the Week of Proper 28 / Ordinary 33
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Bible Encyclopedias
Hiring and Letting
The 1901 Jewish Encyclopedia
or Hiring is a transaction by which parties, for a compensation, contract for a definite period for (a) the use of property or (b) personal service.
- The Mishnah (B. M. 93a) distinguishes four kinds of bailees: (1) the gratuitous bailee or depositary;(2) the borrower; (3) the paid bailee; and (4) the hirer (see Bailments). The hirer has the same responsibility as the paid bailee; that is, he must make restitution for the object entrusted to him in case it is lost or stolen, or if it is injured through his negligence. He is free from responsibility if it is impossible to prevent the loss; for instance, if an animal in his care dies or receives an injury accidentally or is violently abducted by robbers. In all other respects hiring is subject to the same laws as selling (ib. 56b), both as regards the manner of acquiring possession of the object (see Alienation and Acquisition) and as regards deceit or overcharge (ib. 99a; Maimonides, "Yad," Sekirut, 2:8; ib. Mekirah, 13:17; Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 307, 2; 227, 35).
Movable Property.
The hirer may use the object only for the purpose for which it was hired; and if he employs it in any other way, he becomes responsible for all accidents. The Rabbis, however, distinguish between accidents that are due directly to this change from the original purpose and those that can be ascribed to other reasons. If one who hires an animal for the purpose of taking it up a hill leads it down into a valley, thereby allowing the animal to slip and become injured, the hirer is free; for this might have happened on the hill as well. But if it becomes overheated for want of pure air, the hirer has to make restitution; for this could not have occurred if he had taken the animal on the hill (B. M. 78a; "Yad," Sekirut, ). If it is stipulated that the animal is to be laden with a burden of a certain weight, or if there is an established custom as to the weight of a burden to be put upon an animal, and the hirer adds one-thirtieth or more thereto, he becomes responsible for all accidents. The hirer may not change from the original terms either in the weight or as regards the kind of burden put upon the animal (B. M. 80a; "Yad," ib.; Ḥoshen Mishpaṭ, 308, 5, 6; 311, 1). Whether the owner has to substitute another object for the use of the hirer in case an accident happens to the one originally hired, depends greatly on the conditions made in the contract ("Yad," c. 5:1-3). One who hires an object may not sublet it; for it is presumed that no one desires his property to be in hands other than those to whom he entrusts it (B. M. 29b). But if the hirer does let it to another, he assumes all responsibility; while all the profits derived from the transaction go to the owner of the object ("Yad," c. 1:4).
Houses.
The landlord who lets a house for a definite period, may not retract from his contract, even when he himself has no place of abode. During the period of the lease he may not evict his tenant, nor may he compel the latter to leave the house, even for a short period, in order to make necessary repairs. If the lease is indefinite, containing no provision as to time, the tenant may be ejected after thirty days' notice. In the winter, however, the tenant may not be ejected. The lessee is permitted to let the house to another tenant as long as the number of the members of the two families is the same ("Yad," c. 5:5). If the lease specifies a certain house, and this is destroyed, the landlord is not compelled to rebuild the house for the use of the tenant; but he must return to him whatever rent has been paid in advance for the unfulfilled portion of the contract. When, however, the lease specifies no particular house, and the landlord provides the lessee with a house which is later destroyed, the lessee may demand that the landlord provide him with another dwelling (B. M. 103a; "Yad," c. 6:7; Ḥoshen Mishpaṭ, 312, 17). If the landlord sells the house during the occupancy of the tenant, the buyer becomes obligated by the terms of the lease; and all the laws that applied to the first owner apply with equal force to the second. See EJECTMENT.
In some places there was a fixed time when all tenants changed their leases or moved from place to place. If, in such a place, the tenant continued to live in the house for a short period thereafter he might be compelled to pay the year's rental even if he removed before the expiration of the year (Ḥoshen Mishpaṭ, c. 14). The landlord was compelled to make all necessary repairs. The tenant had to bear all expenses incidental to the carrying out of a religious command, as the placing of the mezuzah on the door-post or the railing around the roof (Deuteronomy 22:8), or to the securing of greater convenience. In all these matters, however; the custom of the land helped to decide the matter (B. M. 101b; "Yad," c. 6:3; Ḥoshen Mishpaṭ, 314).
In Fields and Gardens.
With regard to the manner of paying the rental, the Rabbis recognize three kinds of hirers of fields or gardens: (1) one who hires a field at an annual rental payable in money; (2) one who stipulates to pay the rental in grains or fruit, the produce of the land ("ḥoker"); and (3) one who stipulates to pay as his rent a certain percentage of the produce ("meḳabbel"). The first two are subject to the same laws. They have to pay the stipulated sum, in money or in crops, whether the harvest is successful or not. The landlord, however, may not demand the full amount when the failure of the crops is general in the locality (B. M. 105b); "Yad," c. 8:5; Ḥoshen Mishpaṭ, 321, 322). But he whose rental is a certain percentage of the produce has to pay such percentage even when the calamity is universal. He may not cease from labor as long as the land produces two measures ("se'ah") more than the expense of cultivation; and if he leaves it fallow, the court estimates how much the land would have produced by careful management and collects that sum from the hirer (B. M. 104a; "Yad," c. 13; Ḥoshen Mishpaṭ, 328). While all authorities agree that the landlord must provide all the necessary implements for tilling and harvesting in the case when the rental is a share of the produce, there is a difference of opinion when it is a fixed amount payable in money or crops; some hold that in these cases the tenant has no such claim upon the landlord after he obtains the land (B. M. 103b; "Yad," c. 2; Ḥoshen Mishpaṭ 320, 3; comp. Isserles' gloss). Local custom was of importance also in regulating the kind of seed to be sown, and the manner of sowing and harvesting, as also the mode of payment when this was not specified.
