SALT - Sunday, 21 Shevat 5776 - January 31, 2016

  • Rav David Silverberg

Yesterday, we noted the unique halakha of “be’alav imo” (22:14), which absolves a watchman of liability for the loss or damage of the object entrusted to him if he employs the object’s owner.  If a worker entrusts an object with his employer, the employer does not bear liability for the object.  As we saw, the Shulchan Arukh (C.M. 346:13) rules that this exemption could apply even in the case of a teacher and students.  If a teacher has the authority to determine the curriculum, and the students are bound by his decision, then they are his “employees” with respect to this halakha, and he is absolved of liability if he borrows or is entrusted with their possessions.  And the opposite would be true if the teacher is bound by the students’ decision of which material to study.

Rav Yaakov of Lisa (author of the Netivot Ha-mishpat), in his Mekor Chayim (429:1), observes that education differs from other professions in this regard.  If a worker is hired but given the option of which precise jobs to perform, he is clearly considered an employee with respect to “be’alav imo,” and thus his boss would not bear responsibility for objects the worker lends or entrusts to him.  When it comes to a teacher, however, his status – and that of his students – is determined based on control over the curriculum.

The Mekor Chayim therefore asserts that the Shulchan Arukh’s discussion concerning a teacher and his students applies only when the teacher works voluntarily, and does not receive wages.  If he is paid by the student or students, then he is regarded as the employee with regard to “be’alav imo” irrespective of who determines the curriculum, just like any other hired worker.  It is only if an instructor teaches without pay that his status depends on who enjoys the authority to choose the material.  Since the teacher does not receive wages, he is considered an “employee” only if he had agreed to teach whatever the students choose, and he is considered the “employer” if the agreement was that he chooses the material and the students are bound by his preferences.

The Mekor Chayim’s ruling is yet another reason why the Shulchan Arukh’s ruling would not be applicable in most contemporary educational settings. Yesterday, we noted that it would not apply in most modern-day institutions because the curriculum is decided by neither the teacher nor the students, but rather the administration or school board.  But even if a Rosh Yeshiva is given full authority to decide which material to teach in his yeshiva, it would seem that, in light of the Mekor Chayim’s ruling, he would not be considered the students’ “employer,” as he receives a salary from the yeshiva, and there is thus no employee/employer relationship at all between him and his students.  He is the institution’s employee, and not his students’ employer.