SALT - Friday, 5 Iyar 5778 - April 20, 2018

  • Rav David Silverberg
            Yesterday, we noted the ruling of the Chafetz Chayim in his work Ahavat Chesed (9:7) regarding the extent of an employer’s obligation to obtain the money needed to pay his worker on time.  As we saw, the Chafetz Chayim cited the ruling of the Ritva (Bava Metzia 111b) that if the worker does not have cash available, but has merchandise which he can sell, he must try to sell the merchandise in order to access money to pay his employees.  The Chafetz Chayim applied this ruling to require the employer to claim any debts owed to him if necessary to obtain the money needed to pay his workers on time.
            Extending this provision even further, the Chafetz Chayim posits that if the employer is able to access money by taking a loan (without interest), then he is required to do so.  In his Netiv Ha-chesed (21), the Chafetz Chayim points to two different factors that lead to this conclusion.  First, he notes the general concept that one should endeavor to place himself in situations that enable him to fulfill a mitzva.  The Chafetz Chayim cites the Gemara’s famous comment in Masekhet Menachot (41a) that although one is not required to fulfill the mitzva of tzitzit unless he wears a four-cornered garment, it is proper to specifically wear a four-cornered garment in order to place himself in a situation which obligates him in this mitzva.  By the same token, the Chafetz Chayim writes, although the obligation to pay workers on time applies only if one has money available, one who can easily borrow money in order to have money available with which to fulfill this mitzva should do so.
            The Chafetz Chayim then proceeds to propose the possibility that this would be required even on the level of strict halakhic obligation.  Rashi, commenting to the command in Parashat Kedoshim (19:13) requiring paying a worker by morning, explains (based on the Gemara, Bava Metzia 112) that this refers to a day laborer, who finishes work at sundown.  Rather than demand that the employer pay the wages immediately at sunset, Rashi writes, the Torah allows the employer the entire night “to seek money” (“le-vakeish ma’ot”).  Seemingly, the Chafetz Chayim suggests, this means that the employer is required to try to access cash through any easily available means, including a loan.  Likewise, the Sefer Ha-chinukh (588) writes that the obligation to pay a worker on time applies if the employer “has in his home or is able to pay him.”  This formulation suggests that the obligation applies if the employer has any possible means of obtaining money, including taking a loan.
            One might, however, question this theory on the basis of the Torah’s formulation in presenting this command.  The Torah forbids withholding a worker’s wages “itekha” (‘with you”), a formulation from which the Gemara (Bava Metzia 111b) infers that the prohibition applies only if the employer has money which he does not immediately give to the worker.  Seemingly, if the employer does not have cash or merchandise to sell, and is not owed any money, he cannot be said to have anything that he is withholding instead of giving to his worker, even if he is able to take a loan.  Therefore, while we readily understand the value of borrowing money in order to facilitate the fulfillment of this mitzva, it seems difficult to claim that this is strictly required by force of the command to pay workers on time.
            Indeed, other sources state that borrowing money to pay a worker constitutes a “midat chasidut” – a measure of special piety, as opposed to a strict obligation.  This is mentioned by Rav Schneur Zalman of Liadi in Shulchan Arukh Ha-rav (She’eila U-sekhirut, 18), citing the Arizal, and by the Kitzur Shulchan Arukh (188:4).  (It should be noted, however, that the Kitzur Shulchan Arukh appears to be speaking specifically of a case of a needy employee, who relies on these wages for his basic necessities.)
            Some later authorities added that this “midat chasidut” applies only if the employer is confident in his ability to repay the loan.  The Mishna in Pirkei Avot (2:9) cites Rabbi Shimon’s comment that failing to repay a loan is considered evil, based on the verse in Tehillim (37:21), “Loveh rasha ve-lo yeshaleim” – “A wicked person borrows and does not repay.”  Therefore, if the employer fears he will be unable to repay a loan, he should not borrow money to pay his worker, in order not to risk committing the sin of failing to repay a loan.  It is far preferable to refrain from this “midat chasidut” than to run the risk of committing the sin of borrowing without repaying.  (This point was made by Rav David Gutfarb, in his Torat Chesed commentary to the Chafetz Chayim’s Ahavat Chesed.)