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Tzav-Caterer who showed up late



We recently made a bas mitzvah party for my daughter.  A hundred guests replied that they would join us and we informed everyone that the meal would begin promptly at seven thirty and arranged with the caterer that he should be prepared at that time to serve a meal.  The caterer arrived late and it was only at a quarter to nine that they were able to serve a meal.  It caused us great embarrassment and some of the guests left because of the delay.  Am I entitled to a reduction in price?


Before answering your question we must determine how Torah law classifies your relationship with the caterer.  One possibility is that he sells you the unprepared food and he is your employee to prepare it for your guests.  The other possibility is that he sells you prepared food and is not your employee at all.  The basic source concerning this issue is a responsum of the Rosh, (cited by the Tur (CM 333) and ruled by Ramo (333, 8)), concerning one who asked a craftsman to prepare something for him and after the craftsman prepared it he refused to accept it since he had already ordered and received it from a different craftsman in the interim.  The Rosh ruled that the craftsman should sell it at whatever price he can (explanation of the Sema and Shach) and the customer who ordered it is liable as garmi for any loss in price that was suffered by the craftsman.

The poskim question why the Rosh only based his determination on the rules of garmi and did not rule that since the craftsman worked at the behest of the one who ordered that he must be paid for his work as an employee.  They answer that he was not an employee.  Rather he had the status of one who was told by a customer that he should prepare an item which the customer would then buy from him.  This explains why the one who ordered the good is only liable on the basis of garmi because he never employed the craftsman and just caused a loss by his refusal to accept the item he ordered.

There is a difference of opinion why he is not viewed as an employee.  The Mahara Sasson (res 119) explains that the reason is because the craftsman was asked to use his own materials to prepare what the customer ordered.  In his view, whenever a person is hired to perform work on his own raw materials the worker is not an employee but an independent worker who was asked by a customer to produce something on his behalf.  The Nesevos and Chazon Ish agree with the Mahara Sasson’s understanding of the Rosh’s decision.  They only disagree with the generalization of the Mahara Sasson and maintain that it is necessary to consider the expressions used by the one who ordered the work.  They maintain that only if the expression used by the customer indicates that he intended to purchase the finished product do we classify the arrangement as a sale.

In your particular case where the caterer charged you a price per meal the poskim (see Mishpat Shlomo volume 2) maintain that even the Nesevos and Chazon Ish would consider your arrangement as a sale.

Having clarified that the caterer was selling you portions, we have to consider how the caterer’s delay impacts your original agreement.

Since your agreement was to buy portions that would be ready at seven thirty, when the caterer failed to show up at seven thirty, he violated an essential clause in your agreement.  Since time was an essential condition in your agreement, you were free to void your agreement and bring in a different caterer or do something else like one can do whenever an essential clause in an agreement is violated by the other party (The Gemoro (Kiddushin 62A) derives this principle from Moshe’s agreement with the tribes of Reuvain and Gad to grant them land on the east side of the Jordan River in return for their joining the battle for the lands west of the Jordan. ).

The status of a sale where an essential clause has been violated is that it is considered a mekach to’us and the laws governing the status of such a sale are the laws of mekach to’us.  The only difference between this case and the usual case of mekach to’us is that in the usual case an unwritten clause-that there is no blemish in the purchased good has been violated (This is stated explicitly by the Rambam (Mechero 15, 6) “It is an implicit condition in every sale that the purchased item is unblemished”) whereas here the condition was explicit.  However, there is no difference between a violation of an implicit condition and a violation of an explicit condition. Therefore, in order to determine the answer to your question it is necessary to examine the laws governing a mekach to’us.

Since you had the right to cancel your entire order you could have tried to negotiate a cheaper price at that time.  We should note further that the SA (CM 232, 4) rules that even when a customer is entitled to cancel his purchase on the grounds of mekach to’us he does not have the right to demand a cheaper price (unless the goods are worth one sixth less than the original price, in which case the laws of ono’o would require the seller to refund the amount you overpaid). For example, in your situation, you could have refused to accept the meals that were prepared by the caterer but you could not have forced the caterer to give them to you at a cheaper price.  What you could have done is to use the right to refuse to accept the meals as a negotiating tactic to try and negotiate a cheaper price but you could not have forced the caterer to give you the meals at a cheaper price since he could have told you, “Either you pay the full price or else I will not give you the meals”.

Furthermore, it is important to note that when a sale is classified as a mekach to’us it is not void automatically.  The fact that a sale is classified as a mekach to’us only grants the customer the right to void the sale.  However, if the customer chooses not to void the sale, the sales agreement remains in place.  This issue comes up often when people buy apartments. Many times there are serious problems with the apartment that would allow the customer the right to cancel his entire purchase on the grounds of mekach to’us.  However, in most cases the customer does not want to cancel his purchase because the price of apartments has appreciated in the interim.

However, you did none of these and your question is now that you used the portions that he brought without negotiating a new price whether you are still bound by the original price.  Since we have seen that mekach to’us only grants you the right to cancel the entire agreement, a choice which you did not make, you cannot after the fact unilaterally reduce the price or withhold money from the caterer.  Since you used the meals you must pay the price that was agreed upon.

However, if there are meals that were left over because some of your guests departed due to the delay, you can return these portions to the caterer and pay only for those portions that you used.  The reason is because you ordered these portions for the guests who departed and it was due to the delay that you had no need for these portions.  Since you did not use these portions you can claim mekach to’us on this portion of the sale.  Even though your agreement was for all the portions that you ordered, since the portions came late it is as if they did not deliver these portions.  Just like in case these portions were not delivered by the caterer, you would only pay for the portions that arrived, similarly when some portions arrived in a state that constitutes mekach to’us you can cancel this part of the sale.  Even if the caterer would argue that he would not have agreed to accept the job if you had ordered less portions than the amount that you ordered, you would be justified since it is the caterer who failed to abide by the original agreement.

We should note further that even if the caterer can justify his delay as being due to unforeseen circumstances that were beyond his control the halocho would remain the same since mekach to’us is not related to blame.  For example, we find in the Gemoro (BM 42B) that even if the seller was justifiably unaware of the blemish in the item that he sold, still his customer can void the sale on the grounds of mekach to’us.  This happens regularly when a person buys a damaged item from a store that he may return it even though it is not the store’s fault that the article was damaged and the store, justifiably was unaware of the damage.

In conclusion: You must pay the full price for all the portions that you used but are entitled to return those portions that were not used because of the delay.

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