Shabbat Parashat Ki Tavo 5785

P'ninat Mishpat: Return of Down Payment Due to War – part II

Case: The plaintiffs (=pl) ordered catering services by the defendant (=def) for their son’s Shabbat Sheva Berachot (=SSB). The wedding was to take place on Oct. 9, 2023. A party planner (=pp) found and interacted between def and pl, but pl paid def directly a down payment of 7,537 NIS. Due to the war, the wedding was delayed. Pl cancelled the order and demanded that the down payment be returned. Def agreed to give a credit of 7,500 NIS, but only if pl would hire him for an event of at least 23,000 NIS. Due to safety considerations, SSB was moved to Jerusalem, where the hotel did not allow outside catering. Pl tried to get a smaller credit for a smaller event, but def refused. Pl points out that all the other service providers gave a full refund, but def responded that the down payment covers supplies that he already bought and prepared and that pl had him give the food to soldiers.

Ruling: Should pl’s partial payment for the food he did not receive, without the wrongdoing of either side, stand? The type of oness (extenuating circumstance) here (a war) is a makat medina, a problem that affects a broad spectrum of people. The difference between a makat medina and standard oness is that generally we can attribute the oness to the affected individual’s mazal, whereas here the war affected a whole community in the same way.

The Rama (Choshen Mishpat 312:17) rules: “If the whole city burned down, it is a makat medina and [the renter] reduces the rent corresponding to the time he did not live in it, whether he prepaid or not.” The Taz and Shach (to CM 334:1) say that the exemption of the renter due to makat medina applies even when use of the home was interrupted by the need to flee from the city due to a plague (not just when the problem was with the house), and the same applies to wartime restrictions. One explanation is that there is an implied condition that the agreement applies only if it is possible to carry it out. The Machaneh Ephrayim (Sechirut 7) argues that if a renter gave a down payment before the continuation of the rental became impossible, the renter is unable to get the payment back. Other poskim agree with him, and it is unclear if there is a consensus on the matter (see Shut Minchat Asher II, p. 408; Mishpat Hasechirut II, p. 1022). However, in our case the Machaneh Ephrayim probably would award pl a refund because def did not give pl the option of receiving the food. The Aruch Hashulchan (CM 334:2) rules that as long as the one who paid is not at fault, if the worker is a kablan (paid by the job, as def is), he gets the money back. The Netivot Hamishpat (230:1) adds another reason to refund that applies here – when the makat medina prevented any benefit at all, there should not be payment.

In cases of makat medina, our beit din likes to make compromises, because of the existence of different opinions and distinctions. One of the factors that plays a role is whether the government compensates the proprietor on the loss of business, and def confirmed that he received help.

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