Mr. Stein was leading a group of students to Israel for the summer. The group had booked seats on a flight scheduled for 2 p.m. Mr. Stein arranged with private bus driver, Mr. Turk, to drive the group to the airport in the morning. Twenty-five percent of the cost was prepaid, with the remainder due upon service.
At 7 a.m., Mr. Stein received a message: “Your flight has been delayed until 9:30 p.m.”
“I must notify everyone immediately! Exclaimed Mr. Stein. “I also have to reschedule the bus.”
Mr. Stein notified all the participants and called Mr. Turk. “Our flight was delayed,” he said. “We will have to reschedule the bus for 5 p.m.”
“I’m not available at that time,” Mr. Turk replied. “I already arranged another job then.”
“In that case, we will have to cancel the order,” said Mr. Stein. “We’ll find another bus.”
“What about the remainder of the payment?” said Mr. Turk. “I turned away several potential jobs after I finalized with you.”
“Perhaps you can still find an alternate job?” said Mr. Stein.
“I don’t expect I will find another job at this late hour,” said Mr. Turk. “Most people order their buses at least the day before.”
“Even so, it’s not our fault,” said Mr. Stein. “The airline delayed the flight. It doesn’t make sense to pay you and then hire another bus. In truth, I think you should even return the prepayment!”
“While I’m not blaming you,” said Mr. Turk, “it’s not my fault either. I shouldn’t lose out the remainder of the payment.”
The two agreed to bring the case before Rabbi Dayan.
“Mr. Turk was supposed to drive our group to the airport this morning, but the flight was delayed and we had to cancel,” said Mr. Stein. “What happens with the payment?”
“A person who hires a worker who then declined alternate jobs is liable if he retracts,” replied Rabbi Dayan. “Many Rishonim base this on the principle of garmi – directly caused damage. However, this does not apply here, because Mr. Stein did not retract of his own accord but due to circumstances beyond his control – oness.” (C.M. 333:2; Sma 332:8).
“It’s not my fault either,” said Mr. Turk. “Why should I lose out?”
“The Gemara [B.M. 77a] addresses the case of a person who hired workers but circumstances nullified the job,” replied Rabbi Dayan. “For example, workers were hired to water a field but it rained or, conversely, the water source dried up. Rava ruled that the workers lose when the employer and employee are equally aware or unaware of the potential problem. Only if the employer was aware and the workers were not – e.g., he knew the river was liable to dry up and the workers did not – the employer loses and he must pay the workers.”
“Why is this?” asked Mr. Stein.
“The Rosh [B.M. 6:3] bases this on hamotzi meichaveiro alav ha’reaya (the burden of the proof is on the plaintiff), so that when the employer and employee are on equal footing, we attribute the misfortune to the workers,” answered Rabbi Dayan. “They are responsible to stipulate if they expect payment even when the work becomes irrelevant due to oness. Shulchan Aruch extrapolates from this to any unforeseen circumstance beyond control. Thus, since both parties were equally aware of the possibility of flight delay, Mr. Stein does not have to pay for the cancellation ” (C.M. 333:2; 334:1)
“What about the prepayment?” asked Mr. Stein.
“Since this halacha is based on hamotzi mei’chaveiro, Shevus Yaakov writes that the employee can maintain whatever he possesses,” replied Rabbi Dayan. “Minchas Pittim and Aruch Hashulchan [334:1] disagree when the worker later grabbed payment, but agree regarding wages prepaid willingly; the employer thereby accepted the risk. Thus, Mr. Turk does not have to return the prepayment.” (Pischei Teshuvah 310:1)