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Shabbat Parashat Chayei Sara 5778

P'ninat Mishpat: Who Hired the Plaintiff?

(based on ruling 76012 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl) is an architectural company that prepared plans of a building project in a yishuv settlement. The defendant (=def), a partner in a contracting firm that built the project, paid for the work. After subsequent communication with def, it was decided that pl continue to work, at a discounted rate, on plans for additional housing units in the same settlement. Def paid partially, and pl is suing for the rest of the amount plus adjustments for late payment (7,337 shekels). Def says that while he encouraged the matter, since he was not assured of getting the second building contract (which he did not get), it was the yishuv, not him, who obligated itself to pay. Pl say definitively that def did not tell them that the yishuv was responsible. Def and the yishuv’s administrator at the time were not conclusive about what pl was told, just that pl knew that def was not assured of the contract.


Ruling: Due to the central role that yishuvim take in the legally unusual acquisition of land in Judea and Samaria, land set for development is considered as if it is owned by the yishuv. The gemara (Bava Metzia 118a) rules that if Reuven asks a worker to do work in Shimon’s field, Reuven has to pay him and can then ask for compensation from Shimon. There is a machloket among Rishonim about a case in which the worker knew the field belonged to Shimon but was not told whether Reuven or Shimon would be paying him. Tosafot infers from the gemara that Reuven is obligated only when the field appears to be his own, and the Tur (Choshen Mishpat 336) concurs. The Beit Yosef (ad loc.) infers from Rashi that Reuven, who “hired” the worker, is obligated unless he specified that someone else would be paying. The Shulchan Aruch (CM 336:1) rules like Tosafot. The S’ma (ad loc. 4) points out that the requester is obligated to pay the worker if the worker did not know it belonged to someone else even if the former intended that the owner of the field would pay.

In our case, pl knew that def was not the direct beneficiary of his work, so that ostensibly def should be exempt. However, due to several distinctions, we consider def the employer. 1. All agree that for the first part of the work, def was responsible, and when one hired someone for a certain period and then rehired without stipulation, we assume that the conditions are the same as they were the first time (see Rama, CM 333:8). 2. Pl’s price estimate was sent to def and included a reduction of the fee of the two jobs due to the volume of work provided, which does not make sense if there were different employers for the two parts. 3. Def continued to pay pl and gave them receipts on their company forms. 4. Even if the yishuv promised to take some responsibility, no one bothered to inform pl (the inconsistent testimony of the yishuv’s former director shows that he did not remember well and is thus not particularly reliable). 5. According to one dayan, this is different from a case of having the worker work in someone else’s field because there was a good chance that def would end up being a major beneficiary.

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