SALT - Yom Ha-Atzama'ut - Thursday, 4 Iyar 5778 - April 19, 2018

  • Rav David Silverberg
            The Torah in Parashat Kedoshim (19:13) issues the prohibition of “lo talin pe’ulat sakhir itekha,” which forbids withholding the wages of an employee.  The verse here forbids withholding wages “until morning,” and the Gemara in Masekhet Bava Metzia (110b) explains that this refers to a day worker, who finishes work at sundown, and whose employer is given until morning to pay the worker.
            The Torah formulates the command as a prohibition against keeping the wages “with you” (“itekha”), indicating that it speaks of a case where the money for the wages is available, but the employer decides to keep it for himself rather than immediately give it to his worker.  On this basis, the Gemara (Bava Metzia 111b) rules that one transgresses this prohibition only if he has the means of paying his worker, but chooses not to.  If, however, the employer does not have the cash available, he does not violate the prohibition of “lo talin” by waiting until he obtains the money he needs.  This provision is codified in the Tur and Shulchan Arukh (C.M. 339:10). 
            Rabbi Akiva Eiger, in his notes to the Shulchan Arukh, notes a subtle discrepancy between the Tur’s formulation of this law and that which appears in the Gemara.  The Tur writes that the employer is permitted to delay payment if “he does not have money,” indicating that this is allowed even if the employer has a way to access cash.  For example, if he owns possessions which he does not need and can sell to obtain cash, he is not required to do so.  However, Rabbi Akiva Eiger notes, the Gemara’s formulation is that one may delay payment “im ein lo” – “if he does not have,” suggesting that this provision applies only if the employer has neither money nor the ability to access money.  Indeed, the Sefer Ha-chinukh (588) writes that delaying payment is permitted “im ein lo kelum” – “if he has nothing,” clearly implying that this halakha does not apply if the employer has possessions he could sell to obtain fluid cash.  This view is stated explicitly by the Ritva, in his commentary to Masekhet Bava Metzia, where he writes that if the employer has merchandise to sell, he must make an effort to sell it in order to obtain the money needed to pay his worker.  Importantly, though, the Ritva emphasizes that the employer is required to sell only property which is intended for sale, and not his personal property which he uses.
            This stringent view is the position accepted by the Chafetz Chayim, in his work Ahavat Chesed (9:7).  Citing the ruling of the Ritva, the Chafetz Chayim asserts that this applies as well if the employer is owed money.  If, for example, the employer had at some earlier point granted somebody a loan, and the time for payment has arrived, then, in the view of the Chafetz Chayim, the employer is required to claim his debt if he needs the money to pay his worker.  He may not delay paying his employee if he has the ability to immediately claim a debt.  (This ruling of the Chafetz Chayim may have far-reaching implications in cases of businesses who are owed money from their clients, and need that money to pay their employees, or schools who are owed tuition payments and need those funds to pay salaries.  It would seem, according to the Chafetz Chayim, that the business or school in such a case bears a halakhic obligation to do what it can to obtain the money owed if it will otherwise be unable to pay its employees on time.  Of course, this topic lies beyond the scope of our discussion.)
            Interestingly, in his Netiv Ha-chesed notes to Ahavat Chesed (21), the Chafetz Chayim laments the fact that many people who hire workers for small jobs do not pay them immediately for their services because they do not have any small change.  The Chafetz Chayim asserts that one is obligated to break a large bill if this is necessary to promptly pay one’s worker, even if this entails a small financial loss.  Hence, since the prohibition against withholding wages applies even to very small amounts, one would be required to break a large bill to obtain the small change needed to pay a worker for a small job.