Bava Metzia 151

אם בעל הבית חוזר בו ידו על התחתונה כל המשנה ידו על התחתונה וכל החוזר בו ידו על התחתונה

IF THE EMPLOYER RETRACTS, HE IS AT A DISADVANTAGE.<span class="x" onmousemove="('comment',' Thus, in the first instance, if labour costs increased after they retracted, the employer may deduct the increase that he will have to pay from the wages due for the work already done. If, on the other hand, they decrease, the profit is the employer's, and the workers cannot demand the whole sum originally agreed upon less the (diminished) cost of completing the work. In the second instance, the employer must pay his workmen for what they have already done pro rata even if labour costs advance, and he must pay more for the rest. Should they decrease, however, he is bound to pay the whole sum originally agreed upon less only the diminished cost of the rest. ');">¹</span>

<big><strong>גמ׳</strong></big> חזרו זה בזה לא קתני אלא הטעו זה את זה דאטעו פועלים אהדדי היכי דמי דאמר ליה בעל הבית זיל אוגר לי פועלים ואזל איהו ואטעינהו

HE WHO ALTERS [THE CONTRACT] IS AT A DISADVANTAGE,<span class="x" onmousemove="('comment',' E.g., if a dyer was ordered to dye wool red, and dyed it black, he can only demand either his own expenses for dyeing or the increased value of the wool, whichever is less. ');">²</span>

היכי דמי אי דאמר ליה בעל הבית בארבעה ואזיל איהו אמר להו בתלתא תרעומת מאי עבידתיה סבור וקביל אי דאמר ליה בעל הבית בתלתא ואזיל איהו אמר להו בארבעה ה"ד אי דאמר להו שכרכם עלי נתיב להו מדידיה

AND HE WHO RETRACTS IS AT A DISADVANTAGE.

דתניא השוכר את הפועל לעשות בשלו והראהו בשל חבירו נותן לו שכרו משלם וחוזר ונוטל מבעל הבית מה שההנהו

<b><i>GEMARA</i></b>. It is not stated, One or the other retracts. but THEY DECEIVE EACH OTHER, implying the artisans deceive each other:<span class="x" onmousemove="('comment',' Because to denote that the employer and employees deceived each other, the Mishnaic idiom requires the first phrase. ');">³</span>

לא צריכא דאמר להו שכרכם על בעל הבית

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 [<i>zuz</i> 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!<span class="x" onmousemove="('comment',' And when an employer instructs a foreman to engage labourers at three sins, and he engages them at four, it is as though he had engaged them for himself but directed them to his employer's work. ');">⁴</span>

ולחזי פועלים היכי מיתגרי לא צריכא דאיכא דמגר בארבעה ואיכא דמתגר בתלתא דאמרו ליה אי לאו דאמרת לן בארבעה טרחינן ומתגרינן בארבעה

— 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?<span class="x" onmousemove="('comment',' For if four zuz is the usual wage. the foreman has a right to claim that sum from the employer, as stated in the Baraitha just cited, he receives the value whereby he benefitted him. If, on the other hand, three is the usual wage, the workers must accept this without any resentment, since he explicitly stipulated that the responsibility for their wages rested on the employer. ');">⁵</span>

איבעית אימא הכא בבעל הבית עסקינן דאמרו ליה אי לאו דאמרת לן בארבעה הוה זילא בן מילתא לאתגורי

— It is necessary [to teach this] only when some [workmen] engage themselves for four [<i>zuz</i>] and others for three. Hence they can say to him, 'Had you not told us that it is for four <i>zuz</i>, we would have taken the trouble to find employment at four.'<span class="x" onmousemove="('comment',' Hence they have righteous cause for resentment. Yet, since he stipulated that the employer was responsible for their wages, they have no legal redress. ');">⁶</span>

איבעית אימא לעולם בפועלים עסקינן דאמרי ליה כיון דאמרת לן בארבעה טרחינן ועבדינן לך עבידתא שפירתא וליחזי עבידתייהו בריפקא ריפקא נמי מידע ידע דמלי מיא ולא ידיע

Alternatively, this may refer to a householder.<span class="x" onmousemove="('comment',' I.e., who works for himself, but if offered a high wage, is willing to work for another. ');">⁷</span>

