1) APPOINTING A "SHALI'ACH" TO HIRE A WORKER
QUESTION: The Gemara cites a Beraisa which says that when a person tells his friend to hire workers for him, neither the employer nor his friend transgresses the Isur of "Bal Talin" when the payment of the workers' wages is delayed. The employer does not transgress the Isur because he did not personally hire the workers, and his friend does not transgress the Isur because the workers are not working for him.
Why, though, should the employer not transgress "Bal Talin" if he delays paying the workers? Since he appointed his friend as a Shali'ach to hire them, it should be as if he hired the workers himself. (TOSFOS RID, RITVA YESHANOS)
(a) The TOSFOS RID answers that when workers do not see the employer who hires them, they do not rely on the employer to pay them promptly upon the completion of their work. Therefore, when an employer hires workers through a Shali'ach, even though the workers trust that the Shali'ach was appointed by the employer to hire them, they make an understood, unstated agreement that the employer may delay payment of their wages and that they forgo the right to prompt payment.
The Tosfos Rid's explanation might be based on the Gemara that follows, in which Rabah bar Rav Huna teaches that the market-goers of Sura do not transgress "Bal Talin" if they do not pay a worker when he finishes his work, because the workers know that their employers will not have money with which to pay them until the market day arrives. The market-goers do transgress, however, the Isur of "Bal Teshaheh." This Gemara might be the source for the Tosfos Rid's logic that an employer does not transgress "Bal Talin" when there is an unspoken understanding that he will not have to pay the worker immediately when the work is finished.
(b) RASHI (110b, DH Zeh) writes that since the employer did not hire the workers personally, the workers are not considered his "Sechirim." Rashi seems to understand that when the Torah uses the word "Sachir" it refers to a person whom the employer personally hires (and not to a person hired by a Shali'ach). (See also BACH CM 339:6.)
Rashi might mean that although a Shali'ach can effect a Kinyan in the place of his Meshale'ach (the person who appoints him), the Shali'ach does not take the place of the Meshale'ach with regard to personal actions which do not effect a Kinyan. For example, a Shali'ach cannot wear Tefilin or sit in a Sukah on behalf of another person (see at length TOSFOS RID to Kidushin 42a, and KETZOS HA'CHOSHEN CM 196). Thus, although it is considered as if the Meshale'ach hired the workers and obligated himself to pay them for his work (which is an Kinyan), the Shali'ach's action still is not considered as if the Meshale'ach himself personally spoke to them (which is a personal action, not a Kinyan).
It is clear that Rashi and the Tosfos Rid differ in their understanding of why the employer does not transgress the Isur of "Bal Talin." Their dispute might be based on two different ways to understand the Isur of "Bal Teshaheh."
Although a person who hires a worker through a Shali'ach does not transgress "Bal Talin" when he delays the worker's wages, it is clear that he transgresses the Isur of "Bal Teshaheh" if he delays payment; l'Chatchilah, he is not permitted to delay his worker's wages indefinitely. The Rishonim here write explicitly that the device of hiring workers through a Shali'ach serves to exempt the employer only from the Isur of "Bal Talin" but not from the Isur of "Bal Teshaheh" (see TOSFOS and TOSFOS HA'ROSH to 111a, DH Amar Lei, and Shulchan Aruch CM 339:7). According to the Tosfos Rid, even when workers allow their employer to delay payment, when the employer has the money with which to pay he must pay his workers as soon as he can because of his own obligation of "Bal Teshaheh." Only the Isur of "Bal Talin" is affected by an unspoken agreement between the workers and the employer.
Perhaps Rashi explains the Gemara differently because he disagrees with this conclusion and maintains that if the workers did forgo the prompt payment of their wages, then the employer would be exempt from "Bal Teshaheh" as well (as the SHACH CM 339:2 cites from the SEFER CHASIDIM). Rashi therefore explains that the employer is exempt from "Bal Talin" because of a technical point: the worker is not called the employer's "Sachir." When the employer is exempt from "Bal Talin" because of a technical point, the Isur of "Bal Teshaheh" still applies and obligates the employer to pay his worker promptly (as the Gemara teaches (110b) with regard to an employer who does not pay his workers the first morning after their work has finished).
The Tosfos Rid may have found a source for his ruling (that "Bal Teshaheh" applies even when the workers forgo their right to prompt payment -- in the abovementioned Gemara about the market-goers. The Gemara says that even though the market-goers do not transgress "Bal Talin," they do transgress "Bal Teshaheh." The ME'IRI explains that this means that the market-goers do not transgress "Bal Talin" until the day of the market. Once the market day passes, though, they do transgress "Bal Talin" if they do not pay, since that day is considered the first day of their obligation to pay (which is the only day for which "Bal Talin" applies). The Gemara's statement that they do not transgress "Bal Talin," then, refers to the period of time before the market day. When the Gemara says that the market-goers do transgress "Bal Teshaheh," it must mean, therefore, that they transgress "Bal Teshaheh" even before the market day arrives, even though the workers had an unspoken agreement with the employer that he would not be obligated to pay until the market day. This could be a source for the Tosfos Rid's position that even after the workers forgo prompt payment, the employer is obligated to pay them if he has money with which to pay.
