Daf Inspired – Culling Gems of Inspiration from the Daf


yehoshua-bermanBy Rabbi Yehoshua Berman

Kesubos 80 – Speak Up!

He has the skills. The husband himself is an experienced agriculturalist and would have no problem working the fields that his wife brought into their marriage (as nichsei melug) on his own. But, for whatever reason, he decided to hire others to do the work. In the meantime, he goes out to the fields and orchards every now and then to pick whatever he pleases, as is his right to do so.

What happens, though, if he divorces his wife before the sharecroppers ever got paid their share? After all, it wasn’t she – the true owner of these fields – who hired them, but her husband. As far as the husband is concerned, the Mishna is crystal clear: if he invested into the properties, she does not have to reimburse him at all, so long as he consumed some small portion of the produce or profits thereof. And he did.

The Gemara’s conclusion is that they have no claim on her. Had her husband not been the type of person who knows how to farm, then she would have had to pay them because land is meant to be worked, and she would have definitely had someone do the job. However, since her husband in fact could have done it himself – and if he would have she would’ve gotten away without paying him a thing now since he ate some the fruits of the fields in the interim – she gained nothing by having these hired hands do the job. So they have no claim on her. Zero.

Tosafos asks a kashya, though. Why doesn’t the husband have to pay them? There is an explicit Gemara in Bava Metzia, brings Tosafos, that says, “One who hired workers to do work in his property, and instead brought them to work in someone else’s property, must pay the workers in full.” So why, asks Tosafos, should this situation be any different? Why shouldn’t the husband have to pay them?!

The answer, explains Tosafos, is that the sharecroppers in this case are responsible for their own loss. They knew very well that the fields in which they were working actually belonged to the guy’s wife. They also know that if a man becomes inclined to divorce his wife, he is not going to refrain from doing so just to spare his sharecroppers a loss. Therefore, concludes Tosafos, the sharecroppers should have verbalized, when they agreed to work for the husband, that he must pay them no matter what happens. Since they didn’t do that, it is tantamount to them having agreed that, in the event the husband will lose out because of divorce, they will lose out along with him.

Not speaking up is not an excuse. Sure, who wants to say such a thing?! It’s so uncomfortable to say to a guy, “Listen, we want to be clear that even if you wind up divorcing her, you’ll still have to pay us.” They just figured in their minds that “better to keep quiet and not make a fuss, and for sure everything will work out just fine in the end.”

But it didn’t.

And they cannot come complaining now that it’s not fair. They should have spoken up, and they didn’t; and now they have no choice but to suffer the consequences.

This idea is echoed very strongly by a piece of very practical advice that the Chafetz Chaim bequeathed to Klal Yisrael. In Ahavas Chesed (Part 1, Chapter 10, Paragraph 13, footnote [with a star]) he writes as follows (the following is a paraphrased, free translation):

“Whenever you go to hire someone to do something for you, for whatever job it may be, make sure to agree on a price with him right from the outset, before he begins working. If one does not do this, one may very well wind up accidentally violating the laws of theft and illegal withholding of payment. Unless, that is, you are prepared to be extremely open-handed in order to get out of any shadow of a doubt. Generally, everyone has hundreds of things every year for which they need to hire others to do the work for them. It often happens that after the job is finished, an argument between the employer and the worker ensues regarding how much the payment should be. When they part ways, each one feels that he was cheated by the other, just that it is not worth it for him to fight over it. But he does not wholeheartedly forgive any debt that there may be. Sometimes, they do in fact wind up getting into a fight over it. Now, the halacha is clear that payment, in the absence of unambiguous prior stipulation, is determined according to the norms of the particular locale at any given time. If the employer pays the worker even one prutah less than this amount, he has violated the issur d’Oraysoh of theft and withholding payment. And who can possibly know what precisely the norm is for any given job at any given time?! That is why, if the employer wants to be certain that he will not take any chance at violating this issur, he will have no choice but to always pay the worker whatever he asks. And that is very difficult to do. Therefore, if you want to be certain that you are free and clear of any trace of wrongdoing, clearly stipulate with the worker how much you are going to pay him before he commences his labor. An additional benefit to adopting this as an ingrained habit is that you will get better prices from the people you hire, because the worker knows that so long as he has not yet begun, you could just go find someone else to do the job. He will be inclined to give you a good price so that you will hire him. In particular, a talmid chacham must be especially careful about this. Otherwise, in addition to the concern of violating the prohibition of theft, there is also likely to be a chillul Hashem if he does not pay the worker whatever he asks, because the latter will say, “The talmid chacham cheated me!”

