Parshas Eikev 5784 – Intriguing Questions & Answers
Intriguing Questions & Answers: Parshas Eikev 5784
Obligation to Pay a Midwife When Birth Occurs Before Her Arrival
Q: In Eretz Yisroel and other parts of the world, hiring a midwife to assist during childbirth—instead of a doctor—is quite common. Recently, the following incident occurred: A woman going into labor called the midwife to come to the hospital. However, Hashem had other plans, and before the midwife even arrived, the baby was born healthy and happy. When the midwife finally arrived, she was pleased to see the healthy newborn, but later approached the husband and informed him of her fee for the delivery. The husband was puzzled but took the bill nonetheless and said he would be in touch. He then asked me if he was obligated to pay her, considering she didn’t assist in the delivery. He argued that they had hired her for a job she didn’t perform, and since the timing of the birth was beyond their control, he felt he should be exempt. Who is correct in this situation?
A: First, it is important to clarify some basic principles before addressing the practical halacha. If the local custom or a written contract between the midwife and the couple states that payment is required upon being called—even without any services being rendered—they would be obligated to pay the agreed amount. This is generally how piskei din are decided when conditions are pre-established between both parties, or when there is a minhag regarding such matters.
However, in this case, the midwife was relatively new and did not have such stipulations in place, nor was there an established local minhag, making her a regular worker who was hired but ultimately not needed. What is the halacha in such a scenario?
In Shulchan Aruch (Choshen Mishpat 333:1), we learn that if an employer wishes to cancel the job after agreeing to it with the employee, the employer cannot do so without compensation, especially if the job has already started. This compensation is known in halachic terms as “poel batal,” which typically amounts to half the agreed payment.
There is a debate among the Acharonim about whether the employer is obligated to compensate the employee if he lost out on another job due to the cancellation. The Ketzos HaChoshen (ad loc. 2-3) argues that even if the cancellation resulted in the employee losing out on another job (since he had already committed to this job), the employer is not obligated to pay for that loss. On the other hand, the Sema (ad loc. 8) argues that the employer is obligated to pay for this loss. Most Acharonim, including the Nesivos Hamishpat and Mishpat Shalom, concur with the Sema and rule that if the cancellation resulted in a lost job opportunity for the employee, the employer must compensate them for this loss.
However, this consideration would not apply here, as this is only when the cancellation is due to the employer’s decision. In this case, the reason the midwife was not needed was due to an “oneis”—in this case, the baby being born earlier than expected. Therefore, if there was no specific minhag about what to do in such a case, the couple would be exempt from paying. However, if the midwife had already begun providing services, such as offering breathing techniques, she would be entitled to a partial payment for starting the work, but not the full amount.
Now, if someone were to argue that simply getting in the car to drive to the hospital constitutes the start of the job, this would only be insofar as to say that the employer can’t back out. However, it does not oblige the employer to pay the worker’s wages when the worker hasn’t done any actual work for the employer yet, especially in this case where the job is based on kablanus (a specific job), not hourly.
May One Take a Sheitel from a Sheitel-Macher’s House on Shabbos?
Q: Is it permitted to take a sheitel from the sheitel-macher’s house on Shabbos?
A: A question arose regarding a sheitel-macher who receives wigs for styling and washing before Shabbos. Some women are unable to pick up their wigs on Friday before Shabbos, so she brings the wigs from where she works on the sheitels to her living quarters before Shabbos. These women then come to her home on Shabbos to pick up their wigs. The question is whether this falls under the prohibition against taking items from a craftsman’s home on Shabbos, as outlined in Rema (Orach Chaim 252:4): “It is forbidden to take items from a craftsman’s home on Shabbos and Yom Tov,” since it looks like one may have purchased it on Shabbos.
At first glance, it would appear that taking the wigs from the room where the wigs are dropped off during the weekdays would certainly be prohibited on Shabbos, as this would fall under the category of taking items from a craftsman’s home. However, in our case, where the sheitel-macher brings the wigs to the other part of her house before Shabbos, which is not the usual place for picking up the wigs during the week, it would not be considered the “craftsman’s home,” and therefore permitted.
After further thought, we may suggest that even taking the wigs from the designated workplace would not be forbidden. This is because the prohibition applies only to new items. Since this wig was not newly made but merely washed and styled for beauty and freshness, it is not viewed as taking new items from a craftsman’s home, and therefore not forbidden. However, if it is a new wig that has just been sold, it would be forbidden to take it on Shabbos, and several Poskim have indeed written that this is the halacha.
Additionally, the author of “Shevet HaKehati” permits this for another reason, based on what the Rema who writes in Yoreh Deah (87:3), that there is no concern of “maaris ayin” (appearance of wrongdoing) with a rabbinic prohibition (unlike the Shach’s opinion there). Since the prohibition against taking items from a craftsman’s home is due to maaris ayin, and the act of styling the wig only involves a rabbinic prohibition, the prohibition of maaris ayin would not apply in this case. Moreover, when there is a great need, one can be lenient, as the Beur Halacha wonders whether it is permissible altogether to take items from a craftsman’s home in cases of great need (even when it is a Torah prohibition). Thus, in our case, we can combine this reasoning with the Beur Halacha’s uncertainty to be lenient.
Using a Tracker Device on Shabbos
Q: Recently, a question arose regarding the use of a tracker device, such as an AirTag, on Shabbos. These small, coin-sized, battery-operated devices can be attached to various items like keys, wallets, or luggage to track their location. It operates by sending its location via Bluetooth along with a unique code to any nearby device that can receive it. So, for example, if someone loses their keys, they can use their phone to locate them with the tracker.
The question was whether one could attach a tracker to an expensive Shabbos coat, a stroller, or even a child’s pants so that if the item is lost or swapped, it can be easily found after Shabbos.
A: According to the description of the device made by Harav Chaim Bleier, shlit”a, in his Sefer “Chukei Chaim,” the operation of such a device does not involve any direct action or change to the device by the person using it. The device automatically transmits signals every minute, regardless of movement, and there is no change in electricity current when moving the item it is attached to. Therefore, using the device itself does not pose a Shabbos melachah. However, the issues of muktzah and carrying in an area without an eiruv still need to be considered.
Regarding carrying on Shabbos, the basic guideline is that if the tracker is sewn into the coat such that it becomes secondary to the garment, it is considered part of the coat since it serves a function for it. This would be akin to a label with a name and phone number sewn into the coat—since the label serves a function for the garment, there is no issue of carrying. The tracker, even though it cannot be used on Shabbos to locate the item, still serves a purpose by providing the means to find the item later, which is considered a valid function on Shabbos.
Regarding the issue of muktzah as well, Harav Avigdor Neventzhal, shlit”a, ruled that the AirTag attached to a coat or stroller is considered part of the item and as such, does not pose a muktzah issue on Shabbos.
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