- The Bible makes no provision in regard to the regulation of labor, except by commanding that thewages of the day-laborer be paid promptly (Deuteronomy 24:14,15; see Wages). In the Talmud, however, there are extended discussions concerning the rights both of the laborer and of the master. Two kinds of laborers are recognized by the Rabbis: (1) the day-laborer (
), and (2) the piece-worker (
).
The Day-Laborer.
- The day-laborer may cease from his work in the middle of the day (B. Ḳ. 116; B. M. 10a, 77a). This law is based upon the principle that the working man is to be considered with great favor and leniency by the law. If the laborer's hire is a fixed sum per day, and he ceases from work in the middle of the day, he receives half the sum for his half-day's work, even though the master may have to pay more to another man to complete the work. If the master obtains a laborer for the rest of the day for less than half the sum, the original laborer is entitled to the difference. The Rabbis base this liberal principle upon the Scriptural passage (Leviticus 25:55), "For unto me, the children of Israel are servants"—but they are not servants of servants (B. Ḳ. 116a). In accordance with this principle, it is provided that no Israelite shall hire himself out for a period longer than three years, even in the capacity of a teacher or a scribe (Ḥoshen Mishpaṭ, 333, 3, Isserles' gloss; comp. Deuteronomy 15:18; Isaiah 16:14).
Overtime.
When, however, the work, if not finished betimes, would be spoiled (
), the laborer may not cease work, except when he is prevented by some accident from continuing. If he does cease, the master may hire other workmen to finish the work and charge all the expense to the original laborer (B. M. 77a; "Yad," c. ,; Ḥoshen Mishpaṭ, 333). The hours of the day-laborer, as well as the amount of food to be given to him during work, depend on local custom. The master may not compel the workman to work overtime if the custom is to cease labor at a certain hour, even though he be willing to pay for the extra time. If he specifies in his contract that he hires the laborer according to the laws of the Torah, the laborer must work from sunrise to sunset, except on Friday, when he is permitted to go home earlier in order to prepare himself for the Sabbath (B. M. 83a; Ḥoshen Mishpaṭ, 331, Isserles' gloss). If the laborer finishes the work given to him in less than a day, the master may give him some other occupation equally difficult with, but not more difficult than, the first to engage him for the rest of the day. In case the master has no other occupation for him, the laborer is entitled only to the payment of a laborer who is not at work, that is to say, the minimum amount which is paid for labor. If the laborer is hired for the purpose of fetching a certain object and he does not find it, he may claim the full amount of his wages (B. M. 77a; "Yad," c. 9:7,8; Ḥoshen Mishpaṭ, 335). If the laborer is hired for a number of days in succession, he is not permitted to work at night; for by so doing he might become less fit for the next day's labor. In general, the laborer is warned to perform his work faithfully, and not to waste the time that belongs to his master. Then he will be blessed, even as Jacob was blessed with great wealth because he worked faithfully for Laban (Genesis 30:43; Tosef., B. M. 8:2; "Yad," c. 13:6,7; Ḥoshen Mishpaṭ, 337, 19, 20).
The Piece-Worker.
- The piece-worker is not as much favored by the Law as the day-laborer, and if he retracts from his contract he has to suffer the loss. If he undertakes to finish a piece of work for a certain sum, and after he has completed one-half of it he retracts, he is not entitled to half that sum, the value of the work done, but the court estimates how much it will cost to finish the work, and this amount is subtracted from the original sum, and the remainder is given to him. In case the work is spoiled through not being finished the same day, the piece-worker is subjected to the same laws as the day-laborer (B. M. 76b; "Yad," c. 9:4; Ḥoshen Mishpaṭ, 333, 4, 5).The merchant workman (
) who undertakes to do the work at his own home is in some respects regarded as a bailee and in others as a seller. If the material is given to him, and he has merely to prepare it or to put it into a certain shape, most authorities agree that he is to be regarded as the paid bailee (see Bailments). If he finishes the work and the master is notified to come and claim it, from that time he is regarded as a gratuitous bailee, and is not responsible for any accident that may happen to the object, except when caused by wilful neglect. If he has to provide the material also, he is in all respects regarded as a seller; and the master assumes no responsibility for the object until it is delivered to him. If the material is supplied by the master, but the workman adds something to it, the latter is regarded as a paid bailee for the material given to him, but not for the addition made by him (B. Ḳ. 99a; B. M. 80b; "Yad," c. 3, 4; Ḥoshen Mishpaṭ, 306).For further particulars regarding the relations of master and laborer see Fee; Master and Servant; Wages.
- Moses Bloch, Der Vertrag, Budapest, 1893;
- Farbstein, Das Recht der Unfreien und der Freien Arbeiter, Frankfort-on-the-Main, 1896;
- Mielziner, Legal Maxims, Cincinnati, 1898.
These files are public domain.
Singer, Isidore, Ph.D, Projector and Managing Editor. Entry for 'Hiring and Letting'. 1901 The Jewish Encyclopedia. https://www.studylight.org/encyclopedias/eng/tje/h/hiring-and-letting.html. 1901.
