Shabbat Parashat Vayeitzei | 5767
Compensation for Late Payment of Salary
(based on Halacha Psuka, vol. 19 - A Condensation of Piskei Din Rabbaniim,
vol. XV, pp. 240-253)
[Because of the importance of the question of compensation for late payments we are bringing a second treatment of the general topic we discussed last week.]
Case: The plaintiff worked for the defendant and was paid late. The plaintiff demands the 5-10% a week additional that Israeli law allows to be levied against the employer. The defendant says this is forbidden because of the laws of ribbit (forbidden usury).
Ruling: The Ohr Zarua (Bava Metzia 181) cites the Ra’avya, who says that one who withholds a worker’s salary has to pay compensation for the delay. The Ohr Zarua, Beit Yosef (Yoreh Deah 160), and Shach (YD 176:8) argue that this is forbidden as ribbit. However, the Bach (YD 160) says that if the worker seized compensation, we cannot extract it from him.
The Maharshdam (YD 222) says that the objection to the Ra’avya is because the payment was imposed. However, if one wants to compensate for his wrongdoing, he may. The Avnei Nezer (YD, I, 133) argues, since if there were no problem of ribbit, one could even demand payment. The Maharsdam must posit that there is not full ribbit in compensating for late payment, whereas others forbid it because it looks like ribbit. Under those circumstances, one may pay voluntarily. Even the Avnei Nezer agrees that if the delay was willfull, he is like a thief and there is no problem of ribbit.
As opposed to our discussion about making up for losses caused by the delay, the payments prescribed by Israeli law are higher and are real penalties. Yet, one could claim that since this is the accepted law of the land, it is equivalent to an agreement between the sides to pay a penalty under these circumstances. However, in regard to payments that increase with time, there is a violation of ribbit. Although there is a machloket whether this is forbidden from the Torah or rabbinically, in a case where the obligation comes as wages rather than a loan, it is certainly only rabbinic.
One can argue that the fact that the worker continues to work for the employer makes things more lenient. Rava (Bava Metzia 73b) says that although one cannot pay workers more to delay their receiving wages, if they continue to work until payment is due, the payment is not considered late. As he has not finished working, there is no delay to which ribbit would apply. However, this logic applies only to a one-time payment. If wages go up continuously, it is viewed as ribbit.
We do find (Shulchan Aruch, YD 177:15) that one who promised his daughter’s fiancé a dowry by a certain time may promise that if he delays he will increase the dowry periodically. However, that leniency applies only when the original obligation is voluntary. In contrast, regarding wages, which are obligatory by nature, one may not be obligated to increasing payments.
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