246.pdf (1.37 mb)
Promises, Protexia, & Hedging
Mordy and Mindi Martin requested that Morah Riki reserve a spot for their three-year old Moishe. Morah eagerly anticipated Moishe’s smile and gladly reserved a spot for him.
Three weeks before the onset of the new school year, Mordy unexpectedly received a great job offer in Chicago, Illinois.
Mordy and Mindi decided that the opportunity to move was ripe. As their apartment on Rechov Sorotskin was in high-demand, their landlord did not mind them terminating their lease, but simply requested that the Martins take care of finding the new tenant. Within minutes after announcing their decision, a long list of interested parties formed. Mordy told Chaim – that as his Chavrusa, he gets “first dibs on the apartment”.
Two weeks later, Mordy’s sister became engaged and announced her plan to move to Israel. With apartments hard to come by, it seemed only natural for Mordy’s sister to take over Mordy’s apartment. Mordy’s parents voiced their feelings quite vociferously. But Mordy told Chaim that he has first dibs???
Mindi, a certified nurse, now begins to pursue employment in Chicago, sending out her resume to numerous clinics. Chicago Kosher Clinic offers her a job and they need an answer in two days. Meanwhile, Mindi is waiting for a reply from Chicago Healing, which offered a higher wage and more vacation days, an offer that Kosher Clinic couldn’t beat.
But Mindi is afraid to let the Kosher Clinic offer pass through her fingers, lest Chicago Healing fall through, so she hedges and tells Kosher Clinic that she is interested…but she knows that should Chicago Healing give her a yes, she’s rescinding on her verbal pledge to work for Kosher Clinic. But if she is straightforward with Kosher Clinic from the onset, maybe they won’t give her shot.
What about their verbal commitment to Morah Riki?
What should the Martins do?
May Mindi hedge?
What’s the Halacha?
The Martins may break their commitment to Morah Rikki, but if Morah Rikki lost potential clients, they will have to compensate her for her loss. (See detailed Explanation).
They may break their commitment to Chaim, but should try to explain the situation to him and get him to forgive them for backing out.
Mindy may hedge without being forthcoming because Kosher Clinic understands that when people search for a job, their verbal commitments do not mean that they are 100% ready to commit and Kosher Clinic should anticipate that if Mindy finds a better working condition, she will probably back out.
Promises, Protexia, & Hedging invokes the following Halachos.
Rescinding from a verbal commitment can engender one, some or all of the following (1) breach of trust between persons (2) a sin against G-d (3) a sin against oneself.
Biblical Positive Commandment
At the time that one makes a verbal commitment, he/she must be fully serious about fulfilling the commitment. By making a half-hearted commitment, one transgresses the commandment of
מֹאזְנֵי צֶדֶק אַבְנֵי צֶדֶק אֵיפַת צֶדֶק וְהִין צֶדֶק יִהְיֶה לָכֶם אֲנִי יְ-ה-וָ-ה אֱלֹהֵ-יכֶם אֲשֶׁר הוֹצֵאתִי אֶתְכֶם מֵאֶרֶץ מִצְרָיִם [ויקרא יט לו].
Which means that when you say hein, “yes”, it should be tzedek, just, you should mean it!
The Poskim however explain that this is true, so long as the message that you are conveying is indeed yes.
Even if the promissor was fully committed at the time of the commitment, may he/she subsequently rescind?
שְׁאֵרִית יִשְׂרָאֵל לֹא יַעֲשׂוּ עַוְלָה וְלֹא יְדַבְּרוּ כָזָב וְלֹא יִמָּצֵא בְּפִיהֶם לְשׁוֹן תַּרְמִית וגו' (צפניה ג')
The Jews who remain do not act evil nor do they speak deceptively and there is not found in their mouths devious tongues.
A promissor transgresses a prohibition from the prophets for rescinding on a verbal commitment, when the “promised” relied on the words of the promisor. The promisor is called an untrustworthy person and the promised has the right to call him a rasha. He broke his counterpart’s trust [Beis Yosef Yoreh Deah 264].
Examples include 1) a reasonable promise by an individual [Choshen Mishpat 204: 8], 2) even a large promise by a community [Choshen Mishpat 204: 9, Nesivos], 3) an unreasonable promise to a child who thinks that it is reasonable (Be careful about telling your two-year old that you’ll take him to the moon!)
וְאִישׁ בְּרֵעֵהוּ יְהָתֵלּוּ וֶאֱמֶת לֹא יְדַבֵּרוּ לִמְּדוּ לְשׁוֹנָם דַּבֶּר שֶׁקֶר הַעֲוֵה נִלְאוּ. (ירמיהו ט: ד)
Adults must consider an additional prohibition that can be transgressed when not fulfilling a commitment to a child.
A person may not promise a gift to a child and not fulfill his promise lest he train the child to lie. Yirmiyahu Hanavi exhorts the Jews for having trained their children to speak untruths [Maseches Succah 46b].
[Note: A 4th example includes even an unreasonable promise to give a tzedaka-worthy individual. A verbal commitment to Tzedaka is legally binding. A promise to a poor person could constitute Tzedaka.]
In contrast, when the promised did not rely on the promisor’s verbal commitment; generally, the promissor does not transgress the rabbinical prohibition of being an untrustworthy individual. The promised cannot call him a rasha for rescinding. He did not break his counterpart’s trust.
However, a G-d fearing person should take care to keep his commitment even if the promised did not rely on his word. Rescinding even from an unexpressed commitment is a lack of perfection of his middas ha’emes towards which a G-d fearing person must strive to attain.
