The Price to Pay

However, Tosfos are left to explain why an eved Ivri is treated financially better than a day laborer or rebbe. Tosfos posit that when one buys an eved Ivri, he has actually acquired a lien on the individual. He received value for his funds. The fact that he was unable to benefit from his lien is of no consequence. It is similar to someone who leased a car for three years. What would happen if all the roads were declared off-limits for three years? Could the lessor demand a refund? Certainly not. He received the car that he leased; he has no claim on the leasing company. Likewise, the purchaser of an eved Ivri received his six-year lien. If the eved Ivri was sick for two years, the purchaser still received value. However, standard employers, such as a yeshiva, do not acquire a lien on their employees. They only receive value when the laborer performs his job. Consequently, if the worker did not fulfill his duties, even through no fault of his own, he should not be paid. The boss did not receive value for the wages he is supposed to pay.

Interestingly, the Shach (CM 333:25) quotes the Maharam Mi’Rottenberg who stated that a different explanation of the distinction between the eved Ivri and the day laborer was revealed to him in a dream. According to the Maharam, the eved Ivri and the day laborer have essentially the same halachos in this matter. However, the eved Ivri is prepaid for his six years of work. Therefore, if he falls ill for two years, the boss absorbs the loss. The day laborer is postpaid. Therefore, the worker himself absorbs the loss. The rule is that whoever is holding the funds gets to keep them in the event of the worker’s illness. According to this distinction, if a teacher was pre-paid a year’s salary (good luck with that!) and then fell ill for two months, the school would have to absorb the loss. However, teachers that are given weekly paychecks would themselves absorb the loss in the case of sickness. According to Tosfos, a teacher always suffers a financial loss for missing time due to illness, whereas according to the Maharam, this would only be true if the teacher was not paid in advance.

The Shach was not impressed with the ruling of the Maharam, especially since it was based on a dream. He said dreams are of little halachic value. Further, he reasons that the determination of who absorbs the loss should not be contingent on who is holding the money. It is true that in cases where there is a halachic doubt or question of fact, we often resolve the dispute by letting the money stay where it is (ha’motzi me’chaveiro alav ha’ra’ayah). However, the Gemara never said that there was any halachic doubt involved in this case. Therefore, the resolution of Tosfos is preferred, because it’s based on the explanation that an eved Ivri is categorically different from a teacher or day laborer.

In practice, this discussion is usually not relevant, as most institutions and employers have firm rules in place for sick days. Employees are hired with the understanding that their employment is on the employer’s usual terms. Therefore, notwithstanding the above opinions, the rules of the employer should be followed. Even if the employer has no specific rules, questions of this nature would follow the custom of the locale.

Is there any real chance of an employee getting paid for two years of sick time? Based on the Maharam, we can say: dream on!