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Shabbat Parashat Shoftim 5778

P'ninat Mishpat: Ending Payment for Child Care Center

(based on ruling 70060 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl) enrolled her daughter at the child care center of the defendant (=def), an NPO, starting from February 23. She paid 180 shekels for registration and was asked to leave checks until the end of the summer of 697 shekels each, including for February, even though, she claims, it was agreed she would pay for February only for two weeks. On April 7, pl decided to move her daughter to a center that is closer to her house. Pl received a refund for May and on, but not for the parts of April and February that she did not use. Pl calculates that this comes to 882 shekels, which she is claiming. Def says that if their manager promised that pl would pay only according to the percentage of the month that her daughter was enrolled, then they would return the money. (It is not clear if def and pl signed on the agreement provided by the Department of Commerce, which supervises child care centers). Def considers it illogical to return for part of the month of February if pl already gave a check at the time for the whole month. Pl responds that she was told that one gives a check in full but that there is an accounting at the end. The manager testified that she does not remember whether or not she told pl that her payment would be proportional to the month. 


Ruling: While the Department of Commerce has suggestions about the rules of payment for child care facilities, which does not mandate full return of payment, they do leave it up to the sides to agree, and our research on the matter shows that this is indeed the case. Although def is an NPO which is supported by donations, its managers have the authority to waive some of the financial rights it has coming to them (see Rama, Choshen Mishpat 2:1 and Pitchei Teshuva ibid. 4).

In this case, pl is making a claim of bari (certainty) that she was promised a return of the money beyond the proportional part of usage, whereas def’s claim of not having to return it is shema (doubtful). Since the money is in def’s possession, they would normally not be required to pay (Shulchan Aruch, CM 75:9). However, they would have a “chiyuv latzet y’dei shamayim” (moral obligation) because of the existence of bari and shema. This obligation should play a role in beit din’s decision in a case like this in which the sides requested to know what the correct thing to do is.

Regarding February, it is very logical that a family which was getting started at def would be given a break and would not have to pay for a whole month when they started on the 23rd. It is noteworthy that pl did not ask for a fully proportional payment for February, but says they agreed on two weeks. This is not only credible but is fair.

Therefore, def should return the payment for half of February. In April, pl has in her favor only the matter of bari vs. shema, and therefore she deserves back only for two out of the three weeks she is requesting. Therefore, in total, def should return to pl payment for one month (697 shekels).

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