Question
When my daughter became engaged almost three months ago, I rented a chasuna hall and paid a non-refundable down payment which was two thirds of the full price. Unfortunately, after a month the engagement broke up and I called the hall to cancel and asked them to try to find someone else, which they said they would try to do. Now it turns out that the hall would have been forced to cancel the wedding, since our date was in the time when the government closed all halls. Does that entitle me to a refund since the hall would have had to return part of my down payment even if I had not canceled?
Answer
At first glance, intuition might lead one to think that you should be entitled to the same benefits as one who did not cancel his affair. However, we will see that this is not the case.
A similar situation is discussed in the Yerushalmi (Kiddushin 1, 2). The din of an eved ivri, a Jewish slave who is supposed to work for six years, is that if he is ill for part of the time (up to half) he does not have to make up the time he was ill and he is freed after six years, as originally stipulated. However, if he escaped and was subsequently returned, he must make up all the lost time.
The Yerushalmi raises the question: What is the halocho in case the eved ran away and then became ill? It might seem that the eved can argue that even if he had not run away he would not have worked. However, the Yerushalmi rules that he does have to make up the lost time. The Yerushalmi says that the reason is because we say that perhaps, if the eved had not run away he would not have taken ill. This din of the Yerushalmi is cited by many Rishonim, making it quite authoritative.
The Tosafos Yerushalaim (Choshen Mishpot 333, 5) deduces from here that if an employee quit and then wasn’t able to work due to circumstances beyond his control, we nevertheless place the usual penalties on the worker even though had he not quit, he anyway would not have been capable of working.
It might seem that, following the logic of the Yerushalmi, this din would be true only if the reason he could not continue working is a personal problem like if the worker himself became ill. However if, for example, the reason he was not able to work is because his parent passed away and he had to sit shiva, then he might be entitled to his salary since one can’t say that if the worker hadn’t quit he wouldn’t have had to sit shiva.
However, the poskim do not differentiate between the two cases. For example the Minchas Pitim (333, 5) writes that in any case we impose the penalties on a worker who quits. He explains that the reason is because the penalties are imposed as soon as the worker quit and what transpires later does not change anything.
A similar ruling is given by the Ramo (Responsa 50) in the case of a person who hired a private tutor whom he subsequently fired. The halocho is that one may not fire a worker during the period for which he was hired and if one does so he has to continue paying the worker as if he were still working. The payment has the same rules as the salary of a regular employee. One even has to pay him on time, according to the Chazon Ish. The Ramo ruled that in case one fired his tutor and subsequently he was forced run away from the town, he still needs to pay the tutor even though if he would not have fired him he would have been able to stop paying for the time he was not in town. He also gives as his reason that as soon as the employer fired the teacher he became liable for the entire salary and therefore it is unaffected by his subsequent evacuation from town.
The Sha’ar Mishpot (333, 1) asks on the Ramo that his reason is not the reason given by the Yerushalmi and according to the Yerushalmi the employer is not liable in case he ran away because the case of the Ramo was a makas medino – a general plague – which one cannot attribute to employer and therefore, the employer should be entitled to any discount which is given to any other employer.
It would seem that one can give two answers to the question on the Ramo. First, if one reads the Ramo carefully he is not discussing the case where most people ran away. Rather it is clear that only a minority ran away since he deduces his ruling from a response of the Maharam of Padua (86) which discussed the situation where only a minority ran away. The Maharam wrote explicitly that it was not a makas medino but rather a personal oness.
The second answer that one can give is that the reason given by the Yerushalmi is not the entire reason. The reason to believe so is that we know that in order to make someone pay or to give something (that is, to take something away from someone) we require strong proof. In the case of the servant we are requiring him to keep working for a longer period of time based on an apparently weak reason, i.e. that perhaps the servant wouldn’t have gotten sick had he remained with his master. That is not a certain enough condition to require someone to continue working. Therefore, it seems that the primary reason is, as stated by the Rama and the Minchas Pitim, that the servant acted improperly in running away.
This is similar to an explanation of the Maharit (2, 109) who explains how the Gemara (Bava Metsiyo 106A), on the basis of all kinds of far-fetched justifications, requires a renter to pay in full if he didn’t follow the agreement between him and the owner, even though we are requiring him to pay money. He explains that we only require weak reasons since the real reason is that the renter violated his agreement. This seems to be the explanation for the Ramo and Minchas Pitim in our case as well: that the main reason is that the employer violated his agreement.
Your situation is similar. You canceled your agreement with the hall and based on your contract you immediately forfeited your down payment. As in the other cases, the new situation does not create a new obligation on the owner of the hall to return your down payment.
Also yiush.
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