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HaRav Yishai Natan –
I hired a kallah teacher for my daughter, who is getting married soon. I asked around and heard good things about her from many people. After I had already hired her, I spoke to a close friend who told me that she used her for her daughter and did not have a good experience. She suggested that I not use her.
I called the kallah teacher to cancel, but she said she had already bought notebooks, markers, and other things for my daughter. She also already spent time preparing. She said that she does not think it is okay for me to back out halachically. Is she correct?
Am I allowed to cancel now that I heard she may not be a good kallah teacher?
There are a few points to discuss.
First, if someone hires a worker who presented himself as competent, and later it becomes clear that he is not fit for the job, the employer may cancel. The agreement was made under false pretenses, similar to Mekah Ta’ut[1], where a person buys something assuming it has no defect, and later finds a defect.
However, hearing from one person that she was not good does not prove that she is unfit. Since you heard good things from many others, this would not be enough to say the agreement was a Sechirut BeTa’ut.
The next question is whether you would be hayav to pay her if you cancel. When an employer backs out after hiring a worker, there are two possible reasons to pay. First, if the worker could have taken another job and now can no longer get it, that is called garmi. Second, even if he did not lose another job, if he already began working, that is called hat’halat melachah[2].
Assuming she did not give up another job, we are only concerned with hat’halat melachah. The Beraitta[3] says that donkey drivers were sent to pick up wheat, but when they arrived, there was no wheat. The employer must still pay them as a po’el batel, an idle worker, since they already began the job by traveling there.
However, Hikreh Lev and Avneh Nezer[4] say this applies only to a day worker who is paid for traveling to work. As Shulhan Aruch[5] writes, the trip there is paid by the employer, while the trip home is on the worker. But a kablan, or a day worker who is not paid for travel, is not considered to have begun the work through traveling.
Therefore, buying notebooks and similar preparations may not be considered hat’halat melachah, since in this type of work the employer does not pay for that as part of the job. Even if the materials are included in the price, it may be viewed as two separate parts: payment for the job, and making the worker a messenger to buy materials that will be reimbursed[6].
However, some say that buying materials is considered hat’halat melachah, and the employer cannot back out without paying[7]. Still, this may only apply to materials specifically needed for the job. It is not clear that notebooks and markers are necessary in that way. Also, perhaps only preparation known beforehand as necessary for the job can be considered hat’halat melachah. If the employer did not know these preparations were needed, it would not be considered a hat’halah[8].
Regarding reviewing the halachot before teaching, Kovetz HaYashar VeHaTov[9] discusses a tutor who prepared, and then the father canceled. He writes that according to the Avneh Nezer, this is not hat’halah, since the preparation is for the worker himself, not for the employer.
However, Aruch HaShulhan[10] writes that a hazzan, ba’al koreh, or ba’al toke’ah hired for Shabbat or Yom Tov may be paid, even though Shabbat payment is generally assur, because he also prepares before Shabbat. The payment can therefore be through havla’ah, combining Shabbat pay with weekday preparation. According to this, preparation is considered part of the job.
But Rav Ovadia Yosef[11] argues that they are not paying the hazzan for preparing; they only want the Shabbat service. He permits paying a hazzan for a different reason: payment for a mitzvah done for the tzibbur is allowed. According to Rav Ovadia, preparation is not part of the job and would not be hat’halat melachah.
Regarding reimbursement, if the items can be returned or used for another kallah, there is no monetary loss. Even if she cannot return them, you would not be hayav to pay for them, since it was never made clear that she needed to buy these items for the class. Therefore, it would not be considered motzi mamon al piv hayav.
In conclusion, buying materials would be a mahloket if it is called hat’halat melachah. In your case, it is possible that everyone would agree that you may cancel. Regarding preparation; according to the Avneh Nezer, it seems to be a mahloket, with Rav Ovadia Yosef holding that there is no monetary obligation to pay.
Still, there may be room for ta’arumot, complaints. Shulhan Aruch[12] writes that if an employer backs out when there was no hat’halah, the worker may have complaints. There is a mahloket rishonim if this is only when there is tirha, meaning the worker has to exert herself to find another job, or even without tirha. It is not clear what Maran holds[13], but the Shach[14] and others say it is only when there is tirha.
Usually, a kallah teacher gets clients through word of mouth, not through extra tirha. Also, if she is anyway looking for more clients, the same effort can bring more than one client, so there may be no extra tirha because of you.
Nevertheless, there may be a problem of mehusrah amanah[15], going back on your word. Some say that if something new came up that was not known before, there is no mehusrah amanah. This is called treh ta’arei. However, Maran and the Rama[16] do not hold this way, though there is room to be lenient in some cases. A Rav would have to find out exactly what happened in your case and speak to both sides.
In conclusion, you would not be hayav to pay her wages if you cancel. However, there may be room for ta’arumot and mehusrah amanah depending on what the details were, which would require you to appease her.
[1] שו׳׳ע חו׳׳מ רלב
[2] שו׳׳ע חו׳׳מ שלג:א,ב
[3] ב׳׳מ עו, ב
[4] ב:עב / נב:ד
[5] חו׳׳מ שלא
[6] משפטי החושן שלג:א
[7] משפט הפועלים ב:טו, דברי מלכיאל ה:רכט, מחנה אפרים פ׳׳ו, שו׳׳ת לבושי מרדכי לד
[8] משפטי החושן שם
[9] ח׳׳ד דף קסז
[10] או׳׳ח שו:יב
[11] יביע אומר או׳׳ח ה:כה:ח
[12] חו׳׳מ שלג:א,ב
[13] ע׳ שו׳׳ע שם סע׳ ב
[14] שם סק׳׳א
[15] שו׳׳ע חו׳׳מ סי׳ רד
[16] שם יא