QUESTION: The Mishnah (75b) states that when a worker retracts from his commitment to the employer and other workers are not readily available for hire, the employer is entitled to hire new workers with the wages that he owes the worker who quit. Rav Nachman says that the employer may pay up to the full wage of the worker who quit, but he may not hold the worker responsible to pay more. The Gemara quotes a Beraisa which states that the employer may hire a new worker at the original worker's expense even for "forty or fifty Zuz" (which is far more than the wage of the original worker). The Gemara explains that the Beraisa refers to a case in which the worker left his package of tools in the house of the employer.

Why does the fact that the worker left his package in the house of the employer entitle the employer to hire new workers at a much higher price?

ANSWER: Many Rishonim (see ROSH and RAMBAN in Kidushin 8a) infer from the Gemara that by merely handing over an object as collateral (Mashkon) one becomes obligated to pay the recipient of the Mashkon, even without making any other Kinyan. Since the worker gave his package as a Mashkon to the employer, he is obligated either to do the work or to pay the employer the value of the Mashkon.

Other Rishonim (see TOSFOS to Kidushin 8a, DH Manah) disagree and maintain that handing over a Mashkon does not effect any obligation. According to these Rishonim, the reason why the employer is entitled to hire new workers at an exorbitant price is because of the damage caused to him by the original worker. Since the original worker quit, the employer now must pay an exorbitant price to hire new workers. Since that loss was caused by the original worker, he is responsible to compensate the employer.

However, if the employer is entitled to hire new workers at the expense of the original worker at an exorbitant price because the original worker caused him damage, then why must he be in possession of the worker's package of tools? Even if he is not holding on to the worker's tools, the worker should still be obligated because of the damage that he caused to the employer! (MA'AYANEI HA'CHOCHMAH)

The MA'AYANEI HA'CHOCHMAH answers that it is very unlikely that the employer will not be able to find workers for hire for double the price of the original worker (in a case where the original worker quit after completing half of the job). Therefore, if the employer is not in possession of the worker's package of tools, he is not believed to claim that he cannot find workers at double the price of the original worker. If, however, the employer is in possession of the worker's package of tools, then he is believed to say that he cannot find workers even at double the price. The Ma'ayanei ha'Chochmah concludes that this is a Takanas Chachamim. (Y. MARCUS)

QUESTION: The Mishnah teaches that if a person rents a donkey and stipulates that he needs it to carry a load over a mountain, and instead he uses it to carry a load in the valley and the donkey dies, he is obligated to pay the owner for the value of the donkey. Even though a renter normally is exempt from liability in the case of the death of the animal (a natural death, or death as a result of normal usage, is considered an Ones), when he misuses the animal he is liable.

In such a case, in which the renter must pay for the full value of the animal he rented because it died as a result of misuse, does the renter also have to pay the rental fee for the amount of time that he used the animal?

(a) The RITVA cites in the name of his teacher ("Mori") that the renter is not obligated to pay the rental fee. His reasoning is that since the renter misused the object, he is comparable to a person who seized someone else's object and used it without permission ("Sho'el she'Lo mi'Da'as"). Such a case is discussed in Bava Kama (97a), where the Gemara concludes that the perpetrator's obligation is determined by the victim: he may demand to be paid for any damages that were caused or he may demand to be paid rent (but he may not claim both). Similarly, in the case of the Gemara here, if the owner of the donkey collects damages, he is not entitled to collect rent.

(b) The RITVA himself disagrees and maintains that the case of the Mishnah here is not comparable to the case in the Gemara in Bava Kama. In the case of the Gemara there, the object came into the hands of the person in an illegal way (by theft, since one who is "Sho'el she'Lo mi'Da'as" is considered a Gazlan), and if he is obligated to pay for damages based on the theft, he is exempt from paying rent, because a thief is not obligated to pay rent for the object that he steals (he is obligated only to return the object or the object's value). In contrast, in the case of the Mishnah, the person acquired the object legally, through a rental agreement. As a renter, his obligation to pay for damages (i.e. for the death of the donkey) does not take effect until the donkey actually dies. Hence, he is obligated to pay rent for the use of the donkey from the time that he obtained it until its death. (Of course, even according to this opinion, he is obligated only to pay for the time that he used the animal and not the entire rental fee.) (See also NESIVOS HA'MISHPAT CM 309:1.)