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Shabbat Parashat Miketz 5773

P'ninat Mishpat: Reclaiming Additional Pay

(from Hemdat Mishpat, rulings of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: A worker (=pl) in a yeshiva high school sued his employer (the network that runs the school =def) for not paying over the previous few months. Def admits, on the first level, to owing part of the amount claimed. However, def claims that they pay based on the pay scale of the Department of Education and that, after recalculating pl’s salary, they discovered that mistakes were made over the years to pl’s advantage. Based on these mistakes, not only does def not owe pl, but pl has to return money to def. 


Ruling: Several Rishonim (see Beit Yosef, Choshen Mishpat 126) rule that one is not believed that he deserves money due to a mistake unless he can bring witnesses to prove the claim. The assumption is that the claim that he made a mistake is weak because people usually make careful calculations before obligating themselves (Aruch Hashulchan, CM 126:13).  He is not believed even if he has a migo (corroboration to the truthfulness of his claim based on the logic that if he were lying, he would have made a better claim, such as that he already paid). This is because the assumption that one would not obligate himself (and certainly would not pay) without checking is stronger than a migo (Rama, CM 126:13). Since def was not able to prove that a mistake was made, they are not believed even if they are muchzak (presently in control of the money in dispute).

One could raise the possibility that due to the complicated bureaucratic nature of the Department of Education, mistakes in calculating their pay scale are common. On the other hand, the fact that def paid for many years in the manner they did and did not bother to check, considering the likelihood of mistake, is an indication that they were mochel (relinquished rights of compensation to) any extra pay.

In general, def, while remaining within the framework of the Department of Education, has the practice of finding ways of providing extra compensation for those it is important for them to maintain on staff. There is no question that pl has been an important member of the staff. The Rosh Yeshiva testified that because the school wanted pl to continue working there, they arranged for various benefits. It is therefore very difficult to determine which benefits (including extra pay) were intentional and which might have been unintentional. It is also very possible that those that were originally unintentional were subject to mechilla after the fact. For example, def had overpaid their junior high school principals and when they found out that this was the case, they changed the salaries only going forward but did not demand a refund of the past overpayment. This can be seen as setting a pattern.

In summary, the claim of a mistake is generally a weak one, and, in this case, there is reason to believe that even if there was a mistake, the difference was relinquished. Therefore, def’s claim of counter-suing or subtracting from the pay due is rejected, and they must pay that which is outstanding.

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Hemdat Yamim

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Yechezkel Shraga Brachfeld



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