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The Jewish Ethicist - Short Notice Cancellation

May 9, 2009 | by Rabbi Dr. Asher Meir, Business Ethics Center of Jerusalem

They cancelled a few hours before the party. Am I entitled to reparations?

Q. I'm a photographer. Recently someone cancelled on me only a few hours before a party, telling me that he hired someone else instead. Am I entitled to reparations?

A. When someone hires a worker, the expectation on both sides is that the work will be performed as agreed and paid for as agreed. But life is full of surprises, and things sometimes don't work out that way. Then the sides are stuck trying to figure out a fair arrangement in the new and unexpected reality. The principles of fairness in this situation are so important in Jewish law that an entire chapter of the Talmud is devoted to them.

The guiding principle is set out in the mishnah at the beginning of the chapter: "Anyone who deviates [from the original agreement] has the lower hand, and anyone who reneges has the lower hand." (1) Having the lower hand means that they are responsible for ensuring that the other side is no worse off than if the change or renege never took place.

There are two conditions needed for reparations to be due. One is that there is an actual loss. The Talmud states: "One who hires workers and they misled the employer, or the employer misled them [by reneging], they have [no claim but] only resentment. When does this apply? When they didn't go. But if they went . . . he must give them their full salary." (2)

The commentators explain that "if they went" is only an example. Typically once the workers go to the site they can't find work for that day, but if the job is cancelled before they go, they can. The general principle is that whenever enough notice is given for the workman to find alternative work there is no loss and no claim. Likewise if he wouldn't have found any work even had he not been hired, the worker is not entitled to recompense unless he actually went to the workplace, which is considered beginning the workday. (3)

The other condition is that the employer is exempt in the case of duress. The example in the Talmud is as follows: "When someone hires workers to plow and then rain came and filled the field with water: If he surveyed the field in the evening, the workers lose; if he did not survey the field, it is the owner's loss." (4)

In this case the employer has to make up your loss, but not the full amount.

The guiding principle is that if the owner made every effort to make sure the work still needs to be carried out, but due to an unforeseeable duress the task becomes impossible at the last minute, the owner is exempt. He went to the field the night before, and saw that it was dry and that no storm was imminent.

In your case, a loss occurs if you turned down another job in order to free yourself up for this one, but now it is too late for you to find work for that evening. In this case the employer has to make up your loss. In practice, he doesn't have to pay the full amount of your bill since by sitting home you lose the income but you save yourself significant effort and expense. The employer can deduct a reasonable evaluation of your benefit from being able to sit at home. (This is often assumed to be about half the salary.)

If you couldn't have found alternate work anyway, or alternatively if you can still find alternate work paying a similar amount, then the cancellation doesn't actually cause any loss. You are no worse than you were before, except for the effort of finding a new job or the disappointment of losing the old one.

That doesn't mean that cancelling an agreement should be taken lightly in such a case. The mishnah states that the worker is justified in being resentful of the employer's thoughtless behavior. Some authorities state that this may be considered unfair dealing (mechusar amanah). (5)

SOURCES: (1) Babylonian Talmud Bava Metzia 76a. (2) Babylonian Talmud Bava Metzia 76b (3) Rosh commentary to this passage (4) Babylonian Talmud Bava Metzia 77a (5) Sema commentary to Shulchan Arukh Choshen Mishpat 333:1

The Jewish Ethicist presents some general principles of Jewish law. For specific questions and direct application, please consult a qualified Rabbi.


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