Photo Credit: Jewish Press

The Schillers had spent the summer in a bungalow colony. It was their last week there.

Throughout the summer, they had paid Rabbi Lerner to learn with their son, David, for half an hour a week, on Tuesday afternoon at 5:00 p.m.

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This Tuesday morning, Mrs. Schiller announced to her family: “Since it’s our last week here, I planned a special surprise for today.” The family set out for a day-long outing.

As 5:00 p.m. approached, Rabbi Lerner settled down at his table, waiting for David to come learn. The clock ticked, but David did not arrive. At 5:10, Rabbi Lerner said to his wife: “This is strange. David is usually pretty punctual.”

“Perhaps he was in the middle of a ballgame and got delayed,” his wife said. “You know, it is summer.”

At 5:15 Rabbi Lerner tried calling the Schillers, but there was no answer.

At Maariv that evening, Rabbi Lerner met Mr. Schiller. “I missed David today,” he said. “What happened?”

“I’m so sorry!” apologized Mr. Schiller. “My wife had planned a special day-long outing for today.”

“I was waiting for David,” said Rabbi Lerner. “I would have appreciated advance notice.”

“Of course,” replied Mr. Schiller. “Unfortunately, we completely forgot about David’s lesson with you.”

“I will be away tomorrow and Thursday,” said Rabbi Lerner, “so I don’t think we can make up the lesson this week.”

When Mr. Schiller returned home, he mentioned to his wife that they had forgotten David’s lesson.

“I can’t believe I forgot that!” exclaimed Mrs. Schiller. “David so much enjoys learning with his rebbi!”

“Did Rabbi Lerner say anything about payment?” asked Mrs. Schiller.

“He didn’t ask for payment,” replied Mr. Schiller, “but did mention that he was waiting and would have appreciated advance notice.”

“Even if he doesn’t demand payment,” said Mrs. Schiller, “perhaps we owe him? At least morally?”

Mr. Schiller called Rabbi Dayan and asked:

“Do we owe Rabbi Lerner anything for the missed lesson?”

“This depends on whether Rabbi Lerner lost an alternate opportunity to earn,” replied Rabbi Dayan. “In the setting of a bungalow colony this is less likely.

“The Mishnah (B.M. 75b) teaches that if an employer or employee retracted before work began, the other party has only tar’omes (rightful complaint) against him, but not a monetary claim. Some write that there is not even a heavenly monetary obligation” (C.M. 333:1; Pischei Choshen, Sechirus 10:[7]).

“In this case, you are the employer and Rabbi Lerner the employee. When David did not attend the scheduled learning session, this is comparable to an employer who retracted. Although Rabbi Lerner taught David throughout the summer, since each lesson is paid for and considered separately, each lesson stands by itself and missing it would be considered as retracting before work began. Therefore, in the absence of a lost alternate option, you have no monetary obligation.

“However, if Rabbi Lerner had rejected an alternate work option because of his commitment to you, you would be liable for the lost wages. This is considered a davar ha’aved, which is garmi (directly caused loss), and carries halachic monetary liability. Usually this payment is only partial, since the worker had free time (k’po’el batel), but regarding a melamed (teacher), we assume that he would prefer the opportunity to teach Torah to idle time, so that the employer is liable for the full wages” (C.M. 333:2, 334:4).

“In the context of a bungalow colony, unlike a professional tutor during the year, it is unlikely that David’s learning came at the expense of alternate opportunities and that the circumstances are those of davar ha’aved.

“Nonetheless,” concluded Rabbi Dayan, “since Rabbi Lerner has tar’omes, while there is no mandated payment, it is appropriate to appease him in some way, taking into account that this was an oversight, not willful canceling.”

Verdict: An employer who retracted before the worker began and did not lose an alternate opportunity has no financial liability, but should appease the worker to mitigate his rightful complaint.

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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.