Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 76a

IF THE EMPLOYER RETRACTS, HE IS AT A DISADVANTAGE.¹  HE WHO ALTERS [THE CONTRACT] IS AT A DISADVANTAGE,²  AND HE WHO RETRACTS IS AT A DISADVANTAGE.

GEMARA. It is not stated, One or the other retracts. but THEY DECEIVE EACH OTHER, implying the artisans deceive each other:³  viz., the employer instructed him [sc. his employee]. 'Go and hire me workers;' whereupon he went and deceived them. How so? If the employer's instructions were at four [zuz per day], and he went and engaged them for three, what cause have they for resentment? They understood and agreed! Whilst if the employer's instructions were for three, and he went and engaged them at four, what then were the conditions? If he [who engaged them] said to them, 'I am responsible for your wages.' he must pay them out of his [pocket]. For it has been taught: If one engages an artisan to labour on his [work], but directs him to his neighbour's, he must pay him in full, and receive from the owner [of the work actually done] the value whereby he benefitted him!⁴  — It is necessary to teach this only if he said to them, 'The employer is responsible for your pay.' But let us see at what rate workers are engaged?⁵  — It is necessary [to teach this] only when some [workmen] engage themselves for four [zuz] and others for three. Hence they can say to him, 'Had you not told us that it is for four zuz, we would have taken the trouble to find employment at four.'⁶  Alternatively, this may refer to a householder.⁷  Hence he can say to him, 'Had you not promised me four, it would have been beneath my dignity to accept employment.' Or again, it may refer, after all, to [normal] employees. Yet they can say to him [the foreman], 'Since you told us it was for four, we took the trouble of doing the work particularly well.' But then let us examine the work?⁸  — This refers to a dyke.⁹  But even [in] a dyke, it [superior workmanship] may be distinguished! — It means that it is filled with water, and so not noticeable. Another possibility is this: In truth, it means that the employer gave instructions for four, and he went and engaged them for three; but as to your objection, 'They understood and accepted!' — they can remonstrate with him. 'Do you not believe in, Withhold not good from them to whom it is due?'¹⁰

It is obvious, if the employer instructed him [to engage labourers] for three [zuz per day], and he went and promised them four, but they stipulated, 'According to the employer's instructions', that their reliance was upon him [who engaged them],¹¹  But what if the employer instructed him [to engage them] at four, and he went and promised them three, and they said, 'Be it as the employer instructed'? Did they rely on his [the agent's] words, saying to him, 'We believe you that the employer has instructed you thus'; or perhaps they relied upon the words of the employer?¹²  — Come and hear: [If a woman said to a man.] 'Bring me my divorce,' and [he went and stated to her husband,] 'Your wife authorised me to accept the divorce on her behalf;' [to which] he replied. 'Take it, in accordance with her instructions,' — R. Nahman said in the name of Rabbah b. Abbuhah in Rab's name: Even when the divorce reaches her hand, she is not divorced. This proves that he [the husband] relies upon his [the agent's] statement. For should you maintain that he relies upon hers, then at least when the divorce reaches her hand, let her be divorced!¹³  Said R. Ashi:

