בבא מציעא 76

76:1

IF THE EMPLOYER RETRACTS, HE IS AT A DISADVANTAGE. HE WHO ALTERS [THE CONTRACT] IS AT A DISADVANTAGE, AND HE WHO RETRACTS IS AT A DISADVANTAGE. GEMARA. It is not stated, One or the other retracts. but THEY DECEIVE EACH OTHER, implying the artisans deceive each other: viz., the employer instructed him [sc. his employee]. 'Go and hire me workers;' whereupon he went and deceived them. How so? If the employer's instructions were at four [zuz per day], and he went and engaged them for three, what cause have they for resentment? They understood and agreed! Whilst if the employer's instructions were for three, and he went and engaged them at four, what then were the conditions? If he [who engaged them] said to them, 'I am responsible for your wages.' he must pay them out of his [pocket]. For it has been taught: If one engages an artisan to labour on his [work], but directs him to his neighbour's, he must pay him in full, and receive from the owner [of the work actually done] the value whereby he benefitted him! — It is necessary to teach this only if he said to them, 'The employer is responsible for your pay.' But let us see at what rate workers are engaged? — It is necessary [to teach this] only when some [workmen] engage themselves for four [zuz] and others for three. Hence they can say to him, 'Had you not told us that it is for four zuz, we would have taken the trouble to find employment at four.' Alternatively, this may refer to a householder. Hence he can say to him, 'Had you not promised me four, it would have been beneath my dignity to accept employment.' Or again, it may refer, after all, to [normal] employees. Yet they can say to him [the foreman], 'Since you told us it was for four, we took the trouble of doing the work particularly well.' But then let us examine the work? — This refers to a dyke. But even [in] a dyke, it [superior workmanship] may be distinguished! — It means that it is filled with water, and so not noticeable. Another possibility is this: In truth, it means that the employer gave instructions for four, and he went and engaged them for three; but as to your objection, 'They understood and accepted!' — they can remonstrate with him. 'Do you not believe in, Withhold not good from them to whom it is due?' It is obvious, if the employer instructed him [to engage labourers] for three [zuz per day], and he went and promised them four, but they stipulated, 'According to the employer's instructions', that their reliance was upon him [who engaged them], But what if the employer instructed him [to engage them] at four, and he went and promised them three, and they said, 'Be it as the employer instructed'? Did they rely on his [the agent's] words, saying to him, 'We believe you that the employer has instructed you thus'; or perhaps they relied upon the words of the employer? — Come and hear: [If a woman said to a man.] 'Bring me my divorce,' and [he went and stated to her husband,] 'Your wife authorised me to accept the divorce on her behalf;' [to which] he replied. 'Take it, in accordance with her instructions,' — R. Nahman said in the name of Rabbah b. Abbuhah in Rab's name: Even when the divorce reaches her hand, she is not divorced. This proves that he [the husband] relies upon his [the agent's] statement. For should you maintain that he relies upon hers, then at least when the divorce reaches her hand, let her be divorced! Said R. Ashi:

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76:2

How now! That were well, had the reverse been taught, thus: [If a woman said to a man,] 'Accept the divorce on my behalf;' and he [went and stated to her husband.] 'Your wife instructed me, Bring me my divorce,' [to which] he replied. 'Take it, in accordance with her instructions: and had R. Nahman ruled [thereon] in the name of Rabbah b. Abbuha in Rab's name that immediately the divorce comes into his [the agent's] hands, she is divorced; that would have proved that he [the husband] relied upon her word. Again had he ruled that [only] when the divorce reaches her hand, is she divorced; that would shew that he relied upon the agent's statement. But there [where R. Nahman did state his ruling], it is because the agent himself entirely cancelled his appointment, by declaring, 'I am willing to be an agent for acceptance, but not for delivery.' [Reverting to the Mishnah:] If you prefer I can say, this Tanna designates retracting too, 'deceiving'. For it has been taught: If one hires labourers and they deceive the employer, or the employer deceives them, they have nothing but resentment against each other [but no legal redress]. Now, this holds good only if they have not gone [to the scene of their labour]; but if ass-drivers [are engaged to convey a load of grain from a certain place and] go [there] and find no grain, or labourers [hired to plough a field] go and find the field a swamp [unfit for ploughing], he must pay them in full; yet travelling with a load is not the same as travelling empty-handed, nor is working the same as sitting idle. [Moreover,] this holds good only if they have not commenced work; but if they have commenced work, the portion done is assessed for them. E.g., if they contract to harvest [a field of] standing corn for two sela's and they harvest half, and leave half; or to weave a garment for two sela's, and they weave half and leave half, the portion done is assessed: if it is worth six denarii, he must pay them a sela' [Four denarii], or they can complete the work and receive two sela's; if it is worth a sela', he must pay them a sela'. R. Dosa said: That which still remains to be done is assessed. [Thus:] if it is worth six denarii, he pays them a shekel [two denarii], or they can complete their work and receive two sela's if a sela', he must pay them a sela'. Now, this holds good only if there is no irretrievable loss [if the work is postponed until fresh labourers are found]; but if there is, he can engage [workers] at their cost, or deceive them. How does he deceive them? He says to them, 'I have promised you a sela'; come and receive two.' To what extent may he engage [workers] against them? Even to forty or fifty zuz. But when is this said, [only] if no artisans are available for hiring; but if there are, and he [the first worker] says to him, 'Go out and engage one of these,' he has nothing but resentment against him. A tanna recited before Rab: He must pay them in full. Whereupon he [Rab] observed: My uncle [R. Hiyya] said, 'Were it I, I would have paid them only as unemployed labourers:' yet you say. 'he must pay them in full'! But surely, it is taught thereon: But travelling with a load is not the same as travelling empty-handed, nor is working the same as idling! — Now it [the Baraitha] had not been completed before him [Rab]. Others say, it had been completed before him, and he [Rab] observed thus: My uncle said, 'Were it I, I would not have paid him at all'; yet you say [he must pay him] as an unemployed labourer! But this [Baraitha] opposes it! — There is no difficulty: the latter ruling is if he viewed the field the previous evening; the former, if he did not. Just as Raba said: If one engaged labourers to cut dykes, and rain fell and rendered it [the land] waterlogged [making work impossible], if he inspected it the previous evening,

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