Question:
I called a technician to fix an appliance. He spent 45 minutes trying to repair it but was unsuccessful and the problem remained. He now wants payment for the visit. Am I required to pay him according to halacha?
Answer:
This question is subject to discussion among the Poskim and also depends heavily on the accepted custom of the profession.
On the one hand, many sources imply that when a worker is hired to accomplish a task and does not accomplish it, he is not entitled to payment. This is the implication of the Gemara regarding a worker who failed to complete his mission, and is the ruling of the Rama, Maharshdam and others that when the worker’s efforts produced no result, he is not entitled to wages.
On the other hand, a number of Poskim rule that in certain professions one is hired not only for success, but also for the effort, expertise, and attempt. Thus, the Chavos Yair, Machaneh Ephraim, and others write that where the understanding is that the worker is being paid for the endeavor itself, he may be entitled to payment even if he did not achieve the desired result.
Practically, the decisive factor is generally the minhag hamedinah and the understanding between the parties. The article repeatedly concludes that one must examine the custom of the profession and the expectations under which the worker was hired.
Accordingly:
- If it is the accepted custom for technicians to charge a diagnostic or visitation fee regardless of success, or if the technician informed you beforehand that he charges per visit, then he is entitled to payment even if he was unsuccessful.
- If no such custom exists and no such condition was stated, and he failed to repair the item and provided no actual benefit, then according to the strict halacha there is strong basis to exempt payment.
Conclusion:
If the accepted industry custom is to charge per visit, or the technician explicitly stated this in advance, then he may charge even if he did not fix the problem. If there is no such custom and no prior agreement, then according to the strict halacha one may be exempt from paying for an unsuccessful repair attempt. Nevertheless, since respected authorities such as the Chavos Yair and Machaneh Ephraim recognize payment for effort in certain circumstances, each case should be evaluated according to the nature of the profession and the accepted commercial practice.
Civil Law
This conclusion may also be consistent with civil law in many jurisdictions. Courts often distinguish between hiring someone to achieve a result and hiring someone to provide professional services or diagnosis. Accordingly, if technicians customarily charge a service-call or diagnostic fee, or if this was disclosed in advance, a customer may be obligated to pay even if the repair was unsuccessful. Conversely, if the understanding was that payment would be for a successful repair and no such custom or agreement existed, there may be grounds to deny payment. Naturally, the exact outcome depends on local law and industry practice.
Sources:
Shulchan Aruch C.M. 333-335; Michaber and Rama C.M. 264:4; Beis Yosef C.M. 185; Gemara Gittin 54b; Bava Metzia 57b-58a, 76a-77a, 83a; Bava Kama 116a; Tosefta Bava Metzia 7:3; Rambam Hilchos Sechirus 9; Teshuvos HaRashba 1:56; Teshuvos HaRosh 105:1; Maharam Padua 63; Maharshdam C.M. 343 and Y.D. 204; Nesivos Hamishpat 264:3; Chavos Yair 154; Machaneh Ephraim Hilchos Sechirus 23; Be’i Chayei C.M. 220; Pischei Teshuvah 264:1; Aruch Hashulchan 264:6; Dinei Torah article “Sechar Avodah Shelo Tzalcha”; Eretz Chemda-Gazit ruling regarding professional fees and unsuccessful work. Halichos Bein Adam Lechaveiro 10 footnote 157; Mishpitei Chaim 2 335 p. 135