Shabbat Parashat Vayikra 5781

P'ninat Mishpat: Refund for Bar Mitzva Cancelled Due to Covid – part II

Case: The plaintiffs (=pl) signed with the defendant (=def) in Nov. 2019 to make a bar mitzva party for their son in June 2020, with def providing a hall and food for 200 people. Pl gave a non-refundable 3,000 NIS down payment. In April 2020, during the first Corona lockdown, pl demanded a return of the down payment; def refused. As the time approached, def did not present plans to hold the party, and pl arranged a party in a makeshift location. Two days before the bar mitzva, as restrictions were easing, an employee of def called pl to discuss rescheduling the bar mitzva, which pl was not interested in. Pl claim that since they received no benefit from def and the pandemic was something that precluded everyone from making such parties, they should receive their money back. Additionally, def did not work to arrange a smaller affair outside. Def argues that since he could not have made a party as planned and the money was given before signs of the pandemic existed, the non-refundable down payment need not be returned. He claims that almost all of his customers agreed to reschedule.

Ruling: We saw last time that in a standard case of pandemic-caused cancellation, the customer gets his down payment back.

Does def’s claimed offer of an alternative make a difference? Def admitted to not having offered to do the event outside on time, which was then a possibility. He implied that he did not look for alternatives because pl asked repeatedly for a refund. In any case, pl did not have to accept a different type of event than that which was agreed to, including by changing the date (pl claims doing it on the exact birthday was important to them).

The contract states that the “down payment will not be returned in any case, including mourning.” Generally explicit agreements change the regular rules, but here it is not so for a few reasons, all connected to the idea of following the sides’ intentions. First, if we take the language of the contract literally, then even if def decided not to do the bar mitzva, he would not have to return the down payment, which is inconceivable. Rather, it refers to pl backing out, no matter their reason, and this indeed is what all the examples given in the subsequent lines relate to, including death of a relative. This should not extend to cancellations due to an external factor affecting both sides. Also, when conditions are made, they do not apply to extraordinarily rare cases (see Shulchan Aruch, Even Haezer 144:1 and Taz ad loc.) That is because those making the agreement did not have such cases in mind. Certainly, a virus that has caused Israel to close all halls has not happened in many decades.

Sometimes in cases like this (makkat medina), batei din employ compromise as suggested by the Chatam Sofer. In this case, we have decided not to do so for several reasons, including: 1) neither side wants compromise; 2) the Chatam Sofer discussed a case of an ongoing relationship, whereas here def never ended up providing anything for pl; 3) we think def could have done more to accommodate pl. Therefore, def must return the whole deposit.

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