Extreme levels of bracha are in store for one who strives to appropriately perfect his/her middas ha’emes when Halacha so warrants. (There are times when Halacha requires that middas ha’emes bend in deference to other middos, like propriety and peace [Menoras HaMaor, 2:1].)
Disgracing G-d’s Name
Moreover, when rescinding will create a Chillul Hashem, the promisor commits a grave almost unforgivable sin for rescinding (מיתה בידי שמים) [Sha’arei Teshuva 3: 114].
Unforeseeable Drastic Circumstance Change
Is it always forbidden to rescind a reasonable commitment? What if the situations subsequently unforeseeably change so drastically that under such circumstances it is clear that the promisor would not have committed? Is the promisor still bound by his/her original verbal pledge? In halachic terminology this phenomenon is called trei tarei, two market rates or a sudden drastic change in market rate, situations…
There are two opinions which traces itself back through the ages.
The lineup looks like this:
Unforeseeable Drastic Circumstance Change
בעל המאור, רא"ש, טור, בעל העיטור, תלמידי הרשב"א, חכם גדול אחיו, סמ"ע, גר"א עפ"י ירושלמי, ט"ז, חתם סופר, ערוך השלחן, שבט הלוי
not forbidden to rescind
רש"י, רבינו יונה, ר"ן בדברי רשב"א, רבינו ירוחם ראב"ד, מגיד משנה, תוס', בית יוסף, רמ"א, קיצור שו"ע
forbidden to rescind
Aruch Hashulchan determines that the strict Halacha is that the committer may rescind. It is a middas Chassidus though, not to do so.
Thus, if an unforeseeable drastic circumstances change, one cannot hold it against a promissor for rescinding his/her verbal commitment.
Yet, because of the strong argument to the contrary, many Poskim will leave it to the petitioner to choose whether he/she wants to keep to the original commitment or take the liberty to back out under the new unexpected drastic altered circumstance.
If the Work is no longer necessary
There is a more extreme level than the situation changing drastically whereby under the new conditions, the promise would not have been made.
Sometimes the situation changes so drastically that the verbally agreed upon work is completely unnecessary.
Under such circumstances, provided that there is no real financial loss to the other party, the verbal committer may back out even according to Rema [Ketzos Hachoshen Choshen Mishpat 333].
Rebbe Tavos would not rescind on his word even if you were to give him all of the riches in the world [Maseches Bava Metzia 49b].
[As with all middas hachassidus, behaviors, one must take into consideration the collateral results of one’s choice of action before deciding whether it is appropriate to follow the middas hachassidus approach in this particular situation.]
Financial Liability for Cancelling Verbal Employment Commitment
Objectively, an employer does not need to pay for services he/she did not receive [Choshen Mishpat 333:1].
However, when an employer makes a verbal commitment promising a position to a potential employee, the employee relies upon the word of the employer.
More than simply hoping to earn money, the employee may have turned down alternative employment. Instead, it may be too late to seek other employment. Consequently, by breaching the verbal commitment, at times, an employer can cause the employee a financial loss.
The employer is liable to pay for the financial damage he/she causes by cancelling the employment. (You pay for a loss!) [Choshen Mishpat 333:1].
Nevertheless, if an unforeseen circumstance occurs, which renders a job unnecessary, an employer may cancel or terminate the work agreement, generally without liability even if the employee suffers a loss.
Why? A) No service was received B) The employer was not negligent [Choshen Mishpat 333: 2].
Similarly, if both the employer and employee or, only the employee had reason to anticipate a particular circumstance which would render the job unnecessary, the employer may cancel the agreement without liability.
Why? A) No service was received! B) The employer was not negligent [Choshen Mishpat 333: 2].
A yes must be a yes.
Can you hedge then?
When your counterpart believed that your yes was a yes, then your yes must be a yes.
Thus, Dayan Chaim Kohn told me that generally, nowadays potential employers do not responsibly rely on a verbal commitment. They are aware of the complexities that life brings and that it is far from uncommon that issues or circumstances arise that commitments are not upheld.
Similarly, one should expect that an Anglo-Saxon expatriate in EY, might have to consider returning to the diaspora for a myriad of reasons. As such, hedging under these circumstances would be permitted.
Mindy and Mordy’s situation changed so drastically that were they to relocate, Morah Miri’s services are completely unnecessary.
Additionally, as the Martins are of Anglo-Saxon background, Morah Miri had to anticipate that situations may warrant that they suddenly decide to relocate and did not completely rely on their verbal commitment.
Thus, if the Martins choose to relocate and rescind on their verbal commitment, they cannot be stopped. However, as this is not an “accident” but rather a result of a decision that the Martins made to relocate, they would be required to compensate Morah Miri for the losses she incurred by relying on their word.
For example, if she ordered extra materials, or turned down another child, or did not bother seeking another one to fill Moishe’s spot and now it is too late to find one to fill his spot – then the Martins would have to compensate her appropriately. (Note, if she is willing to forgo part of the tuition money to have less children, then the Martins only need to pay the difference.)
At the time, Mordy really meant what he said that Chaim was first on the list. His yes was a yes. It was a reasonable promise as well. However, Mordy’s sister got engaged and wants to move to EY. An unexpected new circumstance surfaced under which it is clear that he never would have promised Chaim to take the apartment. Thus, he can give it to his sister. However, it is best to explain the situation to Chaim and ask him to forgive him for breaking his trust.
Although one’s yes must be a yes, that is so long that the message that you conveyed was yes! However, so long as in a job searching market, it is understood that a potential employee is looking at multiple possibilities simultaneously, the potential employee may say yes although he/she is hedging for a better option. However, in a situation where a yes is understood as a final commitment, then it would be forbidden to hedge.