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Employment Promises and Paying the Mohel

Employment Promises and Paying the Mohel

10-26-2017

Mazel Tov! Better call the Mohel!

Q: Reuven had a baby boy Wed. morning in Eretz Yisroel. He was interested in a particular mohel, one of the best in the business, and as he knew the mohel was very popular and got booked very quickly, Reuven called the mohel a few hours after his son was born and reserved the mohel for the next Wed. morning.  Monday evening Reuven got a call from his mother in law in London that his father in law is en route to Eretz Yisroel to be by the bris.

Reuven was both pleased and upset, simultaneously. He was pleased his father in law was going to be by the bris; he was upset because his father in law is a mohel, as well, and would be terribly offended if Reuven used a different mohel other than himself. Reuven, not wishing to stir up any family trouble, realized he will have to honor his father in law to be the mohel, so he immediately picked up a phone and called the mohel, to advise him that he won’t be needing his services Wednesday morning.

The mohel was upset. He told Reuven that three other people called him and asked him to be their mohel that morning, but he refused them as he told them he was taken. The mohel told Reuven that he cost him a job, and it’s only right that Reuven reimburse the mohel for the unrealized income.

Reuven wants to know, is he in fact mechuyav to pay the mohel what he would have paid him to do the milah?

What is fair?

Ans. Although this question is not too common, for obvious reasons, the basis for which to base a psak are seemingly quite common.

If an employer hires an employee, and the employer backs out before the start of the job, the employee has a halachic right to be upset at the employer, if it’s hard for him to find other employment.

That in halachic terms is called “taarumos”, but that does not come with any monetary compensation. (Once the job was started, the halacha is different.)

 

This halacha that there’s no monetary compensation in such a case comes with one condition: namely, that the prospective employer’s offer and the acceptance of the employee didn’t cost the employee another job.

If at the time the employer hired him the employee could’ve found another job, and by the time the employer told him that he doesn’t need the work done, the employee would not be able to find any work, in that case, the employer is considered to have caused a loss to the employee and must reimburse him, as a “poeil bateil”.

That means he pays the entire wage that the employee was going to make, minus the amount that the employee would give up not to have to do the work. [Instead of working, the employee can sit back and relax; usually the employee would be willing to give up a percentage of his wages, not to have to do the work. That amount is detracted from what the prospective employer must pay.]  

Also, if the employer had to backtrack because of an unforeseeable “oneis”, something came up that didn’t allow the  employer to fulfill his commitment, in this case, the employer will be patur.

Not So Simple

Now, the reason for this halacha, that the employer must pay the prospective employee for causing him a loss by not being able to work, is not that easy to understand, as the Ketzos HaChoshen asks in CM 333. It would seem this should only be a “grama”, an indirect cause of a loss in income, which one should, but is not halachically required to pay to the one he caused a loss to. Why then is the halacha that the employer must reimburse the employee? How is it any worse than a “grama”?

The Nesivos HaMishpat there explains that the chiyuv to pay here is a “takana” that Chaza”l made to protect the employee, although according to the classic rules of Choshen Mishpat the employer would in fact be patur.

Oneis?

Now, getting to our story; an argument can be made that originally Reuven did not know that his father in law was going to come. Now that he is coming it would seem that Reuven doesn’t have a choice in the matter and must recant on his commitment to the mohel, and therefore could be considered an “oneis”, and thus be patur. However, that’s not such a simple assertion.

Technically, Reuven can keep his commitment to the mohel, and if his father in law gets upset, so be it. It’s not as if Reuven is being forced; it’s Reuven’s decision to avoid a confrontation with his father in law at the cost of the mohel. It is not at all certain to consider that an oneis.

Maybe He doesn’t have the loss

However, there is another reason to say Reuven is patur. The chiyuv to pay a mohel is not that certain. True, the minhag is certainly to pay, but to say that one is obligated to pay a mohel if nothing was promised to him, is not all that simple.

The fact is one must do a mitzvah without getting reimbursed, if necessary. (There are visits before and after that are not part of the mitzvah. Those definitely can be charged for.) To say that the “takanah” of Chaza”l applies to such kind of work where one preferably shouldn’t be taking pay at all, is not all that logical.

Also, there’s not an exact price set in stone; it usually has a range, and since there’s no agreement beforehand, even if the halacha was that Reuven must pay the mohel, he would only have to give him the lowest amount that’s accepted in that area.

Therefore, it would be proper for Reuven to give the mohel something for his loss, but it’s very difficult to say that he is obligated to reimburse the mohel for his entire loss.

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