Shabbat Parashat Ki Tisa 5786

P'ninat Mishpat: Unsuccessful Transfer of Yeshiva – part V

Case: The defendant (=def), a non-profit, had run a yeshiva for years and did not want to continue due to financial and educational difficulties. They negotiated with the plaintiff (=pl), another educational non-profit, to have them take over the yeshiva at its location and pay rent to def. A written agreement was signed in June 2022. After starting to enter the educational sphere and preparing, physically and educationally, pl informed the students’ parents soon before the 5783 academic year that pl would close the yeshiva. Pl sued for recovering the expenses they had invested in the yeshiva, which they claimed to have closed because of def’s breach of contract. [We presented this case some time ago. In brief, the ruling exempted def from payment because pl had decided to close the yeshiva because of educational reasons, not the existing breach of contract. We now will deal with two points from the appeal.]

Appeal and Appeal Ruling: Partial Breach of Contract: Appeal claim: Beit din ruled that def breached the contract by making new obligations in regard to fees for renting the building, yet beit din did not obligate def to pay, deciding that they did not breach the contract. That is a contradiction!

Appeal ruling: Had pl decided to continue with the transfer and def had continued to make demands not set out from the outset, pl would have had a good claim, and beit din would have to decide between enforcing the original agreement and nulling the agreement. However, pl decided to close before the rental period even began, and it is clear from many indications (ed. note – beyond our space limitations) that it was not out of fear of the rental conditions but for fundamental reasons unrelated to any breach of agreement on def’s side. In a relationship between parties to a broad agreement, the existence of an isolated or an attempted breach or breach of contract is not grounds to undo the whole agreement. In this case, a demand of money not yet due, when there was still time to work out the issue, is not a fatal breach of contract, requiring penalizing the potential breacher. Therefore, beit din was correct.  

Granting a Problematic Witness Outsized Prominence: Appeal claim: In an important matter, beit din relied exclusively on the testimony of pl’s fired director, even though he was only one witness and had enmity toward pl.

Appeal ruling: The original beit din ruled like the Shulchan Aruch (Choshen Mishpat 33:1) that an “enemy” of the litigant is valid to testify. Beit din also analyzed the testimony’s content and found it credible. The Rambam (Sanhedrin 24:1) empowers a dayan to rule based on what he becomes convinced of even if it does conform to the rules of witnesses. Admittedly, he discouraged using this practically because it is rare that a beit din can presume that ability. While is limitation is accepted, the Rama (Shut 33), the Tumim (90:14), and the Pitchei Teshuva (CM 15:9) allow for limited use of the concept. Consider also that beit din did not rely on the testimony alone. Beit din has the right to decide how much weight to give the witness as a person and based on content. This is especially so in a case like this, where it was done to deflect an attempt to extract money from a defendant.

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