איבעית אימא לעולם דאמר ליה בעל הבית בארבעה ואזל איהו אמר להו בתלתא ודקאמרת סבור וקביל דאמרי ליה לית לך (משלי ג, כז) אל תמנע טוב מבעליו

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?<span class="x" onmousemove="('comment',' To see if it is really worth the higher wage, in which case the employer must pay four, notwithstanding his instructions. This, however, is only when some receive four zuz for superior work, but if none do, they have no legal claim. (H.M. CXXXII, 1 and [H], a.l.) ');">⁸</span>

פשיטא אי אמר ליה בעל הבית בתלתא ואזל איהו א"ל בארבעה ואמרי ליה כמו שאמר בעל הבית דעתייהו אעילויא

— This refers to a dyke.<span class="x" onmousemove="('comment',' They were engaged to dig a dyke. ');">⁹</span>

אלא אי א"ל בעל הבית בארבעה ואזל איהו אמר להו בתלתא ואמרי כמה שאמר בעל הבית מאי אדיבורא דידיה קא סמכי דאמרי ליה מהימנת לן דהכי אמר בעל הבית או דילמא אדיבורא דבעל הבית קא סמכי

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, <i>Withhold not good from them to whom it is due</i>?'<span class="x" onmousemove="('comment',' Prov. III, 27. Though they undertook to work for three they are justified in resenting that the employer's agent offered them less than he might have done. ');">¹⁰</span>

ת"ש הבא לי גיטי

It is obvious, if the employer instructed him [to engage labourers] for three [<i>zuz</i> 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],<span class="x" onmousemove="('comment',' I.e., they certainly did not stipulate for less. ');">¹¹</span>

ואשתך אמרה התקבל לי גיטי והוא אומר הילך כמה שאמרה אמר רב נחמן אמר רבה בר אבוה אמר רב אפי' הגיע גט לידה אינה מגורשת

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?<span class="x" onmousemove="('comment',' I.e., by saying, 'Be it as the employer instructed', they meant to stipulate that if he had stated more than three, they were to receive the higher wage. ');">¹²</span>

שמעת מינה אדיבורא דידיה קא סמיך דאי סלקא דעתך דאדיבורא דידה קא סמיך מכי מטי גיטא לידה מיהא תיגרש אמר רב אשי

— 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!<span class="x" onmousemove="('comment',' A woman is not divorced until the divorce actually reaches her hand or the hand of an agent appointed by her for the express purpose of accepting it on her behalf: further, an agent's powers are strictly limited to the terms of his appointment, and he may not exceed them in the least. Now, in this case, the wife merely authorised the agent to bring it to her, whereas the agent stated to the husband that he was delegated to accept it on her behalf; whilst the husband, in handing him the divorce, asserted that he was giving it in accordance with her instructions. Now, no man can take a divorce to a woman on her husband's behalf, unless her husband appoints him for that purpose; and a husband cannot authorise a man to accept a divorce on his wife's behalf, i.e., that by his acceptance she shall be divorced, for such appointment is the wife's prerogative. Hence, when the husband said, 'Take it in accordance with her instructions', he must have meant, 'I believe that she appointed you to accept it on her behalf, that by your acceptance she should become divorced'; consequently he did not appoint him as agent to take it to his wife. (For though the wife had appointed him as her agent to bring it to her, the husband too must appoint him as his agent to take it to her; otherwise the divorce is invalid. But in this case, the husband, believing that he was agent for acceptance, would naturally not instruct him to take it to her.) Therefore, she is not divorced at all, neither by his acceptance, since she did not authorise him to accept it for her, nor even by her own, since he had not been authorised by the husband to take it to her. Now, this holds good on the hypothesis that the husband relied on the agent's statement only. But, if it be assumed that he meant, 'I give it to you exactly in accordance with her instructions, and not merely in accordance with your word,' that is tantamount to saying, 'As she has instructed you to be her agent to bring it to her, so do I instruct you to be my agent to carry it to her'; and therefore, when it reaches her hand, she should certainly be divorced. This proves that the husband relied on the agent's statement only, and by analogy, the workers rely upon the employer's delegate. ');">¹³</span> Said R. Ashi: