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Shabbat Parashat Vayishlach| 5767

Pninat Mishpat

Charging a Travel Agent for Not Keeping a Promise - Based on Piskei Din Rabbaniim- vol. XV, pp. 85-87
Case: A couple flew from Israel to New York. According to them, the travel agent (in Israel) told them that they would be able to extend their stay without charge for up to fifteen days after the return date. They called the airline ten days after their return date to arrange a flight and were charged $520 to do so. The agent responded that the promise was to try to extend the date and that he had instructed the couple to contact the agent in New York to see if he would succeed to extend the ticket, which they failed to do.
Ruling: In one of two circumstances, we would obligate the agent to pay the travelers. One is if the promise of the ability to extend the ticket was a condition of the sale of the ticket. The plaintiffs have not brought any evidence that this promised perk was a condition of the sale. It should also be noted that the price of the ticket does not change if the agent in New York is successful in extending the ticket or not. Therefore, it would not be assumed that the commitment constituted a condition, which could undo the entire transaction.
 The second point that needs to be considered is if the assurance, which prompted the couple to miss their original return flight, constitutes a damage for which compensation can be demanded. In this case, there is no direct, physical damage but causative damage (gerama). As a rule, one cannot extract payment for such damage, unless it reaches a level of severity known as dina d’garmi (Shulchan Aruch, Choshen Mishpat 386:1). The classic example is of a creditor who sells his rights to collect a debt owed to him and then proceeds to exempt the debtor from paying. Tosafot (Bava Batra 22b) says that dina d’garmi applies only when the damage occurs immediately (even if indirectly). The Rosh (Bava Kamma 9:13) says that the damage must be a definite outcome of the damager’s action. The Sha’ar Hamishpat (to Choshen Mishpat 386) says that both of these conditions are pre-requisites of the ability to demand damage payments.
 In our case, neither condition of dina d’garmi is met. Firstly, the plaintiffs admit that at the time of the sale that was accompanied by a promise of the ability to delay, there was a reasonable possibility that indeed the agent in New York would have succeeded in pushing off the return date. For the same reason, there was not a definite damage by the assurance but a possible one. Therefore, the damage that was caused remains as no more than a gerama¸ for which damage payment cannot be demanded.
 In this case, the defendant raised further claims to demonstrate that the plaintiffs had not acted in the proscribed manner, which would have improved their ability to receive an extension. However, as was shown, even if that were not the case, beit din cannot obligate the defendant to pay.
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This edition of
Hemdat Yamim is dedicated to the memory of
R’ Meir ben Yechezkel Shraga Brachfeld o.b.m.
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 in loving memory of Max and Mary Sutker and Louis and Lillian Klein,z”l.
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