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HaRav Yishai Natan –
My wife and I reserved an hour at an escape room for ourselves and our two older children. We arranged for a babysitter to watch our two-year-old while we went. Since the escape room was about twenty minutes away, she was supposed to arrive at 6:30 PM. When 6:30 passed and she still had not arrived, I called her several times, but she did not answer. By 6:50 PM, I realized that she probably was not coming. I immediately began calling other babysitters to see if anyone could come right away, but unfortunately, no one was available.
I then called the escape room. They told me that since we had already reserved and paid for that specific time slot, we could not reschedule. If we did not come, we would lose the full payment. At 7:30 PM, the original babysitter finally returned my call. She explained that she had completely forgotten and said that she could come immediately. By then, however, it was too late for us to go. The escape room cost $150.
Is the babysitter responsible to reimburse us for the money we lost?
Can a Worker Back Out?
The Shulhan Aruch (HM 333:3) rules that a worker is generally allowed to quit, even in the middle of a job, and certainly before beginning. This is based on the Torah describing B’neh Yisrael as avadim—servants—to Hashem. From here, the Gemara teaches that a person should not become an eved la’avadim—a servant to other servants. Therefore, a worker generally has the right to stop working and return to being a servant only of Hashem.
However, Maran rules (HM 333:5) that if the employer will suffer a loss because the worker backs out, the worker may not quit. If he does quit, the employer may hire a replacement, even if the replacement charges more. The original worker can be held responsible for the extra cost, up to the amount that he himself was supposed to earn. For example, if the original worker was supposed to receive $100 and the replacement charges $150, the first worker can be required to pay the additional $50.
The employer may also “persuade” the original worker to continue by offering him more money, but afterward pay him only the amount they originally agreed upon.
Could You Have Hired Someone Else?
In your case, once you realized at 6:50 PM that the babysitter was not coming, you could theoretically have offered another babysitter a much higher rate. The original babysitter could then have been responsible for the additional cost. However, you did not know about this option. Even if you had known, it is very possible that it would not have helped because of the extremely short notice. The question is therefore different: once you actually lost the $150, is the babysitter responsible for that loss?
Grama
The Hazon Ish (Bava Kama 23:25) explains that when a worker accepts a job, he is understood to accept responsibility for the extra cost of hiring a replacement if he backs out, even though this is a grama. However, he does not accept responsibility for other losses, since normally another worker can be found by offering more money. Therefore, in your case, where no replacement could be found and the $150 was lost, the babysitter would normally be patur because the loss was only grama that she never accepted responsibility for.
The Opinion of the Rama
The Rama (HM 333:5), however, appears to disagree. According to the Rama, the case in which the employer may only charge the worker for the increased cost of a replacement is when there was no actual monetary loss. For example, if someone hired a musician for an event and the musician did not come, the employer lost the music, but he did not necessarily lose actual money. If, however, the worker’s failure causes an actual financial loss, the Rama holds that the worker must pay for that loss.
It would seem that according to the Rama, this type of damage is considered garmi—a more direct form of causing damage—rather than ordinary grama, and the worker is therefore hayav to pay.[1] It appears that both the Shach (HM 333:39) and the Netivot HaMishpat rule in accordance with the Rama.
The Opinion of Maran
Maran, however, in Shulhan Aruch (HM 333:5), does not make this distinction between different types of loss. According to his ruling, the worker would normally remain patur from paying for the actual loss. For a Sephardi following Maran, one can not obligate the babysitter to reimburse the $150.
When the Worker Simply Disappears
The Hazon Ish (ibid.) adds that a worker is only patur if he tells the employer that he is backing out, giving him a chance to find a replacement. If the worker simply does not show up and gives no notice, even Maran may agree that he must pay for the loss.
In your case, the babysitter forgot completely and did not answer your calls. By the time she called back at 7:30, it was already too late to find someone else and make the reservation.
The Final Halachah
Based on the ruling of the Hazon Ish—that even Maran may obligate a worker who simply disappears and prevents the employer from finding a replacement—there are strong grounds to require the babysitter to reimburse the money you lost.
In addition, even in an ordinary case of negligent grama, although a person may sometimes be patur in bet din, he can still be hayav latzet yedei Shamayim—obligated before Heaven to the correct the loss. Therefore, considering both factors, there are strong grounds to obligate the babysitter to reimburse the $150 that was lost because she failed to notify you in time.
[1] The Netivot HaMishpat (333:3) explains that this responsibility may be based either on a special takana established between workers and employers, or on the concept of arvut—guaranteed responsibility—as discussed in Netivot HaMishpat 306:6.