By the Bais Hora'ah
I scheduled a carpenter to come to my house to build some cabinets and shelves, and we agreed on a price. Before the scheduled date I found a handyman who charged less. I forgot to contact the first carpenter to cancel and he came on the scheduled date and wants to be paid in full what I was going to pay him.
Q: Am I obligated to pay his claim? Would there be a difference if I had called in advance and canceled?
A: Last week we discussed what happens when the carpenter arrives for the scheduled service call because the homeowner forgot to cancel the appointment. Now we will discuss whether the halachah is different if the service call was canceled in advance of the scheduled date.
Last week we said that traveling to work constitutes a kinyan for an employment agreement and the employer is obligated to pay the employee the agreed-upon amount (minus the amount deducted for a poel batel — an unemployed worker).
Some authorities write that when such a kinyan was made, the employer’s obligation to pay the employee is in accordance with the general parameters of paying full-fledged employees. Consequently, the prohibition of bal talin — delayed payment of an employee, is in force (Chazon Ish, B.K. 23:36).
If, however, the employee did not yet begin working so that the employment agreement was never finalized with a kinyan, the employer is not obligated to pay unless he caused the employee a loss by reserving his time and preventing him from finding alternative employment. In other words, if the employee turned down another job because he was already scheduled to work at that time and now cannot find a replacement job, the employer who canceled must pay the employee as a poel batel.
There are some authorities who maintain that even in this circumstance the employer cannot be forced to pay the employee because the damage he caused was indirect and involves potential loss of profit (meni’as revach) rather than an out-of-pocket loss (Ketzos 333:2).
However, Shulchan Aruch (C.M. 333:2) and other Rishonim reject that perspective and obligate the employer to pay (Tehillah L’David). One reason to obligate the employer in this circumstance is that Chazal instituted that an employer may not cancel an employment agreement if it will cause the employee a loss of income; if he does cancel, he is obligated to cover the employee’s loss (Nesivos 333:3). Obviously, the employee then receives the discounted payment of a poel batel (C.M. 333:2).
When it is common for employees to charge a fixed amount for canceled appointments (e.g., a doctor), that custom is binding and the employer (i.e., the patient) must pay that amount.
Whenever the employer must pay for canceling an appointment, the payment is for damages rather than employment, and the prohibition of bal talin — delayed payment of an employee, does not apply (Chazon Ish ad loc.), although he might be violating divrei kabbalah — the words of the Prophets, if he refuses to pay immediately when he has the funds (C.M. 97:3; 339:7).