Shabbat Parashat Vayishlach 5780

P'ninat Mishpat: Incomplete Field Work

Case: Prior to the end of permitted field work before Shemitta 5775, the defendant (=def) hired (without a written contract) the plaintiff (=pl) to prepare the land for planting a vineyard by: straightening the land for planting, making access roads, and digging ditches. The original time pressure worsened when the regional council held up the work for a few weeks, and not all work was finished. Now (after Shemitta) pl complains that he received very little pay for his work. He is willing to do the remaining work, except what has become unfeasible due to the planting that def did, and receive full payment. Def argues that some of the work was not done satisfactorily, and he had to pay others to complete work pl was unwilling to do. Pl explains that he did not yet finish the work out of concern that def would be unwilling to pay him in full. He claims that it is unreasonable for pl to withhold almost all the payment until the work is totally complete and that def should not have proceeded until matters were worked out. [The sides agreed on an expert to provide beit din with information on many of the technical factors.]

Ruling: [We will discuss only those elements that involve legal principles.]

We start with the question of withholding pay. In general, payment for a job is done at the end of the job (Shulchan Aruch, Choshen Mishpat 339:6). However, the Rama (CM 78:1) says that when one hires someone to write a sefer that is made up of sections, he has to pay after each section is completed. Acharonim (see Mishpat Hapo’alim 30:46) say that, in general, if a price is affixed to different elements of a contractor’s job, then, in the absence of a contrary agreement, each time he finishes an element, he is to be paid for it. The expert also said that standard practice is that when a (sub)contractor is a hired for a large job (like this one), he is paid “according to progress.” Therefore, def would have to prove that there was a different agreement to justify withholding pay for those things that were completed.

Pl claims that the fact that def planted certain sections proves that the work there was sufficient. This seems to be supported by the halacha that if one uses an object that he bought after realizing there were flaws, he waives his rights to null the sale due to those flaws (Shulchan Aruch, CM 232:3). However, in this case, since there was the pressure of a very specific deadline to plant or to lose an agricultural year, his planting does not prove acceptance.

Do the delays and the time pressure excuse poor work? Usually, if neither the worker nor the employer were responsible for work being cancelled, the worker is not entitled to pay (Bava Matzia 77a). However, in this case, when pl decided to plant even though it made continued work on the area unfeasible, he actively caused the cessation of some of the work. On the other hand, def has a reasonable claim that def’s moving of equipment from the area also affected continuation of work. We rule on a compromise on this matter – pl will receive 65% pay of the pay due for this.

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