the landlord we discussed earlier. Here it is the other way around: the person commissioning the work bears the loss.

27:06 Speaker 2 That is the view of the Taz and the Magen Avraham, and they understand the Rema that way too. They say that when there is a calamity affecting the whole community, we must distinguish between renting property and employing someone. With property, the landlords lose out; with work, the employers lose out. That is the result according to this view. In other words, tenants who stop renting and take their things out of the house won’t have to pay anything, while employers will have to pay their employees full wages. But there is a completely opposite view. The Nesivos Hamishpat and the Chasam Sofer both agree that, in principle, it works as we said earlier. Let’s return to the example for a moment to make it clear. When I compare renting property to hiring someone, the landlord rents out his house and loses out when there is a calamity affecting the whole community; the worker hires himself out and likewise loses out when there is such a calamity. That’s their view. If so, why does the teacher suddenly receive full pay? Each gives his own explanation. Very briefly, the Nesivos says that the teacher is not actually paid for teaching Torah, because the Torah says, “Just as I taught for free, so you must teach for free.” In principle, the teacher must teach for free, apart from compensation for the time he gives up and other permitted payments. But the teaching itself is free. He does, however, get paid for supervising the students. If there are teachers among us, they know very well that a great deal of their time and energy goes into maintaining discipline, not just teaching. So he receives his money for that supervisory work with the students. The teacher in that case says: “There’s a government decree against teaching Torah. I’m here, and my paid job isn’t teaching Torah. My paid job is supervising the children. I’m not being paid for teaching Torah. I’m here to supervise them. If you want, bring the children and I’ll babysit them.” Of course, the parents won’t bring the children, because they want them to learn Torah and will teach them at home. But in practice, the teacher says, “I’m here and available to work.” The calamity doesn’t fall on him at all; it has nothing to do with him. That is why the Nesivos holds that full wages are paid in this situation alone. In all other situations, according to the Nesivos, the worker is the one who loses out. The Chasam Sofer says the same basic thing: the worker bears the loss. So why does the teacher receive full pay? He says the teacher is like the field we discussed at the beginning.

29:11 Speaker 2 We mentioned at the outset the difference between a field and a house. With a house, you can say, “If it doesn’t suit you, give it up.” But in the case of a field, the Mishnah explicitly says that the rent is reduced. Why? Because with a field, the expenses come at the start of the year. At the beginning you invest, plow, sow, and do all the hard work. You can’t tell me halfway through the year, “If it doesn’t suit you, give it up.” I’ve already incurred all my expenses. I pay rent for the whole year, on an annual basis. I’ve incurred all my expenses and haven’t received any produce yet. The produce will come at the end of the year. Can you tell me to give it up—to pay me for half the year but not the other half? You can’t. That’s why the rent is reduced there: he hasn’t received a crop. The same applies here, says the Chasam Sofer. The teacher makes his investment at the beginning of the year. That is the hardest time: getting the students used to him and establishing discipline and rules. He invests a great deal at the start of the year. You can’t divide his work into months and say to him, “You got paid for the first month,” after he has worked hard, as happened here, and then suddenly say, “No, you won’t be paid.” That makes no sense, because he actually did the hard work. That is why he receives full pay.

31:11 Speaker 2 That’s a little difficult. Granted, he worked very hard for one month, but he didn’t work the whole year. Why should he receive full pay? I saw that people do raise this objection to the Chasam Sofer, and in practice the Chasam Sofer himself proposes a compromise, as we’ll see later. So, to sum up where we are: according to the Rema and the Ksav Sofer, employees receive full pay in a calamity affecting the whole community, whereas according to the Chasam Sofer, employees receive nothing in such a situation. So what does [unclear] write? He says: half and half. There is a calamity affecting the whole community, and everyone should share the burden equally. Neither party is at fault, so it should be split fifty-fifty. He also reads this into the same Maharam we learned about: although the Maharam says “full pay,” he understands his words to mean half pay. And one of the early authorities actually interprets the Mishnah the same way. When the Mishnah says, “He deducts from his rent,” it means that he

32:57 Speaker 2 He deducts half—half yes, half no. Now let’s get to the practical question. As we said at the beginning, the Chasam Sofer dealt with a case during an epidemic, when the students fled the city for forty-two days. They asked what to do. The Chasam Sofer says: “I pay my employees their wages in full, without deducting a penny. I myself,” he says, “pay the full wage. But you should resolve the case by way of a compromise: pay half, and the teacher will lose half. So I made a compromise, with both parties’ consent, in a way that suited them both.” The Chasam Sofer is saying that even he was not entirely certain about the strict ruling, so to speak. He says he could not state the ruling clearly. That is why his recommendation was a fifty-fifty compromise. And when it comes to a calamity affecting the whole community, the case for that is even stronger. I also heard from one of the rabbis of our time that a person cannot come along and insist that the strict law be applied no matter what. In a situation like this, where a huge number of people all have the same question, if everyone insists on a strict ruling, or on various other compromises, one person will lose and another will gain, and so on. As we said earlier, the ruling for an employee might come out one way and for someone else another way [?]. So there is value in making a general compromise and offering guidelines that address what everyone should do. That is what I told you at the beginning. Several batei din issued rulings during COVID with various percentages, and now we’ll see how they arrived at those percentages. First, in practice, there is the question of deductions that we mentioned; that will be the second part of the class. Say that in the middle of an ordinary year, a worker’s daycare closes—or take a teacher at a private kindergarten. Something happened to the kindergarten and she cannot work. Certainly she should receive money, since it is neither her fault nor the employer’s. How much should she receive? Well,

