Question
I approached a sofer to write a Megillas Esther for me. He quoted a price of 3000 shekels, which I agreed to. At the time of our agreement he had just begun to write it. Now that he has finished, he is asking 4500 shekels, claiming it is much nicer than he originally thought it would be. What is the halacha in this case?
In a follow-up exchange, the questioner clarified that the parchment belonged to the sofer and was included in the price. Furthermore, the megilla is still by the sofer and the customer has not yet paid for the megilla. Thus, the issue is whether the customer can force the sofer to give him the megilla for the original price.
Answer
The first and foremost issue that requires clarification is the relationship between you and the sofer. This is the subject of a major dispute among the poskim.
Some poskim maintain that you and the sofer entered into an employment agreement which contains two components: 1] Sale of the parchment for whatever it is worth, and 2] A work agreement to write for the balance of the three thousand shekels. The second approach is that the sofer is not an employee at all, but rather you and the sofer entered into a sales agreement whereby the sofer committed himself to give you a completed Megillas Esther that was written by him, in exchange for three thousand shekels. The reason this is such a critical issue is that there are different rules that govern these two types of agreements.
There are two primary sources for the second approach. The first is a responsum of the Rosh (104, 6) that is ruled by the Shulchan Aruch (CM 333, 8). The Rosh was asked to decide a case where a person approached a craftsman and asked him to produce something on his behalf that he needed for the next day, at which time he would pay. However, the next day when the craftsman informed the customer that he produced what was ordered, the customer replied that he already acquired it from someone else. The craftsman claimed that he had no other use for the object that he had produced specifically for this customer. The Rosh ruled that the customer was required to pay the craftsman because he caused him a loss.
Many commentaries (e.g. Nesivos 333, 16, Chazon Ish BK 23, 35) are amazed by the Rosh’s reasoning. They say that the Rosh should have said that the reason the customer must pay is because the craftsman did the work he was hired to do, and one must pay his employee and cannot tell the employee to keep what he produced as payment for his work.
The commentaries reply that it is obvious that the Rosh understood that the agreement was not an employment agreement but rather that it was a sales agreement. Since the customer refused to take delivery of the object that was produced on his behalf he was not required to pay for the actual object but only for the loss that was sustained by the craftsman in producing a useless object, based on his commitment to pay.
We should note that determining the Rosh’s reasoning is not merely a theoretical issue but an issue with practical consequences. For example, if one owes the craftsman a salary, as the commentaries think, the worker must be paid with money. But if the customer must pay causative damages, as the Rosh rules, he may be paid with goods.
The second source that maintains that the worker is selling what he produced and not an employee, is a responsum of the Mahara Sassoon (119) concerning a case which is very similar to yours. In his case, a chosson ordered a kesuba from a sofer but then refused to accept the completed kesuba. The Mahara Sasson ruled that since the parchment on which the kesuba was written belonged to the sofer one cannot consider the sofer to be an employee. He explains that the halacha recognizes only two types of employees: those whose pay depends on the amount of time they work and those who are hired to perform a defined task. The sofer in this case clearly was not of the former type since his payment was independent of the time he spent writing the kesuba. The Mahara Sasson argues that he did not fall into the latter classification either because only when one works to improve someone else’s object does he fit into the latter category. Since the sofer’s work improved his own parchment, he cannot be viewed as an employee in any sense. We must, therefore, view the agreement as a sales agreement. He cites as support the previously mentioned responsum of the Rosh.
Thus, the Mahara Sasson clearly maintains that your agreement with your sofer is a sales agreement. It is very important to note that many later poskim including the Ketsos (339, 3), R. Akiva Eiger (notes to CM 339, 6), Aruch Hashulchan (339, 7) and the Chafetz Chaim (Ahavas Chessed 10, footnote 4) all follow the approach of the Mahara Sasson.
The poskim who rule that you did enter into an employment agreement are the previously cited Nesivos and Chazon Ish who disagree with the Mahara Sasson. They maintain that the fact that the parchment belongs to the sofer is not sufficient to determine that the agreement is a sales agreement. Only in a situation, like the responsum of the Rosh, where not only did the craftsman use his own raw materials but also the customer used an expression that indicated that he desired the craftsman to produce the object for himself and that he would then pay for it, do we view the agreement as a sale. Since you did not use such an expression they would rule that the sofer is your employee.
We should note that there are many ramifications of this dispute some of which indicate that unlearned people really view this as a sales agreement and some that indicate that they view it as an employment agreement. For example, suppose the sofer had a fire that was not caused by his negligence and the completed Megillas Esther was destroyed by the fire. If your agreement was an employment agreement you would have to pay him for his work. However, if it is a sales agreement you would not have to pay anything since you did not receive what you ordered. It seems that most people think that you would not have to pay which indicates that people view it as a sales agreement.
However, there are other hypotheticals that indicate that people view the agreement as an employment agreement. For example, suppose in the case of the Rosh that the reason the customer changed his mind is because of an unexpected change in circumstances. If one follows the approach that it is a sale, the customer would not have to pay the craftsman anything since one does not have to pay for damages that he caused unintentionally. However, if it is an employment agreement then the customer would still need to pay since his employee did the work he was hired to perform.
Thus we have established that since your sofer wrote on his own parchment your relationship with your sofer is the subject of a dispute. We must now consider what the approach that it is a sales agreement would say about your question.
If one follows the opinion that your agreement is a sales agreement, your sofer is reneging on his commitment to sell you the megilla he wrote on your behalf for three thousand shekels. However, since the megilla is fully his, you cannot force him to give you the megilla that he wrote in order to fulfill his commitment. The only option at your disposal is to say to the sofer that one who reneges on a commitment is called a mechusar amono-an untrustworthy person. We note that one must not act in such a manner and beis din has the authority to embarrass such a person by publicizing his behavior, but they cannot actually force him to give you the megilla for three thousand shekels.
However, in your situation this option is weak because first of all there is a major dispute whether one who reneges on a commitment because circumstances changed after the agreement was made, is in fact considered a mechusar amono. When the sofer made the agreement he expected to write an ordinary megilla and only at the end he realized that he wrote a much better one than he committed himself to write. Therefore, even though the majority opinion is that one who changes his mind when circumstances change is still called a mechusar amono, there are many opinions that rule that one who does so does not warrant that appellation since he has a good reason for changing his mind. Therefore, beis din will not embarrass one who reneged on his commitment under such circumstances.
Furthermore, in your situation, if what the sofer says is correct that the difference in the market price is so great (50% more), then even those who generally rule that one who reneges on his commitment is called a mechusar amono even when the price changes, agree that since the price change is so great the sofer may change his mind. The reason is because it is obvious that the sofer never intended to forego such a large profit. (See our sefer, Mishpatei Yosher (page 378) where this ruling is discussed in detail.).
The forgoing is not the law if one follows the approach that you made an employment agreement. However, since you are trying to force him to give you the megilla for the original price, he can refuse since his refusal is justified, according to this opinion.
All of the above would not be relevant if you had bought the parchment from the sofer and the sofer wrote on your parchment. This is the general procedure (due to halachic considerations) when one commissions someone to write a sefer Torah on his behalf.
In conclusion: In practice, in this case, you cannot force the sofer to give you the megilla for the original price.
