Two days before his son’s wedding, Mr. Simcha called the photographer, Mr. Schott, to finalize details.
“We’ll be starting the chuppah on Wednesday at 7 p.m. sharp,” Mr. Simcha said. “Can you arrive by 5 for family pictures?”
There was a brief silence on the line. “Five… on Wednesday?” Mr. Schott asked hesitantly.
“Yes, of course!” replied Mr. Simcha, surprised.
Another pause followed. “Mr. Simcha, I’m terribly sorry. I just realized that I made a mistake in my calendar,” Mr. Schott sighed. “I listed your event for Thursday night. I’m already booked on Wednesday. I finalized everything with the other family!”
Mr. Simcha felt his heart sink. “But we confirmed two months ago!” he exclaimed.
“I know,” Mr. Schott said apologetically. “It was an honest mistake but I feel awful. I don’t want to leave you stranded – I’ll try to find you someone else.”
In a flurry of phone calls, Mr. Schott contacted colleagues, checked availability, and eventually located another photographer who could step in on short notice.
“There is someone excellent,” Mr. Schott reported, “but he charges 20 percent more.”
“I guess I have no choice,” Mr. Simcha agreed.
The wedding was beautiful, baruch Hashem, and the pictures came out nicely. Still, when the dust settled, the added expense lingered in Mr. Simcha’s mind.
A few days later, he approached Mr. Schott. “I appreciate that you found a replacement,” he said, “but it cost me significantly more. I feel you should compensate me.”
“I regret the mix-up,” Mr. Schott replied, “but it wasn’t intentional. I didn’t cancel to take another job – it was simply an error.”
Neither wished to argue, but both wanted to know what halacha required. They turned together to Rabbi Dayan and asked:
“Does Mr. Schott owe compensation for the price difference?”
“The Mishna (B.M. 75b) teaches that a worker may not retract or quit in a case of davar ha’aveid,” replied Rabbi Dayan. “This includes work in which the time element is critical, even if it does not involve actual financial loss to the employer, such as someone hired to bring musical instruments for a wedding (C.M. 333:5).
“Furthermore, if the worker retracted despite this, and there aren’t alternate workers available at a comparable salary, the employer can hire someone more expensive at the worker’s expense or trick the worker to continue by promising him additional payment that the employer does not intend to pay (B.M. 76b).
The poskim discuss the extent of the right to hire other workers at the employee’s expense. If the employee worked partially, the employer can deduct the difference from what he owes the employee. Moreover, if the employer holds assets belonging to the worker, such as if the latter left his tools at the employer’s house or place of business, the employer can collect the difference from these assets, even beyond the wages due (B.M. 78a; C.M. 335:6).
If there are no wages due and the employer does not hold assets of the employee, Rashi states that the employee is not liable for the difference out of pocket, since it is only grama. (Grama sometimes carries a moral obligation, though.) Rosh, however, and the simple reading of Rambam and Shulchan Aruch, indicate that the employer can collect out of pocket from the employee up to the value of his stipulated wages (Sma 335:25; Shach 335:32).
In the case of multiple commitments, the primary obligation of the worker is to the first client to whom he committed in a binding manner. Either way, in such a case, he is now retracting vis-à-vis the other client.
Nonetheless, if the worker retracted due to uncontrollable circumstances (oness), such as if he or his child became sick or an immediate relative passed away, he is not liable (B.M. 77a; Nedarim 27a; Pischei Choshen, Sechirus 11:18[43-44]).
However, circumstances brought about by the worker’s negligence, even if an honest mistake, presumably are not oness, and he would be considered as retracting of his own accord.
“Thus,” concluded Rabbi Dayan, “Mr. Schott is considered as having retracted in a case of davar ha’aveid. He is liable for the difference in the cost of the alternate photographer, according to some poskim even out of pocket in this case.”
Verdict: A worker may not retract in a case of davar ha’aveid, where the time element is critical. If the worker nonetheless retracted and there aren’t alternate workers available at a comparable salary, the employer can hire more expensive workers at the worker’s expense.