BS”D
Question
My daughter is engaged to be married. As soon as she got engaged we rented a chassuna hall and made a down payment. The chassuna hall also does the catering. Moreover, they don’t allow any other caterers to use the hall. Therefore, I carefully chose a hall that had a very reliable hechsher-one that all my guests would feel comfortable eating from. It is now six weeks before the chassuna and the hall abruptly changed hechsherim. Many of my guests do not rely on the new hechsher and I would not have chosen this hall if they had had this hechsher at the time we rented the hall. What can I do now? First, may I cancel my order? According to the agreement which we signed if I cancel at this time I must still pay 25% of the price. Am I bound by the contract? If I cancel my order and take another hall I will have to pay more because the only halls available now – six weeks before the chassuna – are more expensive. Can I force the original hall to pay for this loss?
Answer
Your first question is whether you have the right to cancel your order. The answer is unequivocally yes. If you had not canceled and the hall would have just brought food with the new hechsher you could refuse the food and return it to the caterer because it would be classified as a mekach to’us. Therefore, you can certainly refuse the food at an earlier stage, before it has been delivered.
The ruling that this change is classified as a mekach to’us is based upon a ruling of the Terumas Hadeshen (1, 322). The question of the Terumas Hadeshen concerned a person who ordered better quality meat and received meat of a lower quality. The Terumas Hadeshen ruled that the customer could not cancel the sale even though the meat was of lower quality. However, he adds that if it is known that the customer does not eat the lower quality meat then the customer can void the sale because the halocho respects people’s known idiosyncrasies. Thus, even though most people eat the lower quality meat, if an individual is known not to do so, he can return the meat with the argument that it is a mekach to’us for him.
Moreover, the Minchas Pitim (Commentary to siman 232) adds that even if the customer himself at times eats the lower quality meat, if he bought it to sell to others he can always cancel the sale because he can argue that he needs the higher quality in order to satisfy all his customers. One who makes an affair is similar to one who wishes to sell to others since people want all of their guests to be able to eat at their affairs. Since it is known that some people will not eat from the new hechsher you, the customer, would be able to cancel the sale as a mekach to’us. Therefore, now at an earlier state you can certainly void the sale.
We should note that there are poskim who disagree with the Terumas Hadeshen and rule that any customer – even one who is not known not to eat the lower quality meat – could void the sale. Therefore, everyone agrees that one who buys food for a general crowd, as in your case, can cancel the sale even at delivery with the argument that it is a mekach to’us and he certainly can cancel the sale at an earlier stage.
Thus, you have no problem canceling your order and you are entitled to a full refund from the hall since it is actually the hall that broke the contract and not you.
We should state further that the hall has no right to change hechsherim after taking orders. The proper behavior of a hall that wishes to change hechsherim is to postpone any change of hechsherim to a time when it does not yet have any reservations. Thus, if a hall has no reservations for more than four months from now, it is obligated to postpone the change for four months and serve all its prior customers food with the old hechsher and inform all new customers of the upcoming change. This is because the hall has an obligation to fulfill the terms of the contract. Since when they signed the contract they had hechsher A they are obligated to provide food with hechsher A.
In principle, if somehow it can be done, you can force the hall to provide food with the original hechsher. The reason is because they obligated themselves to do so and they must fulfill their obligation. The Ulam Hamishpot (232, 5) rules even more: in this case since there is a fixable problem with an item that was sold, the seller must fix the item and he cannot tell the customer that he may return the item as a mekach to’us and have his money refunded. Therefore, if there is a way for the hall to serve food with the original hechsher, they are obligated to do so.
Your final question is whether the hall is liable for the difference in price that you need to pay since now you can only find a higher priced hall.
There is such a concept in case of an employment issue. If one contracts a worker to perform a task and the worker backs out of the agreement and the only replacement employees that are available charge more for their services, subject to certain conditions the original employee is liable for the additional amount which the employer is forced to pay.
Therefore, we must ascertain if the agreement you have with the hall is an employment agreement. The agreement with the hall consists of two parts. First, you contracted to use the hall for certain hours on a certain day. This part of the agreement is classified as a rental.
The second part is an agreement to receive prepared food. When one contracts with a caterer to receive prepared food one does not hire the caterer as an employee but contracts to purchase food from the caterer. The reason for this is that the food belongs to the caterer and he has contracted to provide prepared food. If you would have owned the food and the caterer merely had to prepare the food he would be an employee. However, since he owned the food it is classified as a sale (See Ketsos 339, 3 and Nesivos 333, 15). (This was implicit in our answer that the transaction was a mekach to’us.)
If the contract contains a penalty clause (that was executed properly) in case the hall cancels the booking, the hall would be obligated to pay that penalty, since you suffered monetarily. However, since the damages are only causative and indirect, the hall does not have to pay those damages in any case. It only has to pay the penalty, regardless of whether it is slightly more or less than the damages.
If you already incurred expenses that were based on having the chassuna at the first hall, for example, if you already printed invitations listing the first hall that are now unusable, there is a major dispute between the Rambam and Ra’avad (Zechiyo 6, 24) if the hall is liable for those expenses.
In conclusion: The hall acted improperly in changing hashgochos after booking chassunas and you are justified in canceling your booking. You are entitled to a full refund of any amount you paid and are not liable for any penalty. Furthermore, the hall would need to pay the penalty if there are penalties in your contract and you were forced to pay more for a different hall. If you had expenses because you originally rented the hall, there is a dispute if the hall needs to reimburse you.
