Paying for Unused Articles by Freelance Writers and Journalists

Paying for Unused Articles by Freelance Writers and Journalists Rav Chaim Weg June 10, 2020 Case: A freelance writer was approached by several editors of a publication prior to the spread of Covid-19 to write some time-sensitive articles, such as spending Yom Tov in hotels, issues of safety during Lag B’omer trips, and having small weddings vs. large weddings. However, after these articles were written, the publication could not use them anymore since the subjects were entirely irrelevant due to the restrictions and lockdowns imposed because of Covid-19. Question: Who is responsible to bear the brunt of the financial loss in this case? Must the editors who hired the writer bear the loss and pay the writer the full agreed upon fee, or does the writer bear the loss and not receive payment for his work? Answer: We can analyze this case using the halachic principles of sechirus poalim, employee-employer relations, since the editor hired the writer to write the article. The Shulchan Aruch discusses two general types of models of sechirus poalim. The first one is where the employee is paid by the hour. In this case, if the employee works for a certain number of hours, he must be paid for his work, regardless of whether the employer actually benefits from the work or not. Therefore, the Shulchan Aruch states that even if someone hires another to work on an ownerless field or a field belonging to someone else, he must pay the employee for his labor. The second scenario discussed is that of a kablan, one who is paid by the job. In this context, the Shulchan Aruch (C.M. 333:8) cites the Teshuvos HaRosh that if someone hired a craftsman to build a particular type of kli (utensil) and then says he doesn’t want it anymore, the one who commissioned the craftsman is responsible to pay him (if it can no longer be sold to someone else). It seems that our case would be more similar to a kablan, as the editor commissions the writer to write an article and will pay them by the job. Thus the editor would be chayav to pay if the article is no longer usable at this point in time. Question: If the article has retail value, can the editor tell the writer to search for a different publication in which to publish the article? Answer: This question is subject to a major machlokes of the poskim and depends upon why the one who commissioned the employee is chayav to pay in the case of the craftsman. If it is based upon the regular rules of the employee- employer relationship, then the reason the writer gets paid is because of the work done, and the employer must bear the loss. But the Nesivos holds that the reason the employer must pay in the case of the craftsman is because he indirectly caused damage to the employee, known as garmi. According to his opinion, the writer would indeed be responsible to try to sell the article and see whether he can earn any profit from it. Whatever payment is still missing afterward would then be the responsibility of the editor to pay as compensation for the loss caused. We should also point out that if there is an accepted practice in the field, the halacha would follow that practice. Therefore, where the accepted practice is that if the article is not published, the publisher pays a 50% fee, called a “kill fee,” then the editor would be obligated to pay the 50% kill-fee but no more than that. Whose Purell Is it? Rav Chaim Weg June 9, 2020 Question: During the last few months, it has become more common to do shopping for others, such as for elderly neighbors or relatives. In one case, a person went shopping for his elderly neighbor, who gave him cash with which to purchase her products. She requested that he buy Purell for her, among other items, but he discovered upon reaching the store that a limit was imposed of one bottle per customer. The person decided that since he also needed one, he would purchase it for himself. However, he then realized that he had forgotten to bring his own means of payment, and ended up using her cash for the entire purchase (he would pay her back afterwards). The question is who actually owns the Purell according to the halacha – the person who went shopping, since he bought it for himself, or the elderly neighbor, since her money was used? Answer: According to the Torah, there is a concept known as shaliach adam k’moso, whatever is done by a person’s agent is considered as if he had done so himself. Thus, in this case, if the meshale’ach (sender) requests that the shaliach (agent) go to the store on her behalf, the moment that the shaliach picks up an item and makes a kinyan (acquisition) on it, it belongs to the meshale’ach immediately thereafter. However, in this case the shaliach clearly indicated that he no longer wanted to serve as a shaliach, but instead wished to purchase it for himself. Therefore,if he had bought the Purell with his own money, it would certainly belong to him. But since in this case he used the money of the meshale’ach, most poskim hold that the Purell enters the possession of the owner of the money that was used to pay for it. Consequently, the Purell should in fact belong to the elderly neighbor, as the shaliach was using her money. Question: Is it clear that a kinyan kesef was indeed the method of halachic acquisition? What type of kinyan indeed do we use practically when purchasing products in the store? Answer: Some poskim suggest that when one lifts a product off the shelf, it is considered a kinyan meshichah (pulling) or hagbaha (raising up). If so, then the kinyan would be effectuated before the product was actually purchased with the money, and in this case it would belong to the shaliach. But most poskim hold that the store does not transfer ownership of the product to the consumer until after one pays for it. According to this more widely accepted approach, the kinyan used would be that of the purchase money, thus in our case, the Purell would belong to the elderly neighbor, since her money was used. It should be noted though that the halacha may differentiate between a case where the owner of the store is Jewish (where the above considerations would apply) and where the owner is non-Jewish. Business Competition During Covid-19 Rav Chaim Weg June 8, 2020 Question: Someone has been selling masks in his development for the last several weeks. He now discovers that his neighbor is beginning to sell masks as well, and he feels that this will impact negatively on his sales. Does he have the halachic right to prevent his neighbor from selling them due to the prohibition of hasagas gevul (unfair business competition)? Answer: In order to answer this question, we first need to review a few key points about business competition according to the halacha. The Shulchan Aruch (C.M. 156:5) rules based on the Gemara in (Bava Basra 21b) that two individuals in the same city may compete with each other for the same business market. Therefore, it is permitted for one resident of the city to open a business even though the same business already exists in the city, as both have the right to run a business in their city. However, a number of poskim, including the Rema, Chasam Sofer (both cited in the Pischei Teshuva there), and Rav Moshe Feinstein (Igros Moshe, C.M. 1:38) rule that the aforementioned rule applies only where there is enough business for both, and the existence of the second will not force the first to close completely despite the negative impact upon its revenue. But if there is insufficient business to support both, and the first will be forced to close, then the second one may not open, and the Beis Din must force it to close. If the first business owner can earn some profit following the opening of the second business but not sufficient profit to earn a decent living, it is still considered to be causing the first to close. Thus, even in such a case, the second would not be allowed to remain open. Selling masks, though, would inevitably be considered an extra dimension of the business, as no one was selling masks until recently in this part of the world, and one cannot earn a living from that alone. It would therefore likely not be a case where both cannot make a profit, but rather be treated as a case where both are attempting to earn additional profit. Accordingly, it should be permitted for the neighbor to sell masks as well. Question: Does it make a difference if the neighbor is selling masks at a lower price or selling a different type of mask? Answer: It seems from the Shulchan Aruch that competition is always permitted if the second business sells a different product than the first, even if it will cause the first business to close. In addition, if the second business sells the same product for a significantly cheaper price, it is always permitted for it to remain open. However, if the second sells the same product for only slightly cheaper than the first, it is a machlokes whether the second may remain open if his business renders the first business non-viable.

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