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October 30, 2014 / 6 Heshvan, 5775
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Lost Leining

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It was summertime. Congregation Sha’ar Shamayim was relatively empty, as many of its members were away in camp or vacationing in bungalows.

The shul had a regular rotation of members who leined, but the gabbai, Mr. Gelb, was having a hard time finding someone this week. “Hello, Mr. Rosen,” he said to one. “We still need someone to lein this week. Any chance you’re around?”

“No, we’re planning to visit our children,” said Mr. Rosen.

Finally, Mr. Gelb decided that he would have to employ one of the few yeshiva boys who were around. After a few phone calls, he finally reached Eliezer.

“We need someone to lein at Sha’ar Shamayim,” Mr. Gelb said. “Any chance you’re available?”

“Yes, I am,” said Eliezer. “Do you pay for the leining?”

“We usually have a rotation of members,” answered Mr. Gelb. “When we need outside people, though, we pay $200 for the leining.”

“Great,” said Eliezer. “See you on Shabbos.”

Later that day, Eliezer received a phone call from the gabbai of another shul, which also needed someone to lein.

“Sorry, but I just committed to lein elsewhere,” said Eliezer. “Let me give you the number of a friend who might be able to help you.”

“That would be very much appreciated,” said the other gabbai.

The following day, Mr. Rosen called back Mr. Gelb. “In the end, we decided that we would visit our children next week. So, if you want, I can lein on Shabbos.”

“Oh, thank you,” said Mr. Gelb. “Meanwhile, I hired Eliezer to lein, though. I have to see if I can cancel him.”

Mr. Gelb called back Eliezer. “It turns out that one of our members can lein this week,” he said. “Is that OK with you?”

“Actually, it’s a problem,” said Eliezer. “Shortly after you called, I had another job offer, which I had to turn it down. Let me check if it’s still available.”

Eliezer called back the other gabbai. “I could be available if you still me to lein,” he said. “Did you find someone already?”

“Yes,” said Mr. Gelb. “We arranged with your friend.”

Eliezer called back Mr. Gelb. “The other shul already has someone,” he said. “I’m not out to cause the shul an unnecessary expense, but here I’m also facing a loss. I’d like to ask Rabbi Dayan.”

“That’s fine with me,” said Mr. Gelb. “Whatever he says.”

Eliezer called Rabbi Dayan and explained the situation. “Would the shul have to pay me for the leining, even if one of the members is now available to lein?”

“It would be most ethical for the shul to uphold its verbal commitment to you,” answered Rabbi Dayan. (See Rema 204:11) “However, even if the shul insisted in having its member lein, they would have a legal liability to pay you for the leining, since they caused you to lose an alternate job offer. However, this would obligate them only in po’el batel, approximately half the amount, since you are spared the time preparing the leining and of leining on Shabbos.” (C.M. 333:2; Taz 333:1)

“I’m surprised that you said the shul would have a legal liability, not just a moral obligation,” said Eliezer. “Isn’t this a form of indirect loss, grama? We learned in yeshiva that mevatel kiso shel chaveiro – one who restrains financial gain from his friend – is considered only grama, which does not have an enforceable obligation.”

“Excellent! A number of acharonim ask your question,” replied Rabbi Dayan. “In fact, the Ketzos (333:2-3) cites the Maharam that one does not a full legal liability for this reason. However, his opinion is not accepted.” (See Pischei Choshen, Sechirus 10[10])

“Why not?” asked Eliezer. “What explanation is there?”

“There are a few explanations,” replied Rabbi Dayan. “Tosfos and the Rosh view this as garmi, a direct cause, for which there is legal liability [SM"A 332:8]. Others explain, based on the language of the Shulchan Aruch, that the liability is one of davar ha’aved in employer-employee relationships. An employee cannot quit a job if it will cause significant loss to the employer; if he does, the employer can employ others at his expense. In parallel, the employer cannot retract in a situation that causes the employee a loss; if he does, he is liable to compensate the employee for the lost wages.” (See R. Akiva Eiger 333:2)

“Are there other explanations?” asked Eliezer.

“The Ketzos suggests that the responsibility is on account of the liability of sheves, missed employment, when damaging another,” said Rabbi Dayan. “Nesivos [333:3] suggests that this liability is an institution of Chazal.”

“What if I found another shul to lein in, but with lower pay?” asked Eliezer.

“Sha’ar Shamayim would then be liable to pay the difference between the jobs,” answered Rabbi Dayan.

About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to subscribe@businesshalacha.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail ask@businesshalacha.com.


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