Monetary Questions That Arose During the Corona Period - Rabbi Yaakov Eliezerov shlita

00:02 Speaker 1 You’re listening to the Lema’an Yishme’u podcast of Machon Halacha Chabad.

00:09 Speaker 2 There have been many questions lately about the coronavirus. Many educational institutions and kindergartens have closed, and parents are asking whether they have to pay. The kindergarten teachers, caregivers, landlords, and others are asking for payment. They say, “Well, you hired us. If you can’t come, that’s your problem. It’s beyond your control, but you hired me, and as a worker I’m asking for my wages because I’m ready to do the job.” So that’s one question. Another question is when circumstances beyond their control affect both sides—the worker and the employer—and neither can proceed. If the worker alone is unable to work, many say it’s clear that the worker loses his wages. The employer says, “Why should I pay? You didn’t do the work for me; you didn’t work for me.” Granted, the worker couldn’t help it, but in practice he didn’t work. Here, though, the question is whether our case is what’s called a makas medinah, a calamity affecting the whole community. In other words, it isn’t a problem particular to this worker or to the employer, the person who hired him. It’s a makas medinah. There’s an entire discussion about this in Bava Metzia. Let me quote the Gemara here. It says in Bava Metzia, page 103: “If someone leases a field from another person, and it is an irrigated field or an orchard, and the spring dries up or the trees are cut down, he does not deduct anything from the rent he owes.” That is, suppose he took a field to cultivate. If, for example, the field yields a hundred kilos of produce and he promises to give the owner fifty percent, but then thieves come and cut down the trees—the question is whether he has to pay the rent he

04:30 Speaker 2 promised or not. So it says there, “If the trees are cut down, he does not deduct anything from the rent he owes.” The Gemara asks, “What are the circumstances? If you say that the main river dried up”—the large river that irrigates all the fields there—“why does he not deduct anything from the rent he owes? Let him say: It’s a makas medinah!” But Rav Pappa explains that it’s talking about a small river drying up. In other words, if it were a makas medinah, and I leased a field from someone and promised to pay him a certain amount, but then the main river dried up—or someone suddenly diverted it, so that these fields couldn’t be irrigated—that’s a makas medinah, and he deducts it from the rent he owes. He can say, “I can’t do it, and this isn’t a problem that befell only me; it’s something that happened to everyone.” So he deducts it from the rent. There’s another Mishnah there that says: “If someone leases a field from another person and locusts consume it or it is blighted, if it is a makas medinah, he deducts it from the rent he owes. If it is not a makas medinah, he does not deduct it from the rent he owes.” In that case, too, all the fields in the valley were affected. There were many fields there, and all of them were blighted, so that’s called a makas medinah, and he deducts it from the rent. But if only this particular field was affected, they tell him, “It’s your bad fortune.” Then he doesn’t deduct anything from the rent; he’ll have to pay. This field was blighted, and they tell him, “It’s your bad fortune. You promised, you undertook to pay, and you have to pay.” Now, what about a worker when there’s a makas medinah? That case concerns a field lease, but what happens when someone hires

06:47 Speaker 2 a worker? For example, the kindergarten teacher is considered the worker, and the children’s parents are considered the employers. They hire the teacher to work, look after the children, feed them, care for them, and do all those things, and they pay her. Now there’s a makas medinah and none of that is possible. The teachers can’t teach, and the parents can’t send their children. So the question in a case like this is who bears the loss of wages because of this makas medinah. Does the employer bear the loss and have to pay the teacher, because she says, “I’m ready to work; it isn’t my fault, it’s beyond my control”? Or does the employer say, “No, I would send my child, but I can’t. There’s an order closing all the kindergartens. There’s no choice”? So there’s a question here about whether one makes a deduction in the case of a makas medinah, and whether that applies to every case like this. It says that wherever one makes a deduction, there’s no distinction between the past and the future. In other words, this applies both to the period that has already passed and to a future period for which he asks the worker to come work for him. I actually had a question about a case here: someone used to send his child to kindergarten, and for several months the kindergarten was closed because the law required all the kindergartens to close. There was no choice. In practice, most batei din hold that only half should be paid. They make a compromise on this issue: just half. The kindergarten teacher told them that she had asked a rabbi, and the rabbi had told her they had to pay the full amount. I don’t know who that rabbi was or what he based his ruling on, because in practice the batei din don’t rule that way. But they took her at her word and paid the full amount. They paid her everything.

09:16 Speaker 2 It was two thousand shekels a month, including the afternoon program, and the teacher sat at home and did nothing, but they paid the full amount. Later, the authorities allowed the kindergartens to reopen. But he no longer wanted to send his child because he was afraid. His wife was in the later stages of pregnancy, and they were concerned that the child might bring something home from kindergarten. So the teacher asked for full payment now: “I’m providing the full service on my end. If you don’t want to come, that’s your own problem.” Does he have to pay or not? There are still concerns connected with the makas medinah. After all, the authorities are allowing kindergartens to open so that parents who want to go to work won’t be stuck at home. They tell them, “Go ahead and send your children,” but the risk is still there. That was really my doubt in this case. The teacher says, “I’m prepared to provide the full service. If you don’t want it, that’s your choice. You committed at the start of the year to pay for the whole year, so you have to honor that.” And he says, “No, I’m still worried that my child might catch it from other children, bring it home, and put others at risk.” I actually saw a somewhat similar question cited in the name of the Minchas Asher. He holds that in a case like this it’s still considered a makas medinah, and the parent isn’t obligated to send the child to kindergarten because of his concern. Even though the danger may have diminished somewhat, as long as there are still concerns—and especially since he personally faces this particular risk—the makas medinah is still ongoing.

