JUSTICE - No. 65

26 No. 65 JUSTICE is low. Does a sale of such nature, which appears to be against the interest of the orphans in obtaining the highest price in exchange for their land, have legal force? Halakhic scholars have differing views with respect to such a case. The Rashbatz is of the opinion that the sale of land during an epidemic is void. His reasoning is“that there is mistake and misleading in this sale … because it was entered into during an epidemic, when people do not intend to buy other than at a very low price.” In his opinion, the sale was carried out under a kind of coercion, and not of free will, and therefore it is void ab initio. Contrary to this opinion, the Rama believes that if the rabbinic court sold the orphans’ assets during an epidemic at a very low price, like other land at that time, “what they did is done,” and the sale cannot be canceled. 24 A similar opinion transpires from the comments on the Tur that RabbiYosef Karo, wrote in his work“BeitYosef.” 25 Despite the apparent disagreement between the Tashbatz and the Rama, the circumstances of each case led to different results and there is no dispute between them regarding the legal principles. Contractual and Property Implications As stated above, a significant portion of the responsa in Jewish law deals with the implications of an epidemic on frustration of a contract or a property transaction. 26 The Talmud (Bava Mezi’a 77a) deals with frustration of a labor contract, when the worker was unable to fulfill his obligation to work due to mourning or illness. It establishes the principle of exemption due to involuntary non-fulfillment of the contract: “If one engages a laborer, and in the middle of the day he [the laborer] learns that he has suffered a bereavement, or is smitten with fever … he [the employer] must pay him his wages.” 27 In the commentary there, Rashi (France, 11 th century) explains: “As he is coerced, he is not to be fined and placed at a disadvantage, and [the employer] gives him half of his wages.” In other words, since the laborer stopped his work due to circumstances beyond his control, he is not looked upon as a person who intentionally breached a contract and therefore, he is not required to pay compensation for the losses incurred by his employer. However, the employer is obligated to pay the laborer only the proportionate share of his wages, “half of his wages,”as Rashi states. What is the law regarding payment of wages by an employer who contracted with a laborer but does not provide him with the agreed-upon work as a result of circumstances that are beyond his control? In this matter, there appears to be a contradiction, or tension, between two Talmudic discussions: 28 Bava Mezi’a 76b and Bava Metzi’a 79a. The first discussion (Bava Mezi’a 76b) deals with a laborer who was hired to water a field, and the flow of water in the river from which the water was drawn stops and it is not possible to water the field. In this case, the ruling was that in principle the laborer is not entitled to demand his wages even though non-performance of the work was not dependent upon him but rather upon objective circumstances that prevented his employer from having the work carried out. An exception to this would be if the employer could have foreseen the frustrating event, and the laborer could not have foreseen it, such as when the owner of the field knows that the river tends to be dammed and to dry up, whereas the laborer is not from the town and is unaware of this fact. In such a situation, the employer would be required to inform the laborer of the possibility that the work may not be possible. In such a case, the law states that an employer who does not warn the worker would be in breach of contract, and he is required to pay the laborer his wages (subject to the laborer’s duty to mitigate his damage, i.e., to find an alternative place of work). According to this, if the employer is prevented, against his will, from giving the laborer work, such as when he has hired a private tutor for his son and the son has fallen ill, the readiness of the laborer to perform the work does not entitle him to payment of wages. Even if the frustrating event was foreseeable, the laborer should have stipulated with the employer that the employer would pay the laborer his wages in spite of the intervening event. 29 Only if the laborer was misled 24. Rama, Khoshen Mishpat, siman 109, sec. 3, by the name of“there are those who say.” 25. BeitYosef, Khoshen Mishpat, siman 109, sub-siman 3. 26. In this regard, see Michael Wygoda, JEWISH L AW , L EASING AND B ORROWING [Hebrew], pp. 279-357 (1998); Michael Wygoda, “On Frustration of Contracts,” P ARASHAT H ASHAVUA [Hebrew] no. 447 (5775-2015); Michael Wygoda, “Frustration of Contracts in the Wake of the Corona Pandemic,”P ARASHAT H ASHAVUA [Hebrew] no. 501 (5780- 2020), Ministry of Justice site, supra note 3. 27. Babylonian Talmud, Bava Mezi’a 77a-b, Soncino trans. 28. See supra note 26, Michael Wygoda, “Frustration of Contracts in the Wake of the Coronavirus Pandemic.” 29. See S EFER M EIRAT E INAYIM , Choshen Mishpat, siman 334, siman katan a. A similar ruling was made with respect to one who hired a tutor for his son and his son fell ill. See S HULCHAN A RUKH , Choshen Mishpat, siman 334, sec. d.