Bava Kamma, Chapter 9, Mishnah 4. We continue to discuss the law of an artisan, a craftsman, who damaged the material handed over to him.
"Hanosen tzemer latzaba vehikdichaso yorah, nosen lo demei tzemaro" - one who gives wool to a dyer and the cauldron burned it, he gives him the value of his wool:
A person handed over wool, a raw material, and asked the dyer - who is the artisan in our Mishnah - to dye it properly. In the cauldron, the pot in which the wool is boiled, the wool was burned and ruined. In this case, the artisan must return to the customer the full value of the wool originally given to him.
This Mishnah follows the approach of the previous Mishnah, which introduced the rule that an artisan does not acquire ownership through the improvement of a vessel, and therefore any added value generated by the work belongs to the customer. Since our Mishnah establishes that the customer only receives the value of the wool back, Rashi deduces from here - and so shall we - that there was no improvement in the wool at all. We are not dealing with wool that was improved and subsequently overcooked and ruined, but rather with wool that was burned right from the start, was never fit for use at any stage, and never received any added value.
"Tzevao kha'ur" - if he dyed it poorly:
The word "kha'ur" spelled with an aleph has the same meaning as "kha'ur" spelled with an ayin - something ugly and inferior. Here the dyer indeed followed the instructions: the customer asked for his wool to be dyed blue, and the wool indeed came out blue, except that the artisan used inferior dyes (for example, expired material). It turns out that he was negligent and at fault by not using the proper material, but he fulfilled the actual instruction. His work is poor, and the blame falls on him because he intentionally used inferior materials.
The rule in this law is: the artisan does not profit from not acting properly, but the halachah seeks to minimize the damage - so that the customer does not suffer a monetary loss, and any loss caused by the defective work will fall on the shoulders of the artisan. For this purpose, two factors must be considered:
The Shevach: The improvement in value - the value of the wool after dyeing compared to its value as a raw material.
The Yetziah: The expenses incurred by the artisan. According to most Rishonim, this is not just the raw materials (the cost of the dye, the gas for lighting the fire, and the like), but also the basic labor costs. The artisan does not collect his regular prices, since his work was poor, but rather we calculate how much a simple worker would take per hour for this type of low-quality work.
Let us illustrate this with numbers: the original wool was worth ten. Had the work been done properly, the finished product would be worth one hundred, but since it was done poorly, its value is only fifty. It turns out that the shevach, the improvement in value, is forty. From here, there are two possibilities:
The expenses are less than the improvement: The artisan spent twenty on materials and labor. Ten for the raw material plus twenty for expenses, and the finished product is worth fifty. We allow the artisan to at least cover his expenses: the customer gives him twenty, and the customer can sell the product for fifty and make a small profit.
The expenses are greater than the improvement: The work was so poor that the improvement in value is less than the expenses. The raw material is worth ten, the materials and labor are twenty, while the final product is worth only twenty-five. The customer handed over something worth ten and receives something worth twenty-five, so the improvement is only fifteen. Even though the artisan's expenses were twenty, the customer pays only the fifteen. The customer spent ten on the material and sells for twenty-five, so he breaks even; the artisan earns nothing, but at least does not lose out of pocket, and this is the fair way. The general rule: the financial loss always falls on the artisan who did not do his work faithfully, and not on the customer who bears no responsibility.
And in the words of the Mishnah: "Tzevao kha'ur" - he did inferior work due to his poor decisions; "im hashevach yeser al hayetziah", if the improvement in value is greater than the total expense of materials and labor - "nosen lo es hayetziah", and the artisan receives a reimbursement for the cost of his materials and for the labor costs based on the wage of a worker for this type of work; "ve'im hayetziah yeseirah al hashevach", if the expenses exceed the added value - "nosen lo es hashevach", and those fifteen in the example remain in his hand. It turns out that the customer neither loses nor profits, and the artisan loses a little.
"Litzboa lo adom vetzevao shachor, shachor vetzevao adom" - to dye it red for him and he dyed it black, or black and he dyed it red:
The next case is different: the customer instructed to dye his wool red and the craftsman dyed it black, or he instructed black and the craftsman dyed it red. Here the Tanna'im disagree. According to Rabbi Meir, "nosein lo demei tzamro" - the craftsman must compensate the customer for the value of the raw material as it was originally, returning to him the value of the wool he handed over. Rabbi Meir's reasoning: since he did not act according to the instructions and misappropriated the wool handed over to him, he is a thief who took what is not his. We have already learned in the previous Mishnah that a thief who alters the stolen object - here, taking the raw wool and dyeing it red or black - acquires the object and becomes its owner, and is obligated to pay the value of the stolen item.
The Rishonim debate this point - does he have the status of an actual thief or not:
The Rash and the Bartenura: Their words imply that he is not an absolute thief, since the customer has the option to take the dyed wool if he wishes to keep it. He asked for red and will receive black, paying the full price that was agreed upon. This proves that he is not technically a thief, for with a true thief, the victim cannot force him to return the object, and the thief is allowed to keep it since he acquired it through enhancement.
Tosafos Rabbeinu Peretz: His status is that of an actual thief, and therefore the customer cannot demand the dyed wool, even if he wants it. Rather, he claims from the craftsman the value of the wool he took, as it was at the time of the theft.
Rabbi Yehudah disagrees. In his opinion, this law parallels the previous case: the craftsman is not a thief, but rather he did not follow the instructions properly, and therefore he does not have the upper hand. The customer has the upper hand, and he is the one who profits from the situation. "Im hashevach yeseir al hayetziah" - if the value of the mistakenly dyed wool exceeds the total expenses, "nosein lo es hayetziah" - the craftsman receives reimbursement for his expenses. "Im hayetziah yeseirah al hashevach" - if the expenses for materials and labor are greater than the added value (for example, he asked for red wool which everyone desires and the craftsman dyed it black which has no demand), "nosein lo es hashevach" - the craftsman receives at least the appreciation in the value of the raw material. The result is that the craftsman loses some of his expenses and labor, while the customer does not lose at all but breaks even, since the sale price will cover the raw material, and all the enhancement - the added value - returns to the craftsman.
Halachah: The halachah follows Rabbi Yehudah. The craftsman is not considered a thief; and even if we say that technically he has the status of a thief, as some learn in the opinion of Rabbi Yehudah, we penalize him so that he does not profit easily, and he has the lower hand - receiving the lesser of the two: his expenses or the enhancement he added by doing the work improperly.