Now, there are many types of jobs that it is practically unheard of to hire someone without first setting a price. But there are many cases where this is not the assumed practice. Take, for example, calling a plumber to “come quick, we’ve got a leak!” Very often, because of the relatively small nature of the job and the speed with which it must be taken care of, the parties involved can neglect to discuss the price until the job has already been done. Or what about getting into a cab? If the driver turns on the meter right away, no problem. But what if he doesn’t?

It seems that a lot of people are uncomfortable speaking up. In general, and in particular when it comes to issues dealing with money. But, as we see from this sugyah and the exhortation of the Chafetz Chaim, often that can be a recipe for no good.

Klal Yisrael is distinguished by three main characteristics, one of which is bayshanus, bashful reticence. Inherently, that is a wonderful middah; but, as the Orchos Tzaddikim writes in his introduction, middos are like the ingredients of a cuisine. You have to carefully calibrate precisely which particular ingredient, and how much of it, to use in any particular dish. So too is it with middos. Different situations call for employing different middos, at varying intensities.

Usually, when we really ought to be speaking up, we are internally aware of it; just that for one reason or another we feel bashful about it and hold back. We don’t want to “rock the boat”. Or perhaps we think that if we leave discussing it for later we’ll be able to come out better. What is critical to be aware of, though, is that speaking up is often not only okay, it is the morally correct thing to do. You ought to speak up!

I recall that a friend of mine was at my house once when a new gate was being brought in for the outer side of my kitchen doorway. This was the end of a major renovation on my house, and I made a point to instruct the workers that they should be careful to not scratch any of the cabinetry in the kitchen as they carried the gate there-through. My friend said to me, “I am impressed that you spoke up. If it would have been me, I probably would have just kept quiet.” What my friend didn’t realize is that such behavior did not (and does not) come naturally to me at all. I also essentially feel “why make a ruckus, just keep quiet and I’m sure everything will be just fine”. But I had the benefit of someone pointing out this piece of Chafetz Chaim to me some years ago, and I have tried to incorporate its message as a source of self-empowerment ever since.

By the way, take note that, in addition to his main exhortation about avoiding any possibility of gezel, the Chafetz Chaim included two significant, worldly benefits that one stands to gain from habituating himself to always clearly stipulating the price right from the start. Number one is that it obviates the possibility of getting into any unpleasant arguments, and number two is that it affords you the highest likelihood of getting the best price. There is also an implied, third benefit as well. Namely, that even in the event that you are big enough to avoid getting into a fight or nasty argument, chances are that you will still suffer angst over feeling that you were cheated.

Why does the Chafetz Chaim include all of this “enticement”? I think it is pretty clear that he wants to convey a sense of awareness that when you adopt the behaviors that are correct al pi Torah – even if those behaviors are not specifically mandated – you only stand to gain from it. Both in a ruchniyus manner and from a gashmiyus point of view as well.

So the next time you realize that you really ought to be speaking up, remember the lesson of today’s sugyah and the words of the Chafetz Chaim; and use that as a source of self-empowerment to realize that sometimes speaking up is not only okay, it is the right thing to do!

Rabbi Yehoshua Berman serves as the Rosh Kollel of Kollel Reshet HaDaf in Ramat Beit Shemesh, Israel. In addition to having authored Reflections on the Parsha, Rabbi Berman regularly delivers shiurim on Halacha and Hashkafa, writes comprehensive chazara questions (in Hebrew) for the advanced Daf Yomi learner, and weekly words of inspiration from the Parsha. Rabbi Berman can be contacted at rbsa613@gmail.com.

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