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The Tashbetz explains the first opinion cited in Tosafot in the following manner. Someone who acquires an eved ivri for a matter of years knows that during that time, the eved will miss some time due to illness. If he anyway makes no stipulation as to recovering that loss, he accepts the almost inevitability as his loss. In the same way, one who hires a worker for a long period of time can assume that the worker will miss time for illness, and if he does not stipulate, he has to pay in full. Based on this approach, the question from the gemara in Bava Metzia is not difficult. There it is talking about one who hires a worker for a matter of days. In such a case, he does not need to expect that specifically at that time, the worker will get sick, and his lack of stipulation does not infer acceptance of the obligation to pay for times when he did not work.
Even according to the Tashbetz, there is a gray area, when the employment period is longer than a few days but shorter than years. When would we say that the period is long enough to require the employer to stipulate or lose, and what is considered a short employment where he has to pay only for the time he worked? One can draw the line at a year, which is the cutoff point according to Israeli law. The Rosh (cited by the Rama, CM 333:5) has another compromise position, that an employer can take off for time missed, but if the worker returned to the job without the employer informing him that he would reduce his salary, he relinquished his rights to do so. The Shach (333:25) argues and says that silence on the matter is not deemed as relinquishing of rights.
P'ninat Mishpat (834)
Various Rabbis
47 - Workers Who Missed Work Due to Illness
48 - Workers Who Missed Work Due to Illness
49 - A Father’s Rights in His Children’s Monetary Assets
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P'ninat Mishpat P'ninat Mishpat: Sharing in Plumbing Expenses – part II
based on ruling 85013 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'NINAT MISHPAT: A Mess of Loans, Repayments and Grievances – part II
based on ruling 83033 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: Smoking Rights in a Rental? – part III
based on ruling 85076 of the Eretz Hemdah-Gazit Rabbinical Courts
Rabbis in Midrash
Lessons
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Moreshet Shaul Hashem Is your Shadow – part I
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 420 – an address from 1941
P'ninat Mishpat A Non-Contractor in Changing Times – part I
(based on ruling 85128 of the Eretz Hemdah-Gazit Rabbinical Courts)
Moreshet Shaul Our King on Rosh Hashana, Our Father on Yom Kippur.
Based on Aroch Siach, p. 221 (Rav Shaul Yisraeli)
P'ninat Mishpat A Non-Contractor in Changing Times – part II
(based on ruling 85128 of the Eretz Hemdah-Gazit Rabbinical Courts)
Moreshet Shaul Hashem Is your Shadow – part II
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 420 – an address from 1941
Parashat Hashavua Happiness for the Right Reasons
[With painful longing, we share these divrei Torah from our co-Rosh Kollel for close to 40 years, Harav Moshe Ehrenreich zt”l.]
