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Beit Midrash Series P'ninat Mishpat

part II

Chapter 42

The Obligation of Temporary Employment Agency

Various RabbisTammuz 5768
885
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[We continue to investigate the halachic outlook on the law regarding the rights of one who does work for a would-be employer (mazmin) under a contract with an employment agency. To what extent is the mazmin the employer of the worker, and as a result, to what extent is the law that obligates him to provide workers’ rights to the worker in line with halacha?]
P'ninat Mishpat (576)
Various Rabbis
41 - The Obligation Worker From a Temporary Employment Agency
42 - The Obligation of Temporary Employment Agency
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The gemara (Bava Metzia 118a) discusses when one can tell a worker that he asked to do work that he should receive the object he worked on in lieu of a salary. The gemara concludes that when Reuven tells Shimon to work in Levi’s field he must actually pay him, whereas if he told Shimon to work in an abandoned field he can tell him to take what he worked on as payment. Rashi (ad loc.) explains that when Shimon works in an abandoned field and can take the produce for himself, Reuven is not responsible for his pay.
The Rashba asks why it is that when Shimon does what Reuven asked, he isn’t considered his worker whether he works on someone else’s field or no one’s. He explains that Reuven’s obligation when he works on Levi’s field is based on the concept of arev (a cosigner). The gemara (Kiddushin 7a) says that when one wants to give a woman money as kiddushin and she tells him to give the money to someone else to effectuate the marriage, the kiddushin works, just as a cosigner becomes obligated to pay back a loan that was given to someone other than himself. So too, when Levi got the benefit from Shimon’s work based on Reuven’s request, it is as if Reuven was getting the benefit. On the other hand, if it was done on an abandoned field, it is like one who says throw money into the sea and I will pay you. In that case, there is a machloket among the Rishonim if the halacha of arev applies. The Rashba apparently posits that it does not.
What seems to follow from the Rashba is that in a case where a middleman tells a worker to work for a mazmin, the mazmin is the employer even though the middleman promised to pay him. The Mateh Levi (Bava Metzia 28:16) explains that if there is a "cosigner" (the middleman), there must be a borrower (the mazmin). In this case, the mazmin would be considered the employer, and the agency would have to pay because of arvut. However, it is not clear from the Rishonim in Kiddushin that every cosigner requires the existence of a borrower. Therefore, it is not certain that the mazmin is necessarily obligated in the worker’s pay or in the other rights that emanate from the ostensible work relationship.
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