Shabbat Parashat Vayigash 5784

P'ninat Mishpat: Fee for a Fired Toein Rabbani – part II

Case: The defendant (=def) hired the plaintiff (=pl), a to’ein rabbani (rabbinical court lawyer) to represent her, as she sought a get and favorable custody and financial arrangements. Def agreed orally to pay 35,000 NIS, with delayed payment, for pl’s work until the end of the process. In the first court hearing, def’s husband gave a get, and the foundations of custody and the financial matters were laid in the first two hearings. Def received all of the governmental child support (high due to special needs children), even though she worked and the two had joint custody. Child support was to be dealt with later. A few weeks after the second hearing, which included a tiny adjustment in custody, def, at the urging of her new boyfriend (=bf), fired pl (before being paid anything), replacing him with a lawyer (to receive 25,000 NIS plus VAT). Pl negotiated with bf, who eventually agreed to give pl 4,000 NIS in cash. Pl took the money, refused to sign a waiver of additional payment, and now demands 31,000 NIS plus VAT. Def counters that pl did very little, qualitatively and quantitatively, deserved to be fired, and also waived any right to additional pay, by accepting the 4,000 NIS payment.

Ruling: We saw last time that def was not justified in firing pl, and pl deserves to be paid for what he did.

It is difficult to determine the percentage of work pl did since the work is open-ended and the main attainments were reached in the beginning of the process. We estimate that pl did 75% of the job (worth 26,250 NIS).

Does pl get paid for what he did not do because he was improperly fired? The gemara (Bava Metzia 76b) says that when an employer fires someone who started working, he gets paid until the end of the job he was supposed to do. The Perisha (Choshen Mishpat 333:2) says it depends if he is able to replace the job after being fired. The Netivot Hamishpat (333:7) says that since a kablan (paid by the job, not by time) can do the job whenever he wants, he always gets paid for what he did not do. In this case, the Perisha should agree that pl deserves pay, since the work that was left to do was not time intensive.

However, the pay is adjusted down because of the advantage of not having to work (po’el batel). There is a machloket how much to take off for this. In this case, because the work was open-ended, we will take off on the higher end, 50% of the amount due. After all the calculations, pl deserves 26,625 NIS in addition to the 4,000 NIS he already received.

Pl’s demand to add VAT is rejected. More frequently a quote includes VAT, and pl, who wants to extract money, needs to prove he deserves it.  

Regarding def’s claim that pl was mochel when receiving the 4,000 NIS, if the disagreement were factual, we would believe def based on a migo she could have denied promising 35,000 NIS. However, def agrees that pl planned to receive more than 4,000 NIS but tricked them into giving that amount. She thinks that, halachically, this means he cannot receive more. It turns out that the money pl received was a form of tefisa (grabbing, here with trickery rather than force), which is sometimes permitted, especially when the grabber can prove he deserves what he took (Shulchan Aruch, CM 4:1, and here, pl did enough publicly to deserve 4,000 NIS. Taking the money without an actual mechila did not preclude receiving the rest.

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