1. Thus, in the first instance, if labour costs increased after they retracted, the employer may deduct the increase that he will have to pay from the wages due for the work already done. If, on the other hand, they decrease, the profit is the employer's, and the workers cannot demand the whole sum originally agreed upon less the (diminished) cost of completing the work. In the second instance, the employer must pay his workmen for what they have already done pro rata even if labour costs advance, and he must pay more for the rest. Should they decrease, however, he is bound to pay the whole sum originally agreed upon less only the diminished cost of the rest.
2. E.g., if a dyer was ordered to dye wool red, and dyed it black, he can only demand either his own expenses for dyeing or the increased value of the wool, whichever is less.
3. Because to denote that the employer and employees deceived each other, the Mishnaic idiom requires the first phrase.
4. And when an employer instructs a foreman to engage labourers at three sins, and he engages them at four, it is as though he had engaged them for himself but directed them to his employer's work.
5. For if four zuz is the usual wage. the foreman has a right to claim that sum from the employer, as stated in the Baraitha just cited, he receives the value whereby he benefitted him. If, on the other hand, three is the usual wage, the workers must accept this without any resentment, since he explicitly stipulated that the responsibility for their wages rested on the employer.
6. Hence they have righteous cause for resentment. Yet, since he stipulated that the employer was responsible for their wages, they have no legal redress.
7. I.e., who works for himself, but if offered a high wage, is willing to work for another.
8. To see if it is really worth the higher wage, in which case the employer must pay four, notwithstanding his instructions. This, however, is only when some receive four zuz for superior work, but if none do, they have no legal claim. (H.M. CXXXII, 1 and [H], a.l.)
9. They were engaged to dig a dyke.
10. Prov. III, 27. Though they undertook to work for three they are justified in resenting that the employer's agent offered them less than he might have done.
11. I.e., they certainly did not stipulate for less.
12. I.e., by saying, 'Be it as the employer instructed', they meant to stipulate that if he had stated more than three, they were to receive the higher wage.
13. A woman is not divorced until the divorce actually reaches her hand or the hand of an agent appointed by her for the express purpose of accepting it on her behalf: further, an agent's powers are strictly limited to the terms of his appointment, and he may not exceed them in the least. Now, in this case, the wife merely authorised the agent to bring it to her, whereas the agent stated to the husband that he was delegated to accept it on her behalf; whilst the husband, in handing him the divorce, asserted that he was giving it in accordance with her instructions. Now, no man can take a divorce to a woman on her husband's behalf, unless her husband appoints him for that purpose; and a husband cannot authorise a man to accept a divorce on his wife's behalf, i.e., that by his acceptance she shall be divorced, for such appointment is the wife's prerogative. Hence, when the husband said, 'Take it in accordance with her instructions', he must have meant, 'I believe that she appointed you to accept it on her behalf, that by your acceptance she should become divorced'; consequently he did not appoint him as agent to take it to his wife. (For though the wife had appointed him as her agent to bring it to her, the husband too must appoint him as his agent to take it to her; otherwise the divorce is invalid. But in this case, the husband, believing that he was agent for acceptance, would naturally not instruct him to take it to her.) Therefore, she is not divorced at all, neither by his acceptance, since she did not authorise him to accept it for her, nor even by her own, since he had not been authorised by the husband to take it to her. Now, this holds good on the hypothesis that the husband relied on the agent's statement only. But, if it be assumed that he meant, 'I give it to you exactly in accordance with her instructions, and not merely in accordance with your word,' that is tantamount to saying, 'As she has instructed you to be her agent to bring it to her, so do I instruct you to be my agent to carry it to her'; and therefore, when it reaches her hand, she should certainly be divorced. This proves that the husband relied on the agent's statement only, and by analogy, the workers rely upon the employer's delegate.

How now! That were well, had the reverse been taught, thus: [If a woman said to a man,] 'Accept the divorce on my behalf;' and he [went and stated to her husband.] 'Your wife instructed me, Bring me my divorce,' [to which] he replied. 'Take it, in accordance with her instructions: and had R. Nahman ruled [thereon] in the name of Rabbah b. Abbuha in Rab's name that immediately the divorce comes into his [the agent's] hands, she is divorced; that would have proved that he [the husband] relied upon her word.¹  Again had he ruled that [only] when the divorce reaches her hand, is she divorced; that would shew that he relied upon the agent's statement.²  But there [where R. Nahman did state his ruling], it is because the agent himself entirely cancelled³  his appointment, by declaring, 'I am willing to be an agent for acceptance, but not for delivery.'⁴

[Reverting to the Mishnah:] If you prefer I can say, this Tanna designates retracting too, 'deceiving'.⁵  For it has been taught: If one hires labourers and they deceive the employer, or the employer deceives them, they have nothing but resentment against each other [but no legal redress]. Now, this holds good only if they have not gone [to the scene of their labour]; but if ass-drivers [are engaged to convey a load of grain from a certain place and] go [there] and find no grain, or labourers [hired to plough a field] go and find the field a swamp [unfit for ploughing], he must pay them in full; yet travelling with a load is not the same as travelling empty-handed, nor is working the same as sitting idle.⁶  [Moreover,] this holds good only if they have not commenced work; but if they have commenced work, the portion done is assessed for them.⁷  E.g., if they contract to harvest [a field of] standing corn for two sela's and they harvest half, and leave half; or to weave a garment for two sela's, and they weave half and leave half, the portion done is assessed: if it is worth six denarii, he must pay them a sela' [Four denarii], or they can complete the work and receive two sela's;⁸  if it is worth a sela', he must pay them a sela'.⁹  R. Dosa said: That which still remains to be done is assessed. [Thus:] if it is worth six denarii, he pays them a shekel [two denarii], or they can complete their work and receive two sela's¹⁰  if a sela', he must pay them a sela'. Now, this holds good only if there is no irretrievable loss [if the work is postponed until fresh labourers are found]; but if there is, he can engage [workers] at their cost, or deceive them. How does he deceive them? He says to them, 'I have promised you a sela'; come and receive two.' To what extent may he engage [workers] against them? Even to forty or fifty zuz.¹¹  But when is this said, [only] if no artisans are available for hiring;¹²  but if there are, and he [the first worker] says to him, 'Go out and engage one of these,' he has nothing but resentment against him.¹³

