QUESTION: The Gemara discusses a case in which a creditor wants to collect a field from the orphaned heirs of the debtor as repayment for his loan, but improvements ("Shevach") were made to the field which increased its value. The orphans claim that they made the improvements and therefore the creditor is not entitled to collect the value of the improvements. The creditor, who is entitled to confiscate the land itself as repayment for his loan, claims that he is entitled to collect the improvements because their father, the debtor, made the improvements to the land.

The Gemara clearly implies that a creditor is not entitled to collect a debt from improvements made by the orphans themselves after their father's death. This seems to contradict the Gemara in Bechoros (52a) which states that a woman whose husband died may not collect her Mezonos or Kesuvah from improvements made to her husband's land by the orphans, because the Chachamim placed limitations on what she may collect. The Gemara there implies that only a widow, who wants to collect her Kesuvah, may not collect the "Shevach," but an ordinary creditor is entitled to collect the "Shevach" which the orphans made in a field. How can the Sugya here be reconciled with the Gemara in Bechoros?


(a) The ROSH (1:39) answers that, in fact, a creditor is not entitled to collect the "Shevach" which the orphans made, as the Gemara here implies. When the Gemara in Bechoros says that a widow cannot collect her Mezonos or her Kesuvah from the "Shevach" because the Chachamim limited her rights, it does not mean that any other creditor may collect from the "Shevach." Rather, the Gemara there singles out a widow because logic would dictate that a widow would be entitled to collect the "Shevach" from the orphans even if an ordinary creditor would not be entitled to do so, since one might have thought that the obligation to pay the Mezonos of a widow is a debt which always falls upon the orphans. Therefore, the Gemara must teach that even the Mezonos of a widow may not be collected from the "Shevach" of the orphans.

(b) TOSFOS earlier (15a, DH Ba'al Chov) disagrees with the Rosh and maintains that a creditor may collect the "Shevach" from the orphans. Tosfos explains that the Gemara here is discussing a case of an "Apotiki." When a creditor collects land of an "Apotiki" along with improvements made by the orphans, they are entitled to collect from the creditor the expenses that they incurred when they made those improvements. This is because an "Apotiki" is considered to be completely in the creditor's possession (after the borrower dies or sells it), and the orphans who improved it therefore have the status of a person who improves his friend's field, who is entitled to reimbursement for his expenses. (Y. MARCUS)



OPINIONS: The Mishnah states that when a hired day-laborer finishes working, the employer has the entire night to pay his wages. If the morning comes and he has not paid his worker, then he transgresses the Isur of "Bal Talin" (Vayikra 19:13).

If external circumstances prevent the employer from paying that night (for example, that night is Shabbos), does the employer transgress any Isur?

(a) The SEFER HA'CHINUCH (#588) is in doubt whether the Isur of "Bal Talin" applies in such a case. The Gemara says that, in a normal case, once the first morning comes and the employer transgresses the Isur of "Bal Talin" because he has not yet paid the worker, there is no Isur of "Bal Talin" thereafter. Consequently, when an employer cannot pay his worker during the first night because it is Shabbos, perhaps there is no Isur of "Bal Talin" at all since "Bal Talin" generally does not apply after the morning that follows the first night.

There is, however, a different Isur, that of "Bal Teshaheh," which is an Isur d'Rabanan that prohibits delaying the payment of a hired worker, based on the verse, "Al Tomar l'Re'acha Lech va'Shuv u'Machar Eten v'Yesh Itach" (Mishlei 3:28). This Isur would apply if the employer delays paying the worker once Shabbos has concluded.

The SHITAH MEKUBETZES adds that although the prohibition of "Bal Talin" does not apply after the first night, the other Isur d'Oraisa of "Lo Savo Alav ha'Shemesh" (Devarim 24:15) -- which prohibits withholding the wages of a hired worker past sunset -- does apply on subsequent nights. Hence, even though it does not apply at sunset of the first night after he finished working (i.e. Motza'i Shabbos), it does apply on Sunday night.

The RAN and NIMUKEI YOSEF disagree with the Shitah Mekubetzes. They maintain that the Isur of "Lo Savo Alav ha'Shemesh" as well applies only on the first night.

(b) The OR SAME'ACH (Hilchos Sechirus 11:2) disagrees with the Sefer ha'Chinuch and maintains that when a worker finishes his work close to Shabbos, the employer is obligated to pay the worker during the day on Friday, before he finishes his work. If the employer fails to pay him, he transgresses the Isur of "Bal Talin." The Or Same'ach cites proof to his opinion from the Yerushalmi.

HALACHAH: The CHAFETZ CHAIM (in AHAVAS CHESED 9:10) writes that where the author of the Sefer ha'Chinuch lived, it was the custom to work on Friday until just before sunset, and thus it was not practically possible for an employer to pay a worker after the completion of his work, before Shabbos. Now, however, the practice is to finish work much earlier in the day on Friday. Thus, a hired laborer has the status of an "hourly worker" ("Sechir Sha'os"), who must be paid before the night arrives.