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Beit Midrash Series P'ninat Mishpat

Chapter 68

Enforcing a Work Agreement

Various Rabbis28 TEVET 5769
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P'ninat Mishpat (597)
Various Rabbis
67 - Severance Pay for Not Working on Chol Hamoed
68 - Enforcing a Work Agreement
69 - Work Under a Questionable Agreement
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The defendant (=def), the director of a pre-school for an NPO (non-profit organization), discussed with the children’s parents, including the plaintiff (=pl), that the NPO had lost the rights to land for a new building. Pl offered to lobby for an extension, which he ended up doing successfully. He claims that def promised that if he succeeded, he would be appointed the project’s contractor. As proof, he provided a letter from def that refers to him as the contractor. Def explains that pl volunteered to help the school and requested a letter, which pl even dictated to her, to show his involvement to enable him to intercede on their behalf.

Ruling: There are three possible reasons to consider pl to have been hired by the NPO as the project’s contractor. 1) In regard to work agreements (as opposed to sales), an oral agreement along with the beginning of the work form a binding kinyan. One can claim that the efforts with the municipality are the beginning of his work. However, since it is common for one who is being considered for a project to be involved in preliminary discussions and planning for the project before he is hired, his actions do not constitute the beginning of work.
2) A document can serve as a kinyan regarding obligations to workers (Pitchei Teshuva, Choshen Mishpat 333:1). However here, def claims that the document was not written to bolster an oral agreement but to indicate to others that a relationship already exists. A shtar re’ayah (document of proof) does not create an obligation, so the letter does not change anything. Since def has a logical explanation for the letter’s existence, it does not prove that a kinyan existed.
3) If a public group obligates itself to something it cannot back out (Shulchan Aruch, CM 204:9). R. Akiva Eiger (to CM 333) says that this applies to matters of employment as well. The Netivot Hamishpat says this is true when we can interpret the obligation as a neder (oath). An NPO has a status of a public group and so their employment may not lend itself to backing out. However, the director of the pre-school does not have authority to decide for the NPO which contractor will perform the work needed. Furthermore, the document could not serve as a binding kinyan as long as basic matters of salary and conditions, which traditionally are included, were not addressed (see Shulchan Aruch, CM 209:2).
However, one who was asked to do a service is entitled to pay commensurate to the gain he provided even if pay was not discussed (Shulchan Aruch, CM 375:4). We do not presume without proof that the work was done for free (see Rama, CM 264:4). This is especially true here where def requested help and is not affected by the fact that pl’s s son is enrolled at the school. Therefore, pl should be paid according to the value of his involvement in obtaining the building extension.
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