A tanna recited before Rab:¹⁴  He must pay them in full. Whereupon he [Rab] observed: My uncle [R. Hiyya] said, 'Were it I, I would have paid them only as unemployed labourers:'¹⁵  yet you say. 'he must pay them in full'! But surely, it is taught thereon: But travelling with a load is not the same as travelling empty-handed, nor is working the same as idling! — Now it [the Baraitha] had not been completed before him [Rab].¹⁶  Others say, it had been completed before him,¹⁷  and he [Rab] observed thus: My uncle said, 'Were it I, I would not have paid him at all';¹⁸  yet you say [he must pay him] as an unemployed labourer! But this [Baraitha] opposes it! — There is no difficulty: the latter ruling is if he viewed the field the previous evening; the former, if he did not.¹⁹  Just as Raba said: If one engaged labourers to cut dykes, and rain fell and rendered it [the land] waterlogged [making work impossible], if he inspected it the previous evening,

1. Since the divorce takes effect immediately the agent accepts it.
2. And thus himself appointing him an agent to take the divorce to his wife.
3. Lit., 'uprooted'.
4. By claiming that he was an agent for acceptance when in fact he was merely authorized to bring her the divorce, he shewed unwillingness to take all that trouble, and so ipso facto cancelled his own authority. Therefore, even if the husband's assertion meant that he relied upon his wife, and the agent, moreover, subsequently changed his mind and did deliver it, the delivery is invalid, since he himself had destroyed his authority. But in the hypothetical reverse case posited by R. Ashi, the agent's statement that he was empowered only to bring it to the wife, when in fact he was authorised to accept it, did not annul his powers; if he was willing to go so far as to deliver it, he was certainly prepared for the lesser service of accepting it on the wife's behalf.
5. I.e., the Mishnah means that the deceit was between the employer and the labourers, one side having retracted from the agreement, and this too is called 'deceiving'.
6. I.e., though the labourers can claim for the loss of the day's work, and the ass-drivers likewise, a man is always prepared to accept somewhat less than a full day's wages if he is permitted to be idle that day, and it is only to that lesser sum that they are entitled.
7. In the first clause the reference is to time workers: here, to workers who contracted for the whole task, e.g., to plough a field for a fixed remuneration.
8. I.e., if the half done is now worth six denarii, labour costs having advanced, so that the employer must pay six denarii for the other half, he must nevertheless give them the sela' (four denarii) for their half, although he thereby loses on the whole: for this Tanna rejects the view of our Mishnah that he who breaks the agreement is at a disadvantage, as explained on p. 437. n. 8.
9. v. infra 77a.
10. R. Dosa agreeing with the Tanna of our Mishnah.
11. I.e., he may even pay fresh workers for the remainder much more then the first were to receive for the whole, and recoup himself from the first batch.
12. Hence he must pay far above the normal.
13. In any case the term 'deceiving' is employed in this Baraitha to denote 'retracting' and so likewise in our Mishnah.
14. In connection with the above: 'if the ass-drivers went and found no grain etc.'
15. As explained on p. 441, n. 6; cf. also p. 398, n. 2.
16. I.e., when the tanna recited the Baraitha and said 'he must pay in full', he went no further, whereupon Rab observed that his uncle's view differed.
17. I.e., the Tanna had added, 'but travelling with a load etc.', and yet Rab observed that his uncle differed.
18. It was their misfortune that the field proved to be a marsh.
19. Rashi: if the labourer inspected the field the previous evening, he has no claim now, since when he undertook to plough it, he saw the condition of the field. Maim: If the land owner inspected it the previous evening, found it fit, and engaged workers, but overnight heavy rains turned it into a swamp, the labourers have no redress, since it was not the employer's fault.