By Rabbi Yirmiyohu Kaganoff
In Parshas Ki Seitzei, the Torah instructs “Beyomo sitein secharo velo sa’avor alav hashemesh,” “On that day (that is, the day the work was completed) you should pay his wage, and the sun shall not set (without him receiving his payment)” (Devarim 24:15). The Torah mentions two mitzvos; a positive mitzvah (mitzvas aseh) and a negative mitzvah (lo sa’aseh) to guarantee that a worker is paid before sunset of the day that he performed his job. Thus, someone who pays his worker on time fulfills a positive mitzvah, whereas if he neglects to pay him on time and the worker demands payment, he has trangressed a lo sa’aseh.
The Torah gives us a definition of “on time” -- before sunset. This mitzvah is mentioned in Parshas Kedoshim as well. However, in Parshas Kedoshim, the Torah presents the mitzvah somewhat differently: “Lo salin pe’ulas sachir itcha ad boker,” “The wages of a worker shall not remain with you until morning” (Vayikra 19:13). Here the Torah requires that the worker be paid before morning, implying that one has the entire night to pay him, rather than being responsible to pay him before the day is over. The two verses appear contradictory, one implying that I must pay my worker before sunset, the other implying that I have until morning.
Chazal resolve this conflict by explaining that there are indeed two deadlines, the end of the day and the end of the night, but that the two pesukim discuss different cases. The pasuk in Ki Seitzei discusses a worker whose job finished precisely at the end of the night. Such a worker must be paid before the following sunset, which is the first deadline that arrives after he completed his job. However, the pasuk in Kedoshim refers to a worker who completed his job at the end of the day. Such a worker must be paid by morning.
Thus, the two verses together teach that there are two payment deadlines, one at sunset and the other at daybreak. One is obligated to pay his worker before the next deadline that occurs after the job is completed. If the work was completed before the end of the day, he must be paid by sunset. If the work was completed at night, he must be paid before daybreak (Bava Metzia 111a, quoting the Amora, Rav). It should be noted that one violates the lo sa’aseh only in a case where the worker demanded payment and the owner did not pay on time. Furthermore, as we will note, there is no violation if it is understood or prearranged that payment will be delayed.
WHAT TYPE OF WORK IS INCLUDED IN THIS MITZVAH?
The Torah was very concerned that a worker should be paid on time. This mitzvah applies not only to an employee but also to a contractor who is hired to perform a specific job; he must be paid by the first deadline after the job is completed. It also applies to someone who works on his own premises, such as small appliance repairs, dry cleaning, and tailoring. Payment on these items is due by the first deadline after the item is returned (Shulchan Aruch Choshen Mishpat 339:6).
Likewise, someone hired for a specific length of time must be paid by the first deadline after completion of employment. In all these situations, if the job was completed (or the item returned) during the day, the worker must be paid by sunset. If the job was completed by night, he must be paid by morning.
This mitzvah applies to all kinds of hired work, whether the worker is a contractor or an employee, permanent or temporary, poor or wealthy, adult or minor. Thus, by paying on the day we receive the service we fulfill the mitzvah of beyomo sitein secharo, paying a worker on the day he completes a job, as well as fulfilling other mitzvos that will be mentioned later in the article. The following is a partial list of workers included in this mitzvah: automobile and appliance repairmen, babysitters, dentists, dry cleaners, house cleaners, housing contractors, lawyers, physicians, psychologists, rebbes, teachers, and tutors.
EXAMPLE:
Shimon picked up his garment from the tailor, who asked him for payment. Shimon forgot to bring money to pay the tailor, asking him if he minds waiting a couple of days until Shimon is back in the neighborhood. The tailor answered that his rent is due today and he is short on money. Shimon is obligated min hatorah to make a special trip to pay the tailor today. Of course, his reward for fulfilling the mitzvah is increased many times because of the inconvenience involved.
Similarly, one is required to pay the doctor on the day of the appointment unless other provisions have been prearranged. If I hire a teenager to mow the lawn, I must pay him before the end of the day when he finishes the job. I should not delay payment to a later date because of my convenience.
An employee or hiree must be paid in cash (Tosafos Bava Basra 92b; Shach Choshen Mishpat 336:4) or by check that he can readily convert into cash. One may not pay a worker or contractor with merchandise unless this was arranged in advance.
The employer has not fulfilled his mitzvah of paying on the day the work is done if he pays with a post-dated check or a check that cannot be immediately cashed (for example, the bank is closed for the day). Again, if the employee is told before hiring that these are the arrangements, then there is no violation.
In keeping with the Torah’s ideas of protecting worker’s rights, it is prohibited for me to call a repairman knowing that I have no money to pay him, without telling him that payment will be delayed (see Ahavas Chesed 1:10:12).
RENTALS
Bal talin also applies to rental arrangements. Thus, if I rent an appliance or automobile, I must pay the rent by the sunset or daybreak after the rental is completed.
