[Avodah] [Areivim] Dvar halacha in Choshen Mishpat

[Kayza Zajac]

On Sat, 2008-05-17 at 22:50 -0600, Michael Kopinsky wrote:
> (Carried over from Areivim.)
> 
> That just means that halacha obligates you to follow societal norms
> very strictly, even more strictly than societal norms will obligate.
> But it is the level of obligation that changes, not the requirement.
> Societal norm is to pay the babysitter when you drop her off; halacha
> obligates you to follow this norm, and means that you're over several
> lavim if you don't pay her then.  But halachic distinctions about poel
> yom, poel layla, shkiah, etc. are for the most part (not entirely, but
> mostly) irrelevant.
>  
I think you are conflating the halachik principle with specifics of
implementation. The Halachik principle is that one has to pay on time.
The implementation hinges on what does "on time" mean. Although the
halachik discussion are primarily about poel yom, poel layla and shkia,
it's not just about that.  Even then, there were workers who worked by
the week, month, or even year.  The concept applied there, too.  

Also, I suspect that the typical babysitter situation (I'm talking about
the issue of a baby sitter hired for the evening) is probably a peopl
layla situation.  In any case, I'd say that the obligation to pay the
babysitter when she is dropped of is not because that is the societal
norm, but because, in the absence of any other norm, you have an
obligation to pay by a certain time, and realistically speaking, the
only way to meet that deadline is to pay on the spot.

By the way, I think that poel yom is not as uncommon as one would think.
It's not just baby sitters.  It's skilled and unskilled workers who do
all sorts of jobs from shoveling the snow, to yard work, minor (and not
so minor) repairs etc.

In all of these cases the fundamental issue is the obligation to pay on
time, not the social norm.  The social norm is simply one of the factors
we take into account when figuring out what "on time" means.

Once that is clear, there are a number of issues that need to be
clarified.  Is it permissible for an employer to miss payroll?  What
lengths does an employer have to go to, to meet payroll / pay the worker
on time? Is it permissible to ask an employee (daily, or "salaried") to
allow a delay for the employer's convenience? When is consent
problematic?  

That last, by the way, is probably a good link to another whole set of
issue - ie what constitutes undue pressure.

A good example of what I am talking about is something I saw some time
ago in the Hamodia.  They had a nice series where people wrote in in
halachik questions, and a Rav would provide a response.  (I don't recall
if it was only Chosen Mishpat questions, but the ones I remember were.)

A woman writes that she had a babysitter come to her house to watch the
children while she and her husband went to a wedding.  They came home
late (apparently not calling the babysitter to alert her to the problem
they were having getting home).  They got in to find the babysitter
practically waiting at the door for them, as she needed to get home.  At
this point the woman discovered that she didn't have the correct change
to pay the girl, and was having a hard time finding money.  She asked
the babysitter if it would be ok to bring the money over the next day,
and the girl agreed.  The next day (or shortly thereafter) the husband
came home from a shiur and told his wife that he realized that she
REALLY should have paid the girl on the spot. The woman was writing to
know if she really had been over, as she had asked the girl who
consented.

This raises several questions.  Firstly, what was the obligation to
prepare appropriate change.  Secondly, what should that woman have done,
since she didn't have the change and the girl was already way behind?
And lastly, can the girl's consent really be considered consent?

The answer didn't really deal with the first question, and not at all
with the second one, but focused on the third question, as the main
point of the query was that it should have been ok since the girl
agreed.

By the way, although I don't think this is a source for you to prepare,
I think that a look at Aish's "Jewish Ethicist" column could give you
some sense of how much most of these halachols do not come down to
"follow social norms".

I can think of quite a few issues without even looking there.

How do we figure out what are social norms, and which ones are relevant
lehalahca (probably too general for what you are doing, though)

Ona'a / Gneivas Da'as (They often seem to go together)

Mekach To'us

Market rates - how we figure them out, and what our obligations are

Competition - fair and unfair

Hashovas Aveida (a relatively common scenario is when someone hides
something found for a while to "teach a lesson" to the person who
mislaid the article.)

Contract issues - how binding are verbal commitments, when can one party
withdraw, changing circumstances.  

Diverting a deal away from someone else to one-self.  eg someone is
close to closing on a house, and you make a higher offer, thus getting
the house.  Does the market rate make a difference here?

Employer / Employee issues.  This alone could probably go on for pages,
but just a few things that I've seen come up in practice (besides Ba'al
Talin...)
	Are "busy work" or jobs seriously out of the normal scope of the
employees duties acceptable?
	Can employers require (Jewish) employees to come to work on days that
the employer would find it unacceptable to come (eg Chol Hamo'ed)
	Use of workplace resources for personal use
	Employee monitoring
	What happens when an employee is doing something improper or not
completing work properly? What can, should, must another employee do?
How much risk should / must that other employee take.

-- Kayza