Shabbat Parashat Lech Lecha 5781

P'ninat Mishpat: Kippot Under What Conditions?

Case: The plaintiff (=pl) runs a business selling kippot. He sold them periodically in front of the defendant’s (=def) supermarket, in return for allowing def to take five kippot per time. The two decided that def would sell pl’s kippot in his store on consignment. At some point, def became dissatisfied with pl and told pl to take his kippot. When pl came, a disagreement arose whether 17 of the kippot present were his, and the store did not let him take them because def was not present. The sides agree how many kippot pl sent to def. They disagree if def received 30% or 35% of the sales and since in the middle they changed the prices of the kippot, how many were sold at each price. They also disagree whether the 17 kippot count in determining how many were sold. Once, pl sold kippot outside the store after def told him to stop, so def claims pl owes him 5 kippot for that.

Ruling: Neither side has proof about the prices decided upon, so they will be determined based on halachic rules for such cases of doubt. The gemara (Bava Metzia 110a) cites a machloket relating to a landowner and a sharecropper arguing whether the former promised the latter 50% or 33% of the crops. Rav Yehuda says that the landowner is believed, and Rav Nachman says that we follow the standard local percentage used. According to Rav Nachman (and the halacha – Shulchan Aruch, Choshen Mishpat 330:5), the sharecropper can receive more than is admitted even in a case where the landowner would have been believed to claim he was only a hired worker. Without the support of local practice, though, the landowner would win because he is considered the muchzak on his land’s produce. In our case, pl, as owner of the merchandise, is muchzak. It will not help for def to claim he is like one who seizes the object, because the signed delivery order is proof that he received the kippot. However, here the argument is not about the objects but about payment, and on that def is indeed muchzak. On the other hand, since def would have to swear that he didn’t promise pl more, we will award pl a third of the amount of the machloket – he will receive 66.5% of the sales.

Some of the stickers on the kippot list the old price and some list the new price. There is no way to know how many were sold at each price, but it is clear that it was pl who marked them and thus was responsible to have the right price on them. Under these circumstances, we will rule based on compromise that pl will get only a third of the difference between the two prices.

Regarding the 17 kippot, there is no convincing explanation of their origin if not from pl. Considering that pl is trying to extract payment for sold kippot, we will give the kippot to pl and subtract that number from the amount def received in determining how many kippot were sold.

Pl did not formally require def’s permission to sell kippot on the street outside def’s store, and his offer of five kippot per day of sales was a courtesy to avoid conflict. Therefore, since pl’s last day of sales was after the cessation of their cooperation, pl does not have to give def 5 kippot for that day.

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