Responsum: On a Broken Contract

Reuben hired a tutor for his son, but the son subsequently fell ill.

It seems to me that since Reuben is a victim of circumstances beyond his control, he must pay the teacher for the delay due to illness. For we learned:

If one hired a laborer, and at midday the laborer heard that a relative of his had died, or he was gripped with fever, if he is a hired laborer, he must give him his wage; if he is a contractor, he must give him his payment. [b. Bava Meẓi‘a 77a–b]

This teaching is interpreted as referring to a situation where financial loss will ensue [i.e., when the work is not completed], and everyone agrees with the ruling. It can be inferred from the Gemara that even though [in ordinary circumstances] a hired laborer or contractor may not retract, in the event of an illness he may. This is the case even when the employer will suffer a loss because he cannot find other workers. For if he could find others for hire, then the laborer may retract even if he is not compelled to do so by circumstances beyond his control, as proven from the baraita cited earlier by the Gemara. Here too, when it is the hirer who fell ill, he is a victim of circumstances beyond his control and therefore may retract, or the hired laborer must complete his work when he recovers, even though the tutor will lose out if he cannot find other boys to teach in the meantime. [ . . . ]

It should be noted that this is the law only if the son is not generally a sickly child, and there was thus no reason for the father to think he should make a stipulation in case he [the son] became ill. This is as stated:

If a person hires laborers to draw water and it rains [and therefore he no longer needs the work], the laborers suffer the loss. [b. Bava Meẓi‘a 77a]

The reason is that they should have issued a stipulation [to cover such an eventuality], notwithstanding the fact that the employer also knows that it might always rain. It is clear from this discussion that in a situation where both are aware of the possible outcome, it is the responsibility of the employees to stipulate, not the employer. By contrast, if that possibility is known only to the employer, it is his responsibility to make the condition. [ . . . ] Accordingly, if the tutor knew that the hirer should have issued a stipulation, and the latter failed to do so, the tutor forfeits his wages throughout the period of the sickness.

Regarding such cases, I also maintain that if one hires out his services to teach boys for a year, he may retract at any point. This is the law of laborers, that they may retract at any time they choose, even halfway through the day. He does not have the status of a contractor, who does not have the right to retract, as the ruling of the law follows R. Dosa. This is because the title of a contractor applies only to a person who accepts [a task], for example, a job to reap produce, irrespective of how long it takes him, and he receives his wages when he completes the task.

If the boy died halfway through the year, in my opinion the tutor can claim his entire wages. For we learned:

In a case where one rents a boat, and it sinks midway through the journey, if the renter has already paid for the boat, he does not receive a refund, but if he has not yet paid, he does not have to pay. [b. Bava Meẓi‘a 79a]

The Gemara there proceeds to ask the following question: What are the precise circumstances of this case? If he hired an unspecified boat to transport a particular wine, this would explain why he does not get a refund if he already paid; the reason is that the owner of the boat can say, “Give me the wine, and I will bring a boat,” whereas the other cannot reply, “I will give you some other wine,” as he originally referred to a particular wine. However, why is he not obligated to pay, if he has not yet paid? After all, the owner can say to him, “Give me the wine, and I will bring a boat.”

Here too, when the father hired a tutor for his son, it is as though he said to him, “I am hiring you for this son,” and therefore if the son passes away, the tutor can say to the father, “Give me your son and I will teach him.” [But the father presumably cannot say, “I will give you some other son.”]

Notwithstanding the above, I am uncertain as to whether the father can instruct the tutor to teach another boy in his stead. If we compare this case to the one of the boat, where he specified “this wine,” then the father cannot reply in that manner. Alternatively, it can be argued that if there is another tutoring post available, and the other boy is as bright as the first one, what loss would the tutor suffer? If so, it is comparable to the following case stated by Rava:

In a situation where one hired laborers to perform a job, and the job was completed by midday, if he has another job that is similar to the first, he may assign it to them. [b. Bava Meẓi‘a 77a]

In my opinion, these two cases are dissimilar, as there he did not specify “for this labor,” whereas here he did do so. In any event, if the boy merely fell ill, the tutor cannot say, “Give me a boy, and I will teach him,” as such a claim is applicable only if the child died and left the land of the living.

Joel ben R. Isaac ha-Levi

Source: Responsum 1030.