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Money Back for Food that Never Came

My wife called up a local Kosher Take out food restaurant which is located inside of the local big chain grocery store to order some food for Shabbos. She placed the order and paid by credit card. The person taking the order said that the order would be ready for pick up . She said that she wouldn’t be able to pick up the order but that her husband would much later that day, by which time the Take Out Restuarant would have closed for Shabbos .

The order taker said that they would leave the order on the counter along with the other orders for people who come to pick up after closing. The order would be sealed (to avoid issues of basar sh’nisalam min hayin) and would have the customer’s name on it.

I came later that day and while there was one other package on the counter, there was nothing with our name or order there. After Shabbos my wife called and asked what happened to his order. The clerk said that the order was filled and left out as agreed. She asked for a refund but the store manager said that there was no refund coming as they had fulfilled their part of the contract and it was her responsibility to come and pick up the order during store hours. The fact that the package was left on the counter was done as a convenience but the store’s obligation ended after the order was filled.

I claim that since he never picked up the order it remained the store’s responsibility to place the order in a secure spot or to have told us that we must accept responsibility for the order even though we never took possession. What is the halachah?

Answer:

It appears that the custom will not be able to claim his money back. It is advisable to reach a compromise agreement with the store.

Best wishes.

Sources:

This is a delicate question, due to the apparent misunderstanding between the two parties.

In principle, if it was clear to both parties that the order will be left on the counter, and the store did so based on the customer’s instruction, the customer will not be able to ask for his money back. Although there was no full kinyan made on the order, the case is comparable to somebody who ordered a wedding, and cancelled at the last moment after all preparations had been made. The person who ordered must pay nonetheless, because the caterer did his work based on the order (see Choshen Mishpat   in the Laws of Davanim).

Moreover, it can be suggested that the store was paid for preparing the food and for placing it on the counter as ordered. The fact that the customer never got the food will not give him the right to him money back. This is similar to a grocer who delivers groceries and leaves them outside a customer’s front door. Even if the groceries are now stolen, the customer won’t be able to claim back his money, because the grocer fulfilled the service for which he was paid.

However, in this case the customer is claiming (possibly) that he was not aware of the arrangement of placing the order in an insecure place, and that had he been aware of this he would not have placed the order. It is possible however that the customer should have known — if it was clear that the order will be left for pickup after closing hours, how can the store be expected to keep the order secure? This issue is perhaps contingent on the Sema (beginning of 232) concerning somebody who could have checked a purchase for defects, but failed to do so (according to the Sema he loses his right to void the sale).

The fact that the buyer was not informed about the responsibility is not a valid claim; if the responsibility passes over to the buyer, the fact that he was not informed of this will not affect the halachah.

Because of the considerations above, it appears that the buyer won’t be able to claim back his money, and it is advisable to reach some compromise.

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