Shabbat Parashat Ki Tavo 5778

Ask the Rabbi: Paying for Unscheduled Entertainment

Question: I witnessed the following scenario years ago and have wondered about the halacha. During a wedding, a talented entertainer dressed in full costume with remote-controlled dancing puppets burst onto the dance floor.  He gave a performance, which the guests thoroughly enjoyed, for 10 minutes. Each set of parents assumed the other had arranged and paid for the surprise or that it was a guest in disguise. After it was over, the entertainer approached the mechutanim and demanded payment. One of the sides paid, breaking their budget. Did they have to pay? What can we learn from the answer about other cases?

Answer: Since this case is no longer practical, we can discuss more freely both principles, and possible arguments relating to this specific case.

There are two bases for obligation to pay for a service one person provides to another: agreement to pay; payment for neheneh (benefit). One of the major sources about pay for neheneh is the gemara (Bava Metzia 101a), which discusses someone who planted trees in his friend’s field without permission. The gemara concludes that if the field is fit for planting, we estimate how much the work is worth, and if it is not, the worker gets the lower of possible payments. According to Rashi (ad loc.) and the S’ma (375:2), this means the lower between expenses outlaid and benefit provided. In other words, when there is benefit but it was not done in a way that should be appreciated, there is no payment beyond expenses.

There are subjective factors that help determine whether a job was called for. For one, the Rama (Choshen Mishpat 375:4) rules that if the field that was planted was owned by a man who usually does the work himself, the outside help is considered largely uncalled for. Even though most people would appreciate the work, the main benefit is saving the owner from hiring another worker, so when he does his own work, the owner only has to pay for the benefit of not having to toil. In the other direction, according to the Shulchan Aruch (CM 375:3) if the owner “built on” the work that was done, he cannot subsequently claim that he did not gain from it. The Shach (ad loc. 3) cites dissenters. One has to weigh the circumstances in each case.

Let us analyze your case. One could claim that the work was done with the beneficiaries’ knowledge, and therefore they should be responsible. However, this is wrong because their silent acquiescence was based on a misunderstanding, and agreement b’ta’ut does not obligate. The lack of protest could have some significance. There is an opinion that even when a recipient did benefit, he is exempt if he warned that he refuses to pay (see discussion in Pitchei Choshen, Sechirut 8:(64)), and here they at least did not warn.

Should we characterize the performance as fitting, since people enjoyed it, and enjoyment is valued at weddings? I have attended many weddings and am hard-pressed to remember such a performance. Most people pay good money for a band, and participants often do creative shtik, but professional shtik is uncommon in the circles I know, even at weddings at which expense is not a factor. Therefore, it would be difficult for the entertainer to prove that he deserves more than a return of expenses, which are presumably small.

Furthermore, benefit refers to net benefit (e.g., regarding the field, the vegetation planted must be preferable to alternatives). Even if many people enjoyed, others could have been appalled by such a childish performance at a wedding. Also, the time taken on it may have taken away from “valuable” eating, dancing, interacting, etc. time. Therefore, it is again hard to ascertain that there was benefit.

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