Parshas Yisro 5785 – Intriguing Questions & Answers
Concern of “Bal Talin” When Paying by Check
Q: I am often asked whether one fulfills the mitzvah of “Biyomo Titen Secharo” (the mitzvah to pay a worker on time) or conversely, c”v, transgresses “Bal Talin” (the aveirah for not paying on time) when paying by check?
A: The Shulchan Aruch (Choshen Mishpat 339:1) writes that there is a mitzvah to pay a hired worker on time, and if one delays, he transgresses a prohibition. The mitzvah is the one stated in the posuk (Devarim 24:15) “Biyomo Titen Secharo,” which is a mitzvas aseih, and further it is written “V’lo Tavo Alav Hashemesh,” which is a mitzvas lo saseih. This posuk refers to a night worker whose wages are due at the end of the night, and if the employer delays until the end of the following day, he transgresses the lav, as explained there in Shulchan Aruch (Se’if 3). Additionally, it is stated (Vayikra 19:13), “Lo Talin Pe’ulas Sachir Itcha Ad Boker,” which refers to a day worker whose wages are due at the end of the day, and the employer transgresses if he delays payment beyond the following morning.
We must consider whether the Shulchan Aruch means that one only transgresses a single prohibition if he delays payment, and accordingly, that the five prohibitions are only when one does not intend to pay at all. It would seem from Se’if 2 that one does not transgress the other prohibitions unless he has no intention of paying at all. Indeed, the Sema (1) states that if one delays payment but intends to pay later, he immediately transgresses “Lo Talin Pe’ulas Sachir” as well as “Lo Tavo Alav Hashemesh,” but not the other lavin. However, the Meiri (Bava Metzia 111b) writes that even if one merely delays payment, he transgresses five lavin.
Another question to examine is whether someone who delays payment of a worker transgresses the prohibition of gezel, even though he eventually pays. At first, one would say that the prohibition of gezel does not apply to someone who intends to pay his debt. However, in the Rambam’s Sefer HaMitzvos (Lo Sasein 244), he writes that even if one takes something only temporarily with intent to later return it, he still transgresses the prohibition of gezel. Accordingly, it would seem that even merely withholding wages falls under the prohibition of gezel. See further in Sefer Darkei Choshen (p.81).
Regarding the importance and caution one must take in this matter, see Sefer Ahavas Chesed (9: 9), where the Chofetz Chaim rules that when the due time for wage payment arrives, the employer is forbidden to spend his money if he knows he will not have enough left to pay the worker’s wages, even if the worker has not yet demanded payment, and certainly if he has already demanded it. It appears from Nesiv HaChesed (25) that if he spent his money and then the worker demanded payment and he had none left, he transgresses the positive commandment of “Biyomo Titen Secharo,” though regarding the negative commandment of “Bal Talin,” it is not entirely clear whether he transgresses.
In Sefer Erech Shai (§339), it is written that if at the time the payment was due, he had money, but later, at the final deadline—such as dawn for a day worker or sunset for a night worker—he no longer had money, he certainly transgresses “Bal Talin,” even if it was beyond his control. Since he was already obligated to pay and had the means to do so at the start of the deadline, he should have paid immediately, as it is proper to act promptly in mitzvos—zerizin makdimin l’mitzvos.
Now, regarding the question at hand—whether one fulfills “Biyomo Titen Secharo” by paying with a check—one must first examine whether a debt can be paid with shaveh kesef (equivalent value) or if only actual money suffices. The Mishnah (Bava Metzia 118a) states that if an employer hires a worker and at the time of payment offers him straw instead of money, the worker may refuse. The Rishonim offer two explanations: Rashi explains that although generally “Shaveh Kesef Kekesef” (equivalent value is like cash), in the case of a worker, the Torah specifically commands us “Bal Talin,” as this is what they agreed upon. Other Rishonim add that standard employment agreements assume payment will be in cash. The Rashba (cited in Shitah Mekubetzes, Bava Metzia 117b and in Pischei Teshuva 336:1) states that because a worker needs his wages for daily sustenance, he must be paid in cash, not in goods. See Pischei Teshuva there for further practical differences between these approaches.
Now, in light of this, the question arises whether a check is considered money. Poskim state (see Sefer “Check BaHalachah”) that in our times, since the common practice is to pay workers by check, it is as if the worker implicitly agreed to this. Therefore, according to Rashi, one fulfills “Biyomo Titen Secharo” with a check just as with actual cash.
According to the Rashba’s reasoning, however, while one does not transgress “Bal Talin” since ultimately, he has paid him, nevertheless, if the worker cannot use the check for food immediately, one still does not fulfill the positive commandment of “Biyomo Titen Secharo” unless the worker can readily purchase goods with it at a local grocery.
Similarly, if the worker can easily cash the check—such as in a place where banks allow immediate withdrawal, or where a gemach exchanges checks for cash within the wage period—one would fulfill “Biyomo Titen Secharo.” However, if the check cannot be cashed easily and cannot be used for purchases, even though the employer does not transgress “Bal Talin” (as it is considered an agreed-upon payment method), he does not fulfill “Biyomo Titen Secharo” according to the Rashba.
The Pischei Choshen (9:36) and Teshuvos VeHanhagos (Vol. 3, 470:3) cited in Sefer Chelkas Binyamin (339:92) state that paying with a check is considered cash, and therefore, if the worker can withdraw the money on the same day, it is a fulfillment of the mitzvah. Similarly, a bank transfer (or “Zelle”) is certainly valid. However, if the worker cannot withdraw the money that day—such as if the bank is already closed—it is unclear whether the check is considered cash for this purpose.
Nevertheless, Sefer Mishpat HaPo’alim (30:14) rules that a check is considered shaveh kesef, and therefore if the worker accepts it, the employer does not transgress “Bal Talin” and also fulfills “Biyomo Titen Secharo.” Even according to Rav Yosef Shalom Elyashiv zt”l, who ruled that checks are akin to promissory notes (i.e., “IOU”) rather than cash, they are worse than shaveh kesef, so if the worker agrees to accept a check, he fulfills the mitzvah.
Nonetheless, some Poskim write that although there is room for leniency, it is preferable to pay with cash, for even if the check can be cashed on that day, it is only a directive to the bank to pay a third party, and not payment itself. Even if the worker agrees, this may only avoid the prohibition of Bal Talin, but might not be a fulfillment of Biyomo Titen Secharo. Nevertheless, most Poskim maintain that a check is considered to be regular payment, and therefore if one is not able to pay with cash, he may do so with a check.
It is worth noting what is brought in the Sefer “Biyomo Titen Secharo,” that regarding jobs and services where checks are uncommon—such as paying a taxi driver or a babysitter—if the worker cannot easily cash it or use it for food, all opinions agree that paying by check does not fulfill “Biyomo Titen Secharo” and may even transgress “Bal Talin.”
Regarding postdated checks, some Poskim argue that while they are not considered cash, they are nevertheless still considered shaveh kesef since it does have some value even now, and therefore if the worker accepts it, the employer fulfills the mitzvah. However, in cases of rental payments for equipment or housing, there is more leniency since these are considered loans, not wages. See further in Sefer Ashrei HaIsh, Choshen Mishpat (36:4-5).
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