35:02 Speaker 2 there is a rule in halachah called “an idle worker.” I called it something a little gentler: an allowance for time off. Imagine someone earning ten thousand shekels a month at a very demanding job—say, a programmer. You tell him, “I’m going to deduct just five hundred shekels each month, but you can do whatever you want. Sit at home; don’t work.” Of course he’ll agree. A deduction of only five hundred shekels for not working the entire month? Of course he’ll agree. That caregiver or kindergarten teacher who did not work had that time off. She did less work—or rather, she did not work—and she would have been willing to receive a little less money in exchange for not working. So there is a certain deduction. Whenever someone did not work, even though they are entitled to be paid, a certain amount is deducted because they did not actually work. How much is that deduction? This is where all the disagreements come in, and where all those figures I gave at the beginning come from. The disagreements are all about how much to deduct from someone who did not work. One opinion says to deduct half the payment, though fewer authorities rule that way. Because when you actually ask people—ask different workers how much less pay they would accept to stay home—almost none of them agree to half pay in exchange for staying home. They would rather work and earn more. There are certain professions where it is different. A Torah teacher, for example, is said not to want any allowance for time off at all; he wants to study Torah. What is hard for him about studying? He always wants to study Torah—with this child, with that child. If there were no children to teach, he would study on his own. So he has no time off at all. For him, so to speak, there is no concept of an allowance for time off. Another thing that needs to be deducted is expenses that were avoided. Suppose a family daycare closes. A family daycare, for example,

36:55 Speaker 2 provides breakfast and lunch all the time and has expenses for various activities and so on. Now that the daycare is closed, it has fewer expenses. Those expenses certainly cannot be charged. That is money the operator did not spend; there is no reason to charge it for nothing. It is not considered a loss. The rule concerning a calamity affecting the whole community is meant to cover losses someone incurred because of that calamity. Here, the person who did not incur those expenses has not lost that money. The third thing is compensation. The state provides compensation according to the definitions, guidelines and conditions it sets. That compensation also reduces the recipient’s loss. If the manager of a family daycare lost, say, twenty thousand shekels and receives ten thousand shekels in compensation from the state, then the loss is only ten thousand. So we calculate the loss only from what remains after deducting expenses and compensation. After all those deductions, how much should be paid? We have already said that the halachic authorities disagree. Regarding workers, the opinions range from one extreme to the other: some say not to pay at all, and some say to pay everything. The Chasam Sofer suggests a fifty-fifty compromise, and so it is appropriate to compromise at fifty percent. I won’t go back over everything, but if you remember, we had all those percentages: twenty-five percent, thirty-five percent, forty, forty-two, forty-five, fifty. How did they arrive at all those figures? We said it all has to do with the allowance for time off, and here there is a fundamental question: when you make a fifty-fifty compromise, do you also deduct that allowance for time off and then compromise, or not? Is the compromise based on the full amount? Here the batei din differed. Those that gave figures below fifty percent

38:50 Speaker 2 did so because they held that you first deduct the allowance for time off, under the rule of the idle worker, and then split the remainder fifty-fifty. That is how they arrived at their various figures. They asked people in different fields. They asked caregivers, “How much less would you be willing to receive in exchange for not working?” It turned out that before Pesach, they were willing to accept a much larger deduction so they could clean the house and be at home; after Pesach, it was different. And COVID struck right around before and after Pesach. So before Pesach, the allowance for time off—the deduction—was thirty percent; after Pesach, fifteen percent. That is how they made their calculations, based on surveys they conducted in each field they considered. But in my opinion, the Chasam Sofer meant to make a compromise. He meant a compromise based on the full payment. As he himself related, he did not make that kind of deduction for the teacher; he himself did not deduct it, and he proposed a fifty-fifty compromise. The basis of the compromise is that the teacher has children to support, and the other party does too. Each side is suffering here, so to speak, and therefore they share the burden equally, half and half. In my opinion, then, it is appropriate to make the compromise fifty percent of the full amount. Expenses and compensation can indeed be deducted before calculating that fifty percent. But in my opinion, the allowance for time off should not be deducted when you are making this compromise and having the parties truly split it half and half. That is the recommendation. With Hashem’s help, may we not face any more questions like these about calamities affecting the whole community. May the great and complete Geulah come, and then [unclear], and we will not need all these discussions.