Shabbat Parashat Tetzaveh| 5771
P'ninat Mishpat: Compensation for Withheld Salary(condensed from Shurat Hadin, vol. VI, pp. 170-175)
Case: One (=pl) of several workers of a municipal religious council (=def) who were paid months late is suing def for compensation for the delay. There are two questions to deal with: Can pl “charge” for withheld money? Is there a problem of ribbit (usury) if def pays?
Ruling: The rule is that if Reuven prevents Shimon from access to Shimon’s money, Reuven does not have to pay for what Shimon might have earned (Yerushalmi, Bava Metzia 5:3). However, if Reuven kept Shimon out of his field, he must compensate for lost earnings. The Rama (Choshen Mishpat 292:7) rules that one who watches an object for his friend and refuses to return it when asked must pay for lost revenue. The Shach (ad loc. 15) considers this indirect loss and exempts.
The Chavot Yair (151) distinguishes between cases where one withheld the item after originally receiving it appropriately, in which case it is gerama (indirect damage) and exempt, and where he originally took it improperly, in which case it is garmi (semi-direct damage) and he is obligated. He makes another distinction between where it is easy to profit from the object, in which case he must pay, and where it requires some wisdom, in which case it is not clear that the profit would have been obtained. Another distinction depends on whether the withholder used the money, in which case he is obligated (see Netivot Hamishpat 292:13). If the person who took it did not return it due to oness (factors beyond his control), he is certainly exempt, as even when one does garmi by accident without oness, there is a machloket whether he is obligated (see Shach, Choshen Mishpat 386:1, who exempts).
In our case, there are no grounds for obligating def. There was no stipulation of payment for withholding; def did not use the money; it is not clear that pl would have gained from the money; def withheld the money because there was none available.
Now let us discuss if it is permitted for def to appease pl by paying more or whether that is a violation of ribbit. The Pitchei Teshuva (Yoreh Deah 161:1) cites a machloket between the S’ma and the Shvut Ya’akov, with the latter saying that compensating for paying late is forbidden. However, it is possible that his strict ruling is only in regard to a case where the obligation was from a loan, where the full prohibition of ribbit applies. The Chatam Sofer (VI, 26) distinguishes between the subjects, as unlike loans, where the Torah was concerned with the welfare of the borrower, regarding employment, the Torah is more concerned for the worker. The Darchei Teshuva (YD 161:12) adds that it is warranted to appease the worker to compensate for violating the sin of paying late. The Chavot Yair, on the other hand, says that it is still ribbit. If def had withheld the money wantonly, we could say he has a moral obligation to compensate, which might make it not considered ribbit. However, since this is not the case here, def does not have a moral obligation to pay and doing so may be ribbit.
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