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Shabbat Parashat Shemini | 5769

Pninat Mishpat: Refund for a Student Kicked Out of Yeshiva

(based on Halacha Psuka 56)


Case: A student was expelled from a yeshiva (=def) soon after the year’s half-way point for failure to attend classes and davening consistently, after he and his father (=pl) were warned. Pl wants the yeshiva to return the year’s tuition, as they did failed in teaching his son, or at least for the half year after he was expelled. Def responds that the contract stated that tuition would not be returned if the student left and that at an established yeshiva which uses this clause applies it even if a student is kicked out. Def did not fail in teaching the student, who is to blame for insufficient effort.

Ruling: A school may decide that a student is no longer suitable for their institution. Their lack of success at motivating him need not indicate that their efforts were flawed. Pl did not begin claiming that def was negligent until his son was asked to leave.

The contract’s clause regarding denying refunds can be understood to refer only to voluntary leaving or possibly even to removal by the yeshiva. Beit din prefers pl’s reading on both linguistic grounds and because, if def’s reading is accepted, it would give def unreasonable power. After all, def was already allowed to kick out the student based on reasonable but not compelling grounds. To be able, in that case, to keep the entire tuition as well is unreasonable. Another institution’s use of such a policy is irrelevant; the two sides to an agreement must agree to such a clause. The Shulchan Aruch (Choshen Mishpat 215:8) says that regarding terms of negotiation, we follow the common meaning of the people of the place. Regarding ambiguous language, it should be assumed that pl did not agree to grant def unreasonable power.

Once we assume that the contract does not mandate def keeping full tuition, let us examine if according to halacha they deserve it. The Shulchan Aruch (CM 334:1) rules that if one hires someone to do a job and the possibility to complete the job disappears, the worker is not entitled to pay unless it was only the employer’s fault for not anticipating the work stoppage. In our case, the employer (pl) should not have to pay for the part of the work that was not completed. Yet, we should analyze the halacha’s rationale. The S’ma (334:3) says that since we are uncertain who should be held responsible, the employer is exempt because he is in possession of the money. The Gra (334:5) says that the employer is held responsible because he should have made a stipulation regarding work stoppage. According to the S’ma, if the employer already paid (as pl did) he does not get reimbursed out of doubt. According to the Gra, the worker has to return the money.

The majority rule is that since def could conceivably have kept the student, it was their (legitimate) decision to stop the work. Therefore, they should not get paid for work they did not do and should return half a year’s tuition.

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This edition of Hemdat Yamim is dedicated to the memory of

R ' Meir ben Yechezkel Shraga  Brachfeld



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Les & Ethel Sutker
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in loving memory of
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