Shabbat Parashat Vayeishev 5773

P'ninat Mishpat: Continuation Non-Agreement

Case: The plaintiff (=pl) worked as a fundraiser for a non-profit organization (=def), based on a one-year contract. After the year, the two sides agreed that pl would continue working for def, but a new contract was not signed. After a certain amount of time, the relationship broke down, and def fired pl without further pay any prior notice. The original employment contract stated that def had to give two months’ warning before letting pl go, and, therefore, pl demands two months’ pay. Def claims that the old employment terms do not extend beyond the end of the original agreement.

Ruling: The Rama (Choshen Mishpat 333:8), based on the Rivash, writes: “If a chazan was hired by the leaders of the community for a year with certain conditions and then he was rehired by different leaders without stipulations, he is certainly hired according to the original conditions. However, that is only if he was actively rehired for another year, but if he just continued in silence, we do not say that the original conditions continue.”

We need to understand the Rama’s distinction between continuing to work by agreement and continuing without agreement. The Rivash brings two proofs that, in his case, the original agreement continues to be intact without further stipulation. One is from the Tosefta (Kiddushin 2:9), which says that if a sale is made but the two sides disagreed about the price and made the transfer before it was worked out, whichever one is making the claim against the other loses. In other words, the negotiations were considered to have continued as they were: at an impasse. The second proof is from the Rav Hai Gaon’s ruling that when one continued living in a house that he rented for a period without discussing a new price, the old price continues even if prices in general went up.

The Shach (333:4) points out that according to the second source, the original conditions continue even if there was silence between the two parties, and this is how he and several others rule. The Aruch Hashulchan adds that if they discussed some of the conditions of the original agreement, this is a sign that the rest of the conditions are unchanged. In this case, when the two sides discussed continuing the employment, there were matters that were discussed but notification of the firing was not one of them. Therefore, def is still bound by that paragraph in the original contract.

Some understand within the opinion of the Rama that if the agreement talks about “per year,” as opposed to “for a year,” then the agreement continues even with silence. However, it does not seem to us that this is the intention of the Rama or the Rivash. It is also possible that the Rivash’s distinction between silence and agreement is limited to a case such as the Rivash’s, where there was an unusual condition (an exemption from local taxes).

Based on the various aforementioned indications, pl is protected by the condition requiring two months’ warning for termination of the employment, either because of the Shach’s opinion, because the Rama might agree in this case, or because of the Aruch Hashulchan’s distinction.

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