Parshas Naso (Bamidbar in Chutz Lo’oretz) A Caterer Changed the Menu
Question
I recently made a chasuna. Long before the chasuna my wife sat down with the caterer and they decided together on a very specific menu. Based on the menu the caterer gave us a price, which we paid before the chasuna. To our great surprise, the caterer served food that was not as expensive as the menu we had ordered. After the affair we spoke to the caterer and asked him to refund part of the money since he had saved money by serving cheaper food.
We were taken aback by his response. He argued that the food was tasty and no one complained about the food, so we got what we needed and were not entitled to any refund. Who is correct?
Answer
The first point which needs clarification is how to view, from a halachic perspective, the relationship between you and the caterer. The consensus of the poskim (See for example Mishpat Shlomo volume 2) is that the caterer was not your employee, but someone who sold you portions. The reason is that the caterer used his own materials and, furthermore, quoted a price based on the number of portions you ordered.
Even if he had just used his own food etc, many poskim (this is the opinion of the Mahara Sassoon (response 119), brought by Ketsos 339, 3) would have ruled that he was selling portions. However, even those who rule that he is not automatically classified as a seller of portions for using his own food, agree that if he also uses an expression which indicates that there is a sale, we classify what transpired as a sale. This condition is necessary according to the Nesivos (333, 15) and Chazon Ish. When a caterer bases his price on the amount of portions you order, he is showing that it is a sale.
Having established that your contract was a sales contract, we must examine how the halacha views a sales agreement which called for delivery of product A, and product B was delivered instead. This question is addressed by the Mishna (Bava Basra 83B). The Mishna rules that if a contract was for red wheat and instead white wheat was delivered, the sale is classified as a mekach to’us and thus both the seller and the buyer can void the sale. The Rashbam explains that the reason is that red wheat and white wheat are non-interchangeable products since some people want this type and some the other type. Therefore, the Mishna rules that the sale is invalid and both the seller and customer can cancel the sale. Therefore, since you received a different product from what you ordered your sale was a mekach to’us and you could have refused to accept the portions which the caterer delivered.
The next issue is how to consider the fact that you did not refuse the meals which were brought, and knowingly allowed the wrong meals to be served in place of the ones you ordered. It would seem that mekach to’us is something one must claim immediately, and failure to do so invalidates further claims of mekach to’us. This is true (See Choshen Mishpot 232, 3) if the customer had no problem refusing the replacement product. We interpret the behavior of a customer who could have refused to accept delivery and yet chose to ignore this right, as acquiescence on the customer’s part to the second product.
However, your case is different (See Nesivos 232, 1) because you did not really have the option to refuse product B since you needed to serve something at the chasuna and serving product B was better than serving nothing. Therefore, acceptance of product B does not indicate a waiver on your part of your right to claim mekach to’us and you can still invoke the claim of mekach to’us.
The final issue is how much you have to pay for the food that you used. Certainly the caterer’s claim that you have to pay the original price is wrong because we are dealing with a mekach to’us. Thus, your contract does not obligate you to pay what you agreed to pay for a different product.
Thus what really happened is that you served food with the consent of the owner without having ever made an agreement and the question is how much to pay for it. The amount one must pay in cases where one used something with permission but without agreement, is the value of the benefit that the recipient derived from what he used. (This is similar to the Ketsos 246, 2.)
This has various ramifications. The most obvious one is that you do not have to pay the original price. Moreover, you do not necessarily have to pay the price which this particular caterer usually charges for the particular menu he served. If other caterers who deliver a similar quality product charge less than he, you are only required to pay the lower price which they charge since you could have gotten it from them. Furthermore, if there are other foods which could be used interchangeably with those which he served, but cost even less, you are only required to pay the cost of the lower-cost substitute.
This is similar to the case which is discussed in the Gemara (Bava Kama 20A) of an animal which ate barley which was situated in the public thoroughfare. The Gemara says that since the animal’s owner is only obligated to pay for the benefit, which he derived, he must pay only the price of hay since he could have fed his animal hay. This is according to the opinion which is ruled by the Shulchan Aruch (391, 8). (The Rama follows the other opinion that is brought in the Gemara, but in our case there generally won’t be any practical difference.)
Another practical difference is that you only have to pay for the actual portions which were used. Caterers generally charge for what one orders whether it was eaten or not. However, here since you didn’t order anything that was actually served, you will only need to pay for the portions that were served.
