Shabbat Parashat Nitzavim 5785

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

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 def 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 def’s 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, to a hotel that did not allow outside catering. Def claimed that the down payment covers supplies that he already bought and prepared and that pl had him give the food to soldiers, according to pl’s instructions. Pl responded that they said that def could give them the prepared food and pl would give it to soldiers. A clause in the contract called for a return of the down payment in case the event had to be cancelled because of Corona or war, but def says that this is when war makes it impossible to have it, whereas here events could be held with up to 50 people.

Ruling: If it were plausible to read the contract as not allowing for refund in this case, then we would employ the rule that “one who needs the contract has the lower hand” (Shulchan Aruch, Choshen Mishpat 54:5) to say that since pl is trying to use the clause to extract money from def, they cannot do so. However, in this case, it is implausible. The contract states that the minimum number of people at the Shabbat is 80, and the event was described as an SSB. Since more than 50 people could not gather and since the wedding was postponed, the event as ordered is impossible. Therefore, pl have a contractual right to a refund.

While pl agreed to settle for a credit rather than a return of money, there is no indication that pl agreed to the strict conditions def imposed on the refund. Since the two have not agreed on an event that is acceptable to both, that proposal does not erase the right to the refund.

It is still a question whether def can take off for expenses he incurred in providing for pl’s event. If def is seen as working for pl, then he deserves to be paid for the expenses he incurred on pl’s behalf (Rama, CM 91:3). If, though, def was in effect selling food and services, then the expenses he incurred were his own, and this seems the stronger way of viewing the matter. Also, def was asked to provide receipts and detailed claims over what he spent the claimed money on, and what he produced was very unconvincing. Also, pl cancelled a week before the SSB, and although def claimed he cooked a tremendous amount in advance and froze it, this is strange for a high-level caterer to do for a small event. Finally, the videos of def’s feeding the soldiers show him barbequing on the spot, i.e, it wasn’t cooked previously. Therefore, the great majority of def’s defenses were rejected and he had to return almost all of the down payment.

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