Reuven was traveling from Israel to the United States. Upon arrival at the
airport in Israel, he asked a porter to carry his luggage for him from the
parking lot to the terminal, and agreed to pay the porter a certain amount
of money for this service. Reuven arrived at the terminal a few minutes
later and found his luggage, but the porter was nowhere in sight.
Is Reuven obligated to search for the porter to pay him the agreed upon
wages, when he is very pressured for time and there is a risk that he may
miss his flight?
It is important to note that in this specific case, if Reuven would not
search for the porter now and find him, it is likely that he will never
find him again.
A person is obligated to spend up to 1/5 of his possessions to fulfill a
Positive Commandment. To prevent himself from transgressing a Negative
Commandment, a person must spend all of his wealth, if necessary.
According to most Poskim, if a person would only be transgressing the
Negative Prohibition in a passive manner, by not taking action (Shev V'Al
Taaseh) this is similar to a Positive Commandment and he is only obligated
to accept the loss of 1/5 of his possessions.
If a person does not pay a worker money owed to him, even if he pays
most of it and there remains just a small debt to the worker, he
transgresses one Positive Commandment ("B'Yomo Titen Scharo" - On That Day
You Shall Pay His Wages. Devarim 24:15) and five Negative Commandments.
In our case, if the porter left because Reuven was delayed unexpectedly
and the porter had other things to attend to, Reuven is obligated to search
for the porter and pay him his full wages, even though by doing so he may
miss his flight.
However, if Reuven came to the terminal without delay and the porter just
decided to leave on his own, although the porter is still deserving of his
wages, it appears that Reuven is not obligated to spend 1/5 of his
possessions (or miss the flight). Therefore, if Reuven is under pressure
for time, he is not obligated to search for the porter.
The Rema in Orach Chaim 656 states that a person is obligated to spend up
to 1/5 of his possessions to fulfill his obligation to perform a Positive
Mitzvah, especially if it is a Mitzvah that is time bound, and if not
fulfilled now it will never be fulfilled. If it is necessary to spend all
of his wealth to prevent himself from transgressing a Negative Commandment,
he must do so. The Rema also states this in Yoreh De'ah 157:1. The Mishna
Berura (Orach Chaim 656:8-9) states that the difference is that when not
performing a Positive Commandment, you are not doing an act against the
will of Hashem, whereas when transgressing a Negative Commandment ("You
Shall Not ...") you are doing an act against the will of Hashem. It would
follow, then, that if the transgression of the Negative Commandment would
be through inaction, such as not paying a worker on time, it would fall
into the category of a Positive Commandment in that only 1/5 of your
possessions would have to be spent to do this, and not all of your
possessions. This is stated in the Teshuvos Chassam Sofer on the Shulchan
Oruch (Orach Chaim 656), and the Teshuvos Chavos Yair (139). However, the
Chidushei Rabbi Akiva Eiger on the Shulchan Oruch (Yoreh De'ah 157:1)
quotes the Teshuvos HaRivash that even in a situation of passively
violating a Negative Commandment one must spend all of his possessions to
prevent this from happening. See the Sdei Chemed (Ch. 4 Clal 107) for an
elaboration on this argument.
The Shulchan Oruch in Choshen Mishpat 339:2 quotes the Rambam that if a
person does not pay his worker his entire wages for work done, he
transgresses one Positive Commandment and five Negative Commandments.
Although the five Negative Commandments are being violated in a passive
manner, one would still be obligated to at least spend 1/5th of his
possessions to prevent himself from violating these Negative Commandments,
as stated by the Chassam Sofer quoted above. In light of this, if the
direct loss incurred by missing the flight will be less than 1/5th of
Reuven's possessions, and if the porter is not at fault for not being
available to receive payment (i.e. Reuven was delayed on the way to the
terminal), Reuven would be obligated to search for him to perform the
Mitzvah of paying a worker, especially since in this case he will be unable
to perform this Mitzvah at a later time. (See the Mishna Berura 656:8).
However, if the porter is at fault for not remaining at the terminal long
enough for Reuven to get there and pay him, although he is still deserving
of his wages, Reuven has the right to argue that he never would have hired
this porter had he known that he would be the cause of aggravation and
financial loss. He would therefore be permitted to travel, and is not
obligated to look for the porter to pay him. The debt still remains,
however, and Reuven must do his best to find the porter on his return. If
he is unable to do so, then the money should be spent in a way beneficial
to the public, as is explained in Choshen Mishpat 366:2.
This week's class is based on a column by Rabbi Tzvi Shpitz, who is an
Av Bet Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His
column originally appears in Hebrew in Toda'ah, a weekly publication in
Jerusalem. It has been translated and reprinted here with his
permission and approval.
This class is translated and moderated by Rabbi Aaron Tendler of Yeshivas
Ner Yisroel in Baltimore. Rabbi Tendler accepts full responsibility for
the accuracy of the translation and will be happy to fax originals of the
articles in Hebrew to anyone interested.
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Please Note: The purpose of this column is to make people aware of Choshen Mishpat
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individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the
presence of all parties involved!