Mrs. Horowitz was known throughout her neighborhood for her culinary talents. Her home-baked challah was acclaimed by all who tasted it! Every week, on Thursday, Mrs. Horowitz would bake about 50 challos, which she sold to her friends as an additional source of income.
One Thursday afternoon, as Mrs. Horowitz prepared the last batch, her Bosch mixer stopped working.
“I’m glad it lasted the day!” Mrs. Horowitz exclaimed to her husband. “At least I have the challos for this week. I’ll have to have it fixed before next week.”
On Friday Mrs. Horowitz brought the mixer into the appliance repair store.
“How long will it take to fix?” Mrs. Horowitz inquired.
“Two to three days,” replied the repairman, “but, of course, we’re closed tomorrow and Sunday. I’ll check it today, and have it repaired by Wednesday.”
“That’s okay,” said Mrs. Horowitz, “but I must have it back on Thursday morning. I have orders for 50 challos to bake then!”
“I don’t see foresee a problem with that,” said the repairman.
On Wednesday afternoon, Mrs. Horowitz called the appliance repair store. “I brought my mixer in for repair last Friday,” she said. “Is it ready?”
“I’m sorry,” replied the repairman. “I checked the mixer on Friday, but forgot about it this week. Tomorrow I can’t work on it, but can have the mixer ready by Friday afternoon.”
“What?!” exclaimed Mrs. Horowitz. “Friday afternoon won’t do!”
“At this point, there’s nothing I can do,” replied the repairman. “I don’t have enough time today, and I have a doctor’s appointment tomorrow.”
“I’ll have to cancel the challah orders, then,” said Mrs. Horowitz. “That’s a few hundred dollars of loss for me! I think that should be deducted from the repair charge.”
“Ask your rav,” said the repairman.
Mrs. Horowitz called Rabbi Dayan, and asked:
“Is the appliance repairman liable for the lost revenue due to his negligent delay?”
“A person who was hired for a time-sensitive job, such as to bring flowers for a wedding, but arrived too late, is not entitled to his wages since the employer did not benefit at all,” replied Rabbi Dayan. “The time factor is an integral part of such an employment agreement” (see C.M. 333:5; Pischei Choshen, Sechirus 10:[5], 13:4[4]).
“In our case, though, the mixer needs to be fixed, regardless, for subsequent weeks. Even if we were to consider the contractual arrangement as void, Mrs. Horowitz would still have to pay the going rate for the repair, as anyone would whose property was in need of repair (C.M. and Kessef Kodashim 375:1).
“Nonetheless, the technician might be liable for this week’s loss of earning.
“The Yerushalmi (B.M. 5:3) teaches that a person who restrains another from earning profit – mevatel kiso shel chaveiro – is not liable for the lost profit since this is considered only as grama – indirect damage (Shach 292:15).
“However, many authorities maintain that an employee – whom the employer relied upon – is liable also for losses, or even irrecoverable lost profit, caused by his inaction.
“The Gemara (B.M. 73b) teaches that a person who was handed money to buy wine when prices were low but neglected to do so, would have been required to pay the lost profit were it completely in his hand to buy wine at that price. Nesivos (176:31, 183:1, 306:6), based on the Ritva, explains that this is due to the extra responsibility of an employee. However, others disagree and provide alternate explanations of this Gemara (Pischei Teshuva C.M. 328:1; Nachalas Zvi 292:7).
“On account of this dispute,” concluded Rabbi Dayan, “the repairman can refuse to repair or return the mixer unless paid fully. However, if he already returned it, Mrs. Horowitz can refuse to pay the full amount, and deduct her lost profit. It is proper to compromise.”
Verdict: There is a dispute as to whether an employee is liable for lost revenue due his negligence, so that the muchzak – one in possession – has the upper hand; it is proper to compromise.
