JUSTICE - No. 65

27 Fall 2020 by the employer in that the latter did not caution him regarding the possibility of which the laborer was unaware, will the laborer be entitled to his wages. A different conclusion appears to be reached in another Talmudic discussion (Bava Mezi’a 79a) dealing with frustration of a contract for maritime shipping services. “If one charters a ship and it sinks in mid-journey, Rabbi Nathan said: If he has [already] paid [wages to the laborer whom he had hired to bring the merchandise to him], he cannot take [it back]; but if not, he need not pay it now.” 30 Before us is a case of frustration on the part of the employer [the owner of the merchandise], who cannot provide the agreed-upon work to the laborer, because his specific wine has sunk in the sea, while the laborer is ready and willing to wait until another ship arrives with merchandise and to fulfill the agreement. Many of the early commentators suggest that because the laborer is ready and willing to fulfill his part of the agreement, he is in principle entitled to his full wages. In this regard, it is worth asking how this discussion can be reconciled with the case of laborers hired to work in a field, where we saw that in principle, frustration of the employer exempts him from his obligation vis à vis the laborer? A solution proposed by the Riban, Rabbi Yehuda ben Natan (one of the Ba’alei Hatosfot, France, 12 th century) and in his wake, the Maharam of Rottenberg, is that the two cases differ with respect to the laborer’s understanding of the situation. In their opinion, frustration of the employer in and of itself is not grounds for exempting him from paying a laborer who is ready and willing to perform his part of the agreement. In this case, the laborer is viewed as one who has carried out his part and is entitled to wages from the employer. However, since the laborer did not actually perform the work due to force majeure affecting the employer, he is considered to have been prepared to waive his wages, except in a situation in which the circumstances demonstrate that this was not the case. Going back to Bava Mezi’a, in the case of the laborer who was hired to work in the field, no loss was caused to the laborer other than non-receipt of his wages. Therefore, he is considered to be willing to waive his wages, if his employer is prevented due to circumstances beyond his control from providing him with work. If he did not intend to waive his wages, the laborer would have had to agree with the owner of the field that he would pay him his wages in any event. Frustration of a Contract to Lease Property and “A Disaster in the Country” The Mishna (Bava Mezi’a 9, 6), and in its wake the Talmud, deal with a case of a natural disaster or drought that caused frustration of an agreement to rent property. In this case, if a general state of disaster was the cause – a phenomenon that caused general damage and not just damage to a specific individual – the period of time during which the tenant was unable to make use of the leased property must be deducted from the rent. The Maharam of Rottenberg extended the exemption regarding a state of disaster to a case of hiring laborers. A teacher was forced to stop teaching his student because of a law that prohibited the teaching of Torah. In this case, the Maharam of Rottenberg held that the agreement had been frustrated and the child’s father was required to pay the teacher his wages. Rabbi Meir ben Yitzchak Katzenellenbogen, the Rabbi of Padua, Italy, cited this decision in a responsa in the 16 th century. 31 The Maharam of Padua was asked“regarding a teacher whose student fled from his city during… [an] epidemic … in Venice… is the student’s [parent] required to pay his full wages or [can he] deduct the days when he was not teaching?” Rabbi Katzenellenbogen held that the student who fled due to the terror of the epidemic is considered to have been coerced, and therefore, the teacher is not entitled to his wages. However, he emphasized that had an event that could be classified as a state of disaster been at issue, such as that all of the students in the city fled, then he would have ruled like the Maharam of Rottenberg in favor of the teacher. As an aside, the Maharam of Padua explained why the circumstances of the case before him did not rise to the level of a state of disaster: I am not of the opinion that it is appropriate to call the instant case a state of disaster. Did all of the residents of Venice flee and leave their studies? It was only a small minority who fled! … and a state of disaster is only where it is the same for everyone, such as a state decrees that the students shall not study, and all are idle. 32 30. Bava Mezi’a 79a, Soncino trans. 31. Responsa of the Maharam of Padua, siman 86. See also Shach, Choshen Mishpat, siman 321, siman katan 1; Taz, Choshen Mishpat, siman 321, siman katan 1. 32. Despite the fact that most of the residents of the city did not flee, the Maharam rejects the argument that there was no coercion in this case, while taking into consideration (similarly to the principle of the “fragile skull”in torts law) residents whose threshold of sensitivity