EXAMPLE:
Leah borrows a wedding dress from a gemach that charges a fee for dry cleaning and other expenses. When she returns the dress, she should pay the gemach before sunset or daybreak, whichever comes first.
SMALL WAGES AND SMALL EMPLOYEES
Even the delay of a wage less than a perutah is a violation of bal talin (Ritva Bava Metzia 111b). As mentioned above, I am required to pay a minor on the day he performs a job for me. Thus, if I hire a child to run an errand for me, I must pay him that day (Ahavas Chesed 1:9:5). Furthermore, if I offer a young child a candy to do a job, I am required to pay him the candy the day he did the job.
EXAMPLE:
Reuven asked an eight-year old to buy him an ice cream cone, offering the eight-year old to buy himself a cone at the same time. The grocery had only one cone left. If Reuven takes the cone for himself, he must make sure to buy the child a cone before sunset today. (In this instance, it will not help Reuven if the child says that he does not mind, since a child cannot waive his legal rights.)
Running a large business or being preoccupied is an invalid excuse for not paying on time (Tosafos Bava Metzia 111a s.v. Amar). Furthermore, arranging that someone else pay the workers or contractors does not exempt the owner from responsibility if the agent is remiss. This is because of a halachic principle that one may not assume that an agent carried out a Torah command on my behalf (see Nesiv HaChesed 1:10:25).
WHAT IF I DIDN’T REALIZE I WOULD BE EXPECTED TO PAY THAT DAY?
Unless there was a reason to assume that I was not expected to pay until later, I am responsible to pay the day the work is performed.
EXAMPLE:
Mr. Siegal enters the doctor’s office and sees a sign on the wall, “Payment is due when service is rendered.” Mr. Siegal had assumed that he would pay when the bill arrives, and he has no money until his next payday. He should inform the receptionist of his inability to pay and request that the doctor be so informed before the appointment.
WHAT IF IT IS ASSUMED THAT THE WORKER IS PAID LATER?
The Gemara (Bava Metzia 111a) discusses the following situation and rules it halachically acceptable. The Jewish merchants of Sura hired workers and paid them at the end of the next market day when the merchants had extra cash. Until market day, the merchants would use their available cash to purchase more merchandise (Ritva ad loc.), and the workers were always paid after market day. The Gemara states that these merchants did not violate bal talin since it is assumed that the workers will not be paid until the following market day.
A contemporary analogy is when a business pays its workers on Tuesdays for the week’s work or on the first of the month for the previous month. In these situations, there is no violation of bal talin since this arrangement is assumed.
WHAT IS THE HALACHA IF AN AGENT HIRED THE WORKERS?
The Gemara (Bava Metzia 110b) discusses a case where a foreman hired workers on behalf of the employer, notifying them that he is not responsible for their wages. Subsequently, the wages were delayed. The Gemara states that neither the foreman nor the employer violated bal talin. The foreman did not violate because it was clear that he is not personally obligated to pay the workers. The owner does not violate bal talin since he did not hire the workers himself. Nevertheless, he is still required to pay them on time, if possible (Shulchan Aruch Choshen Mishpat 339:7).
WHAT SHOULD I DO IF I MAY NOT BE ABLE TO PAY ON TIME?
To avoid violating any Torah mitzvos, the owner should tell the workers before they begin working that he is making a condition that they forgo their right to be paid on time (Nesiv HaChesed 1:10:24).
WHAT SHOULD THE OWNER DO IF HE WILL BE OUT-OF-TOWN ON PAYDAY?
The owner is responsible that his workers are paid on time. If he will be absent when his worker finishes, he must make provisions to pay the workers on time (Ahavas Chesed 1:10:12).
EXAMPLE:
Mrs. Schwartz is taking her child to the doctor and has hired a babysitter to take care of her other young children until her teenaged daughter comes home at 4:00 p.m. Unless Mrs. Schwartz arranges otherwise, she must see that her babysitter is paid before sunset.
There are several ways Mrs. Schwartz can avoid violating the Torah’s law. When hiring the sitter, Mrs. Schwartz can tell her that she is hiring her with the understanding that the sitter waives her right to be paid that day. In this case, if Mrs. Schwartz fails to pay the sitter before sunset, she will not violate any prohibition, although she will have missed the opportunity to perform a mitzvah. Therefore, it is better if Mrs. Schwartz gives her teenaged daughter money to pay the sitter. This way Mrs. Schwartz has fulfilled the mitzvah of paying her worker on time. Optimally, Mrs. Schwartz should do both; that is, she should ask her sitter to waive her right, just in case the sitter is not paid on time, and arrange for her daughter to pay, so Mrs. Schwartz fulfills an extra mitzvah.
If the sitter did not waive her right to be paid before sunset, Mrs. Schwartz must check with her daughter later in the day that she indeed paid the babysitter (see Nsiv HaChesed 1:10:25).
WHAT IF THE OWNER HAS NO MONEY WITH WHICH TO PAY?