11:46 Speaker 2 So he doesn’t have to send his child to that kindergarten. That brings us back to the fact that, in practice, there is still a makas medinah. How much must he pay her? Most halachic authorities—almost all the batei din—hold that he doesn’t pay more than half, because the Rema cites two views on this, and the Sma and the Gra also take that position: when there’s a makas medinah, the worker bears the loss, not the employer. The Rema, though, holds that strictly speaking the employer bears the loss. But many authorities hold that the worker bears it. If the worker bears the loss, then in practice nothing would have to be paid to the kindergarten teachers, because this is a makas medinah. Circumstances beyond their control prevented both sides from going ahead, so nothing is paid according to those authorities—the Sma, the Gra, and several others who rule that way. The Chasam Sofer, too, although he holds that since the Rema cites two views and there is an implication in his wording, it’s appropriate to make a compromise: pay only half. But in this particular case that someone asked me about, he had already paid the full amount for almost half a year. Since he paid in full, can he now say, “In fact, that was a mistake. I shouldn’t have paid more than half. So the half you’re now claiming from me for this period when you’ve reopened the kindergarten, while the makas medinah is still ongoing, should be offset by what I overpaid earlier. That overpayment should cover what you’re asking for now, and I shouldn’t have to pay anything more”? That’s the question, because in practice some say that since there is

13:54 Speaker 2 The question is who bears the uncertainty. As a matter of law, the burden of proof is on the one seeking to extract money from another. That is how the Rosh presents it: as a case governed by the rule that the burden of proof is on the one seeking to extract money. If so, it works like this: As long as you haven’t paid, we say that, as a compromise, you should pay half. But if you’ve already paid the full amount, you can say, “I can rely on the authorities who hold that I had to pay.” These are principles in monetary law. Since some authorities say that you do have to pay, the kindergarten teacher can say, “What you’ve already paid is in my possession. Now, I’m running a kindergarten, and you enrolled and committed to paying. You even deposited checks. So perhaps you now have to pay me half—at least pay me half.” So the question is whether holding checks counts as having possession of the money. Many people deposit ten or twelve checks with kindergartens so that the staff won’t have to chase them for payment. In principle, you’re not allowed to cancel a check; you have no right to do that. So perhaps the teacher is considered to have possession of the money. But almost all the rabbis hold that checks do not establish possession. A check is only an instruction to pay the named recipient, who must go to the bank. If there’s no money in the account, you’re left holding the check. You can sue the person and pursue payment, as you could with a promissory note, but a note doesn’t mean you have possession of the money. Neither does a check. I remember that when I was young, [unclear], I once met Rabbi Ben Zion Abba Shaul. He wasn’t just a great Torah scholar; he was a great halachic authority. He too told me that holding checks does not count as having possession of the money. A check is only an instruction to pay the named recipient,

15:53 Speaker 2 which you can take to the bank to receive payment. Until then, you don’t have possession of the money. If the halachic ruling at this point is that you don’t have to pay, she cannot say, “But I have possession of the money, so I can rely on the authorities who say you do have to pay.” A claim that you can rely on those authorities does not, by itself, give you possession of the money. Here, though, it seems he can also say, “I have possession of the money.” Just as the kindergarten teacher says, “I have possession of what you already paid me, because some authorities say you must pay—that the loss falls on the employer, not the worker,” he can respond, “But other authorities say the loss falls on the worker. If so, I didn’t have to pay you. Now, if you want to obligate me to pay half as a compromise because the authorities disagree, then I can say the reverse: I still have my money, and what I already paid you was more than I had to pay. That can be offset against the amount you’re asking for.” That’s the point. So in all these cases, the practice is to reach a compromise. Here there are two elements to the compromise. The first concerns the period when she wasn’t working, because there is the principle of paying a worker at the rate of an idle worker. What does that mean? When she looks after children, she has to work, prepare things, clean them, and do everything else. Here she’s sitting at home doing nothing. She can’t say, “Pay me my full wages,” because she isn’t working. She can lie down, read, and do whatever she wants. It’s not like being busy with children all the time, having to run around,

17:45 Speaker 2 look after them, take responsibility for this and that, prepare food, and care for them. So she is paid at the rate of an idle worker. The Taz and the Sma explain that this means only half the wages. They say that this is also implied by the wording of Rabbeinu Chananel. If it’s only half the wages, then it works out as follows: First, what you’re entitled to as an idle worker is already half your wages. Second, some authorities say you aren’t entitled to anything at all. So it would seem that I need to reach a compromise only over that half. Since some say you’re entitled to the idle-worker payment and others say you aren’t, she would receive only a quarter—that is, twenty-five percent. But I’ve seen authorities who say that, in practice, this would leave her losing three-quarters of her wages. Clearly, a person wouldn’t agree to be left with such a tiny amount, and a person isn’t necessarily willing to sit idle. So they reach a more generous compromise, closer to half. I’ve seen many, many halachic authorities say this. I also saw that Rabbi Asher Weiss, in his book Minchas Asher, holds the same view: the compromise should be close to half. There are also questions about rentals. Tenants have rented an apartment but have to remain in isolation and cannot get to it. How much do they have to pay? In these cases too, in practice, compromises are reached, because this is a widespread calamity. The circumstances beyond their control do not affect only the tenants; they affect the landlords too, who, for various reasons, are also unable to market their apartments.

20:14 Speaker 2 In those cases too, the parties reach compromises.