We concluded last week’s article that the customer could cancel his order with the caterer since the reason for his cancellation was unforeseen and beyond his control and therefore, constitutes an oness. We neglected to address what happens if the customer paid already: in part or in full.
In this case, the customer would not be able to recover his money because not everyone agrees that this situation can be classified as an oness. The classic type of oness in the Gemara is where someone cannot do something. For example the Gemara (Kesubos 2B) discusses a person who gave a get on the condition that he will not return within a year, and when he tried to return he found that the road was impassable. However, in our situation it is not impossible for the customer to accept the food, which was prepared. It is true that the bris cannot be performed as scheduled, but that doesn’t prevent the customer from accepting the food, and it is his refusal to accept the food which constitutes the act of damage which is classified as garmi. The reason the customer refuses to accept the prepared food is that he would suffer a monetary loss. Therefore there are opinions (Responsa 12 of Rama, Responsa 17 of Beis Meir) that this is not a situation of an oness in garmi. The Yeshu’as Yisroail (12, 5) rules that, since this issue is disputed, neither side can force the other to transfer money. Therefore, while, as we wrote, the caterer cannot force the customer to pay, nevertheless, the customer also cannot force the caterer to return his payment-provided the caterer gives the customer the food he was going to receive for the money that he paid.