Kalman Mandel’s business is running a cash flow problem, and he is running into difficulty paying his contractors. There are several shaylos he should ask his rav.
Kalman has money in a personal bank account. Is he required to pay his contractors with this money, or can he assume that since his business is incorporated that he is only obligated to pay them from his business account?
How much is the business required to liquidate to pay the contractors? How aggressive is the business required to collect its receivables? Am I required to sell merchandise at a lower price?
Some poskim contend that one is required to borrow money in order to pay on time. Chofetz Chayim (Ahavas Chesed 1:9:7) rules that one is required to borrow money to pay one’s workers on time, whereas Pischei Tshuva (339:8) and Graz rule that it is the correct thing to do (midas chassidus) but is not required.
According to Biur Halacha (242:1), if one does not have enough money both to pay wages due on Friday and to make Shabbos, one is required to pay the wages even if, as a result, he will not have money for Shabbos. If sunset is approaching and the workers demand payment, he must attend to paying his workers even if he is unable to daven mincha as a result.
As we have mentioned before, if the employee does not claim payment or states that he does mind if the payment is delayed, the employer did not violate bal talin. Nevertheless, the payer should still attempt to pay on time and he fulfills a mitzvah by doing so.
It is wrong for the owner to delay paying the worker, forcing him to repeatedly return for payment. These actions violate the mitzvah taught by the pasuk in Mishlei, “Al tomar li’rei’acha lech vashuv umachar etein ve’yeish itach,” “Do not tell your neighbor ‘Go and come back, I’ll pay you tomorrow,’ when you have the (money) with you” (Mishlei 3:28).
If the employer refuses to pay his worker altogether, he violates the prohibition of “Lo sa’ashok es rei’acha,” “Do not hold back payment due your neighbor” (Vayikra 19:13). If the employee or contracter is needy, the employer violates an additional prohibition “Lo sa’ashok sachir ani v’evyon,” “Do not hold back payment due to a poor or destitute person” (Devarim 24:14).
The Gemara (Bava Metzia 111a) counts a total of seven Biblical mitzvos involved in withholding wages, including gezel, stealing, as well as the above-mentioned mitzvos.
WHAT SHOULD THE OWNER DO IF HE IS SHORT ON MONEY?
What should the owner do when he does not have enough money to pay all his employees and contractors? The Chofetz Chayim discusses this exact shaylah in his sefer Ahavas Chesed. He rules that if some of the workers are poor, he should pay them first. If all or none of the workers are poor, he should divide the available funds among them equally.
MAY THE OWNER OFFER EXTRA COMPENSATION FOR DELAYED PAYMENT?
The owner missed his deadline. Feeling bad, he considers compensating his workers by providing them with a bonus for their patience. Unfortunately, although he means well, the owner has now incurred a different prohibition because this is considered as paying interest (ribis). Since he is obligated to pay his workers, the amount owed is a debt. The prohibition against interest applies to any debt, even if it did not originate as a loan. Therefore, an employer who delayed paying his workers or contractors cannot offer them compensation for the delay, nor can they charge him a late fee (Shulchan Aruch Yoreh Deah 173:12; Rema ibid. 176:6).
Similarly, if the owner is tight on cash, he may not offer his workers, contractors or other creditors a bonus if they will wait for payment. This situation might entail a Torah prohibition of ribis (see Bris Yehudah pg. 451 ftn 15). If necessary, he could arrange this with a heter iska, and a rav should be consulted.
THE CONTRACTOR IS OVERCHARGING ME. WILL I VIOLATE BAL TALIN IF I HOLD BACK PAYMENT?
When a person feels he is being overcharged, he usually considers withholding part of the payment until the matter is clarified. If indeed he is correct, this plan is not a problem. However, if he is mistaken and the contractor deserves the total amount, it means that he has violated bal talin by not paying the contractor on time if the contractor demanded payment. For this reason, the Chofetz Chayim suggests always negotiating a price with a contractor or repairman in advance.
SUGGESTION:
If the repairman is uncertain how much the work will cost, tell him (before he starts) that you are stipulating that he waive his right to be paid on time (see Graz Vol. 5 pg. 890 #18). This avoids violating the prohibition of bal talin should a dispute develop between the parties.
If I failed to stipulate this condition in advance and a dispute develops between the contractor and myself, I should discuss with a rav how to proceed. Bear in mind, that if the worker is demanding payment and I am wrong, I might end up violating a serious Torah prohibition by not paying on time.
It is important that people become more familiar with the details of bal talin in order to conduct their business dealings according to halacha. Unfortunately, not everyone realizes the mitzvos that are accomplished by paying workers on time. Apparently, this is not a recent phenomenon. Over a hundred years ago, the Chofetz Chayim decried the fact that otherwise observant people were inattentive in the observance of this mitzvah. He attributed this to ignorance of its details. Hopefully, this article will spur people to learn more about these mitzvos and their great reward.
