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Shabbat Parashat Shelach 5778

Ask the Rabbi: Leaving a Client with Half the Bill

Rav Daniel Mann

Question: A real estate agent (=Shimon) tried to interest my friend (=Reuven) in a project and suggested that they meet over a meal to discuss it. After each ordered a meal and the discussion proceeded, Shimon realized the deal would not materialize. When the waiter brought the bill, Shimon paid only for his own meal. Reuven was annoyed, as he believes it is customary for an agent who invites a potential client to pay. Shimon argued that he never said he was treating and the halacha is that even if one invites someone to his home and does not explicitly tell the guest their meal is free can charge for it (Rama, Choshen Mishpat 246:17). Who is right?

: [We have determined that this question is for halachic curiosity and not to be used to make a claim. This allows us to discuss the matter generally, and to do so less rigorously than if this were a din Torah.]

Shimon was mainly accurate in citing the Rama (based on Terumat Hadeshen I:317), except that even if it is implicitly clear from context that the provider intends to give the food for free, the recipient is exempt. This enables Reuven to claim that common business practice that the professional who is wooing a potential client pays (we take no stand on the veracity) overcomes the standard halachic assumption.

However, two distinctions make things difficult for Reuven. First, in the Rama’s case, the provider has to extract money, which puts some burden of proof on him. In contrast, the restaurant accepted Shimon’s claim that he must pay only his own meal and Reuven for his own. Indeed, if Shimon would have run out, Reuven would have to pay for his own meal without complaints against the restaurant. So, Reuven wants Shimon to reimburse him and therefore has to provide relatively more proof.

More importantly, in the Terumat Hadeshen’s case, there is more room to claim that the provider decided to charge after the food was given. In this case, it sounds that Reuven agrees that Shimon never intended to pay, if Reuven were not interested in the project (just that he is annoyed by it). Putting the indications together, Shimon never obligated himself, even if Reuven thought he did.

Perhaps, though, Shimon caused Reuven damage by causing him to order his meal. On one level, where is the damage? Reuven received a meal that is worth the money he paid! Yet, the concept of d’mei basar b’zol is relevant. This means that when one eats something expensive when he was justified to believe he would not need to pay, he pays only at a discount rate (see Bava Kama 112a). Thus, the difference between that rate and what Reuven paid might count as damage.

Sometimes, one who causes another to spend money based on an assurance which he does not see through, has to pay. One case is when one tells his co-litigant to travel to court and the former does not come; he has to pay for the uncalled-for expenses (Rama, Choshen Mishpat 14:5). However, the restaurant date was not pointless for Reuven. Besides the meal, it had the potential to facilitate great benefit for both Shimon and Reuven (many believe that a good venue for a business meeting is valuable). The fact that it did not work does not retroactively make the effort uncalled for. While this could induce Shimon to pay, it also means that Reuven was not damaged. Although we cannot get into a complete analysis of sources and factors we were not supplied, my experience/intuition lead me to expect that Shimon could not be compelled to pay.

That does not mean that Shimon acted properly. If Shimon was aware that Reuven expected him to pay, and especially if this encouraged Reuven to listen to Shimon’s sales pitch, then Shimon violated g’neivat da’at (deception). The gemara (Chulin 94a) includes in this prohibition relatively innocuous cases in which the deception could cause a party to give something of value due to a favor he thinks he received. There is reason to suspect that Shimon did that. It would be laudable but not required if, as teshuva for g’neivat da’at, Shimon reimbursed Reuven, at least partially.

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