For Lack Of Funds
‘Merchants In Sura Are Not In [Biblical] Violation …’
(Bava Metzia 111a)
The Torah warns us regarding an employee’s wages. First, we find in Parashas Kedoshim (Vayikra 19:13), “Lo salin pe’ulas sachir itach…” – the wages of a worker shall not remain with you overnight – and again in Parashas Ki Teitzei (Devarim 24:15), “Beyomo titein secharo v’lo savo hashemesh alav…” – on that day shall you pay his wages, the sun shall not set upon him…”
The Gemara (supra 100b) derives from these verses that a per diem worker who labors by day is to be paid before the rise of the following morning’s sun, and a per diem worker who labors at night is to be paid before the following day’s sunset.
If the employer fails to do so, he or she is in violation of “lo salin” – lit. keeping an employee’s wages “overnight” – i.e., longer than necessary.
Exceptions To The Rule
Our daf cites Rabba b. Rav Huna who cites an exception to this rule: those in the employ of the merchants in Sura who are usually short of cash. It is understood that they depend on the market-day shoppers for their cash. There is an assumed understanding that only when the merchant has sufficient cash will he pay his employees. This can be considered as one of the terms of employment.
Rashi (s.v. ad loc. “meida yad’i de’al yoma d’shuka samchi”) explains further that even in the event that the merchants fail to pay the wages after the market day has passed, they are not in violation of “lo salin,” because that violation only occurs on the (immediate) first day of the conclusion of labor. And since there is an agreement to let that day pass without payment, there is no longer any violation on the employer’s part.
Payment On Demand
From the Mishna (supra 100b) we see that the violation of lo salin is only when the employee came to collect his wages and the employer spurned his request. Therefore, according to Rashi, if the employee did not demand his wages on the day he finished working, the employer is no longer in violation of lo salin.
Meiri (ad loc.) is of the opposite view in that he maintains that the violation of lo salin comes about on the day when the worker’s wages are due or if the employee does not request payment until a later time (or where it was agreed upon that there would be a later pay date such as the case of the merchants in Sura).
Then, at the time that there is a demand for payment, and the payment is denied – though it is many days after the work was completed – then the employer is in violation of lo salin.
A Case Of Two Workers
The Chafetz Chaim (Ahavas Chesed, Dinei Tashlumei Sechar Sachir B’zmano – chap. 10:11) considers a case of an employer who hired an individual to do work for him on Sunday. He then hired another person to do work for him on Monday.
Came Monday, he only had enough funds to pay one of the two. Which one does he pay?
Interestingly, the Chafetz Chaim ruled, in accord with Rashi’s view, that the second worker has priority, since that is the day that his wages are due. The employer, by not paying him, violates lo salin. However, as regards the first worker, where the wages were not paid in the timely manner, since he did not have the funds to pay him then, on the next day he is no longer in violation of lo salin.
