I own a private bus company and, as I do every year, I sold tickets to travel from Yerushalayim to Meron and return on Lag Bo’omer. Travelers must book in advance and pay at the time of booking. After the tragedy, the authorities immediately closed the site and all the buses that had not yet departed did not go. Afterwards various passengers requested that I return their money since we did not provide the service they paid for. Obviously, this is not the typical case since we didn’t cancel the trips ourselves – just the authorities forbade them. Am I required to refund their money?
As always, to reach a decision we must first analyze how each aspect of this situation is classified by the halachah.
The first issue to consider is your relationship with your passengers. Since the passengers paid you money in order to transport them we view you as their employee. The halachah has two types of employee: those that are paid for their time and those that are paid to perform a job, known in the Gemara as a kablan. Since you were paid to perform a task, you are a kablan. While it is true that you contracted to give the passengers a place on your buses, nevertheless, we don’t view the passengers as renters of the bus. Rather, you brought the buses in order to perform your job, just like any worker may bring tools with him to perform his job.
The next issue to examine is how the halachah views your cancellation. Halachah differentiates between cancellations which result from unforeseen circumstances (known as an oness) and those that could have been foreseen. Cancellations that are from circumstances that could have been foreseen are a violation of the original commitment, whereas those that could not have been foreseen do not constitute a violation of the original agreement. They simply were not dealt with in your contract. Since the reason you did not transport them to Meron was due to unforeseen circumstances that were beyond your control, we view your cancellation as resulting from an oness.
The third issue is how to view this oness. Halachah divides the class of oness into two types: those which are a personal oness and those which are a general oness, known as a makkas medino. The Gemara (BM 105 B) discusses a situation where grasshoppers came and ate a significant portion of the crops. The Gemara says that in order to qualify as a makkas medino the grasshoppers must have damaged most of the fields in the particular valley where the field in question was situated.
Even though the Gemara requires that the oness affect a majority of those who are located in a particular geographical location, nevertheless geography is not the critical factor. What is crucial is that the oness should affect the majority of those who belong to the particular group that the particular oness affected. For example, the makkas medino that the Maharam Padua (res 39) discussed was one that affected the Jewish money lenders in Mantova, Italy. While money lenders were not the majority of the Jewish population in Mantova, nevertheless their oness was classified as a makkas medino since the majority of the class of Jewish money lenders suffered from the government’s unforeseen decree.
The rationale for this differentiation is that when an oness befalls an individual or a minority of the group, halachah views the victim(s) as being the one(s) whom Hashem wishes to punish and in that sense he is at fault. However, if the oness befalls a majority of a group, halacha does not view the individual as being blameworthy in any sense, rather he just had the misfortune to belong to the group that Hashem wished to punish. Since the individual is blameless he does not deserve to suffer on account of the oness.
Since the cancellation of buses on Lag Bo’omer affected all of those who transported passengers and all those who wished to travel to Meron on Lag Bo’omer, we view this as a makkas medino.
Thus, we conclude that what you and the passengers did was to cancel an employment agreement because of unforeseen circumstances that affected an entire group and the question is how much money, if any, are you required to refund to your passengers who are your employers due to the cancellation.
The basis for the halacha in this case is a Mordechai (BM 343) who discusses a situation where people had hired private tutors to teach their sons Torah subjects and the local ruler suddenly outlawed teaching Torah to children. The issue was whether the teachers were entitled to be paid their salaries since they could not teach due to the decree which affected all parents and all Torah teachers in town. Based on the above analysis, this case is effectively the same as your situation.
It seems that the ruling of the Mordechai is that the teachers needed to be paid in full. Even if the parents did not pay the teachers before the decree they were still required to pay them and certainly the teachers did not need to return any money they had been paid even though they did not perform any work.
Many poskim found this ruling very difficult because in the case of makkas medino that is discussed by the Gemara where grasshoppers ate part of the crop, the Gemara rules that the renters of the fields were entitled to a reduction in rent due to the makkas medino. Therefore, they question why the Mordechai didn’t rule that the parents, those who “rented” the teachers, are entitled to a reduction in tuition, the parallel to rental payment. This is especially problematic since the Gemoro (BM 77A) rules that if an individual who hired a worker is forced to cancel the work agreement due to an unforeseen oness the employer does not have to pay anything. The example in the Gemara is a field owner who hired someone to plow his field the next day and at night there was an unexpected downpour that prevented the employee from plowing the next day. The ruling of the Gemara is that the workers receive nothing.
The poskim have diverse ways to deal with this ruling of the Mordechai. The Rama (321, 1 and 334, 1 and Darkei Moshe 321) follows the ruling of the Mordechai without addressing the question. The Taz (321, 1) and Maharam Padua (86) also agree with the Mordechai and say the reason is because the employer is the one who is the cause, in the heavenly sense, for the unforeseen circumstance. The Shach (321, 1) also rules that the employees are entitled to full payment but does not address the question.
A second opinion is the Sema (321, 6) who claims that the Mordechai did not rule that the employees must be paid in full but ruled that they must be paid only half. The logic of the Sema is that since the ruler’s decree adversely affected both the employer and the employee, they must share in the loss. The opinion of the Sema is found in the Ra’avan, an early Rishon, but it is clear from the Hagohos Hoshrei (Rosh BM 6, 6) that he understood that the ruling was that the teachers must be paid in full.
The third opinion is of those who either totally reject the ruling of the Mordechai or explain it in a way that it is not relevant to your situation. For example, the Gra (321, 7) rejects the ruling and says he cannot understand it. The Nesivos (334, 1) and the Chinuch Beis Yehudah (res 100) give reasons why the case of the tutors is unique. They agree with the Gra that in general the employer does not need to pay anything.
Summarizing, we learned that your situation is the subject of a major dispute whether you were entitled to receive money from the passengers. Furthermore, the better understood approach is that you were not entitled to any payment whatsoever.
Therefore, on the one hand if there are people who did not pay in advance you certainly will not be able to force them to pay. However, on the other hand it is difficult to force you to return money since there are major poskim who maintain that you need not return any money.
However, we should note that the Chasam Sofer advised employees to return half of the money to those who did not receive any service from them. Furthermore, we should note that this was the situation last year when, due to Covid 19, kindergartens were closed and the consensus of the Rabbonim was that the kindergartens should return half of the amount that they had collected in advance.
Therefore, it would be proper for you to return half the amount you received from passengers who prepaid and in the end received no service from you. Nonetheless, whoever did not pay, need not pay anything.