Shabbat Parashat Naso| 5771

Ask the Rabbi: Payment for Incomplete Work Due to External Factors

Question: I ordered a contractor to build a stairway in a deserted building belonging to the State. I told him that I do not have a license and that there might be disturbances by the neighborhood Arabs (par for my foundation’s course). We agreed to a price for the job, not time (expected to be a day). During the work, the police surprisingly came and took us all for questioning until night. While we were not charged, we were ordered not to continue building. The contractor wants to be paid for the whole job minus his savings in material not used since he did nothing wrong and he was “occupied” for a whole day. I countered that they did only about half the job, and he knew there was a chance of disturbances, although not of the police. How much should I pay? 

Answer: We cannot tell you anything definitive after hearing from only one side. However, we will advise you how to proceed under the circumstances and why.

The gemara (Bava Metzia 77a) tells of one who hired a worker to irrigate using a local river and the river dried up in the middle of the work. The gemara says that if the worker is from the town, he does not get paid for what he did not do. Since the worker should have known as well as the owner about the state of the local river, he cannot blame the owner and he does not deserve to get paid for what he did not do. The worker is also not entitled to pay in a case where neither he nor the owner should have been aware of the situation that made the work undoable (Shulchan Aruch, Choshen Mishpat 334:1).

Let us analyze your case. Although you informed the contractor that there might be problems, you did not warn him about the police, and since you were surprised, he certainly was. If the oness (extenuating circumstance) that occurred was unknown to the worker, it doesn’t make a difference that other dangers were known. It does not make sense to say that the police is just another example of a disturbance, which he was aware could occur, because (regardless of one’s political views) it is different in regard to its origin and its implications (i.e., it can prevent further work, as opposed to delaying or complicating).

The main point seems to be as follows. You indicated that you were surprised about the police. However, since your background information indicates that you do this type of work often and we know nothing about the contractor, you have to ask yourself the following question. Did you have more reason to be aware of the possibility of the police stopping the work than the contractor did? If so, based on the aforementioned rules, you should have to pay.

Assuming there are grounds for payment, there are factors to be considered. First, you are correct in deducting the savings of material. Second, there is a machloket whether payment is for the loss caused to the worker or because once he starts working, the owner is obligated based on the agreement as if he completed the work (see Machaneh Ephrayim, Sechirut Poalim 4). There should be a difference between the opinions in a case that the worker would not have had another job to do anyway. According to the former opinion, since there is no loss, there is no payment.

As there are a few elements of the question that are not conclusive, we recommend that you offer a real compromise. In this regard, especially, the following question is very pertinent. How did the price you agreed upon compare to that for the same job in a less challenging work setting? If it is similar, then, if you do not pay a significant portion of the salary, it turns out that you gave him a bad deal, which is improper (Shulchan Aruch, Choshen Mishpat 227:36). Under certain circumstances, the price paid can even be an indication of what we can assume the tacit understanding was for conditions that were not explicitly discussed (see K’tzot Hachoshen 331:1).

Finally, we urge you to set clear guidelines with future workers to cover a wide variety of possible surprises in your challenging field of avoda.

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