Rashi, on the other hand, explains the Gemara about the market-goers differently, consistent with his own view. Since Rashi maintains that "Bal Teshaheh" cannot apply if the workers forgo their prompt payment, the Gemara must mean that market-goers transgress only "Bal Teshaheh" and not "Bal Talin" even after the market day. Rashi therefore explains that the market-goers are exempt from ever transgressing "Bal Talin," even after the market day, since "Bal Talin" applies only on the day after the work is finished (and not the day after the obligation to pay begins). (M. KORNFELD)
2) THE PUNISHMENT FOR TRANSGRESSING "BAL TALIN"
OPINIONS: The Gemara discusses the prohibition against delaying the payment owed to one's hired worker. Does an employer who does not pay his worker's wages on time receive Malkus for transgressing the Isur of "Bal Talin"?
(a) TOSFOS (61a, DH la'Avor) maintains that a person who transgresses the prohibition of "Bal Talin" is punished with Malkus. Tosfos apparently follows the view that a person receives Malkus even for a "Lav she'Ein Bo Ma'aseh," a prohibition that is transgressed without any positive action.
(b) The RAMBAM (Hilchos Sechirus 11:1) disagrees with Tosfos and maintains that since a person who delays his worker's wages still has an obligation to pay the worker, he does not receive Malkus. Similarly, the SEFER HA'CHINUCH (#230) writes that the employer does not receive Malkus because he still has an opportunity to pay the worker and rectify his transgression.
The MINCHAS CHINUCH raises an objection to this reasoning. When the employer eventually pays the worker, he does not rectify the prohibition that he transgressed when he delayed the payment. The prohibition to withhold the wages of a worker is not like the prohibition of stealing. When a person steals, he withholds property that belongs to someone else. When he delays payment to a worker, he does not withhold money that belongs to the worker; rather, he merely delays payment. The act of delaying the payment is an Aveirah by itself, and thus it is not rectified by the eventual payment. The Aveirah of stealing, on the other hand, involves keeping property that belongs to someone else, and a person therefore rectifies the Aveirah when he returns the stolen property.
(c) The MINCHAS CHINUCH cites a different opinion which maintains that the employer does not receive Malkus because it is a "Lav she'Ein Bo Ma'aseh" -- an Aveirah done without an action, and the Halachah is that Malkus is given only for an Aveirah that is transgressed by a positive action.
This is also the reasoning of the SHA'AR HA'MELECH (Hilchos Chametz 1:3, DH v'Derech Agav). The Sha'ar ha'Melech points out that the reason given by the Sefer ha'Chinuch (that the employer is still able to pay) is more encompassing than his reason (that the Isur is a "Lav she'Ein Bo Ma'aseh"), because sometimes the Isur of "Bal Talin" is transgressed with a positive action, such as when there was a specific item that was designated to be the payment for the work, and the employer keeps that item for himself. (Y. MARCUS)
3) WHAT IS "GEZEILAH"?
QUESTION: The Gemara quotes a Beraisa which states that there are five prohibitions which an employer might transgress when he fails to pay his worker. Among these are "Lo Sa'ashok Es Re'acha" (Vayikra 19:13), "Lo Sigzol" (ibid.), and "Lo Sa'ashok Sachir" (Devarim 24:14). The Gemara asks what the difference is between the Isur of Gezel and the Isur of Oshek. Rava answers that Gezel and Oshek are the same, and the Torah merely makes the employer liable for an additional transgression.
This Gemara seems to contradict the words of the RAMBAM (Hilchos Gezeilah 1:3-4), who writes that Gezel and Oshek are two different prohibitions. The Rambam writes that the prohibition of Gezeilah applies when one forcibly takes money from someone else (such as by seizing an object from him). In contrast, Oshek applies when one refuses to pay money that he owes to someone else. If the Gemara concludes that Gezel and Oshek represent the same action (for which the Torah makes two prohibitions), why does the Rambam say that they represent two different actions? Moreover, the Gemara earlier (61a) states that the verse of "Lo Sigzol" refers specifically to the prohibition against withholding a worker's wages, while the general prohibition against stealing is derived from the prohibitions of Ribis and Ona'ah. Why, then, does the Rambam state that the verse of "Lo Sigzol" refers to the general prohibition against stealing? (MAGID MISHNEH)
ANSWER: RAV YERUCHAM FISHEL PERLOW (in Hagahos to Sefer ha'Mitzvos, Lo Sa'aseh #50, p. 50) answers that the straightforward meaning of the verse "Lo Sigzol" is a prohibition against forcibly taking money from someone else, as the Rambam writes. There is, however, a second form of Gezeilah. This second form of Gezeilah is derived from the fact that the words "Lo Sigzol" are found in the same verse as "Lo Sa'ashok." Rava's intention in the Gemara here is to teach that the second form of Gezeilah is the same as the Isur of Oshek. Certainly, however, the straightforward Isur of Gezeilah is different from the Isur of Oshek, as the Rambam describes. This is also the way the PNEI YEHOSHUA and LECHEM MISHNEH explain the Rambam. (See also VILNA GA'ON, CM 359:10, who elaborates on this answer.)
The Lechem Mishneh adds that the Rambam is troubled by the question of TOSFOS (DH v'Lamah), and that is why he explains that there is a general prohibition of Gezeilah apart from the specific form of Gezeilah which applies only to a worker's wages. Tosfos asks that if Gezeilah and Oshek are the same Isur, then although it makes sense for the Torah to mention both with regard to one who withholds a worker's wages (in order to teach that a person transgresses two Isurim when he withholds the wages), why does the Torah also mention both Gezeilah and Oshek with regard to a person who must bring a Korban Asham Gezeilos, in the verse "O b'Gezel O Ashak Es Amiso" (Vayikra 5:21)? The Rambam understands that since the Torah specifies that a person is obligated to bring a Korban Asham Gezeilos for both Gezeilah and Oshek, there is a separate, general prohibition of Gezeilah.