Question
I recently made a chasuna and since I am a doctor and see so many people who get sick because they eat unhealthy food, I made up with the caterer to serve a meal that only consisted of healthy foods and I told the caterer that I would not pay for unhealthy dishes. The caterer for the most part kept our agreement but for the entrée he served fruit to the women (which fulfilled his obligation) but regular unhealthy (white four, oil) bourekas to the men. Am I required to pay the full amount that we agreed upon? Or maybe I don’t have to pay anything since I informed the caterer that I will not pay for unhealthy food? Or am I only entitled to a reduction due to the caterer’s failure to comply with our agreement, and if so, how much?
Answer
We will begin with your first question: whether you are required to pay the full amount. Obviously, you must pay the full amount for the women’s portions and your questions only concern the men’s portions. We note that your issue brings to life many of the principles we derived in our Hebrew sefer, Mishpatei Yosher Volume 2.
Whenever one party diverges significantly from an agreement, the other party is released from the agreement. An instance that is discussed by the Mishna (BM 100B) is where a person gave wool to a dyer, with instructions to dye the wool one color and the dyer dyed the wool a different color. The Mishna does not differentiate whether the color that the dyer used was worth more or less than the color that was requested. It rules categorically that the agreement is no longer binding. While there is a disagreement how much to pay the dyer, there is no disagreement that the owner of the wool is not bound by the original agreement.
The next question is whether the divergence of the caterer is considered significant. While you did not want to serve unhealthy dishes, most people don’t mind and may even prefer the unhealthy dishes.
This issue can be decided based on a Gemara (Beitzo 6B) and a ruling of the Terumas Hadeshen (1, 322) that is ruled by the SA (CM 233) concerning mekach to’us. The Terumas Hadeshen ruled that if one asked a butcher to sell him high quality meat and later discovered that the meat was of lesser quality, the customer is not entitled to void the sale and may only demand a refund for the amount that he overpaid if there was a discrepancy in price. However, he rules that if the butcher knew that his customer is very particular, the customer is entitled to void the sale and return the meat. Therefore, since you, the customer, were very emphatic in your demand for healthy food, you are entitled to cancel your original agreement.
Since we see that the bourekas course did not fulfill your agreement, we have to decide whether you are entitled to make good on your threat that you will not pay for unhealthy dishes.
As always, in order to require one to pay something we have to find a basis for such a requirement. In your situation, the basis for such a requirement is the fact that, at the end of the day, your guests happily consumed the bourekas, which is what you want.
When one gives someone a benefit that was not covered by an agreement, the benefactor has the status of a yoreid. Thus, the basis for possibly requiring you to pay the caterer is that as far as the bourekas course is concerned he was a yoreid. Since he served bourekas on your behalf, your question is whether you as a beneficiary are required to pay for the benefit that you derived.
Since the caterer was a yoreid, we must study the laws of yoreid to determine if you have to pay for the benefit you derived and if so how much. The classic case of yoreid that is discussed by the Gemara (BM 101A) concerns one who, on his own initiative, planted someone else’s field. The Gemara states that the owner of the field must pay for the benefit he derived from planting his field unless he instructs the one who planted to remove his plantings from the field. There is a dispute concerning when one has this right, but all opinions agree (See Mishpatei Yosher volume 2: 3, 10) that if the owner of the field told the planter before he planted that he does not want anyone to plant anything or specifically the type of plant that the planter planted, he is entitled to demand, after the field was planted, that the planter remove his plants. If the planter fails to remove the plants, the owner of the field is not required to pay anything. The Nesivos (375, 1) writes that demanding that the yoreid remove what he gave is the only way a person has to protect himself from being forced to pay for a benefit that he did not request.
The issue in your case is that since the bourekas were eaten by your guests there is no way to remove them anymore. Therefore, we must clarify if you still have the right to tell him to remove them.
A similar case that is discussed by the poskim is one who painted another person’s property. For example, if a renter painted the owner’s property without asking for permission, can the owner tell the renter that he is not interested in the paint and as far as he is concerned the tenant should remove the paint and restore the property to its previous condition? The Nesivos rules (306, 7) that since this is impossible the owner cannot make this demand and he must pay for the painting. How much he has to pay is another issue.
Later poskim raised questions on the Nesivos from rulings of the Rishonim that indicate that it is possible to demand to remove the improvement in order to avoid paying for the benefit even if the demand is not feasible.
The consensus is like the ruling of the Chazon Ish (BK 22, 6) that it depends on the particular situation. The reason is that the demand of the owner that the one who improved the property should remove his improvement must be genuine. For example, in your situation, while it is clear that you genuinely did not want the caterer to serve bourekas, it is not clear that if the choices were to serve nothing or to serve bourekas, it was in your best interest to serve nothing. If you are able to convince beis din that you honestly did not benefit from the caterer’s serving of bourekas you do not have to pay anything. However, if that is not the case you must pay something for this course.
Moreover, if you saw the bourekas in the kitchen before they were served you have to explain why you did not say anything to the caterer. If you only noticed the bourekas when they were being served, you could claim that you did not want to make a scene at the wedding. However, if you noticed them earlier you will need to give a plausible reason for your failure to object.
If you really did benefit from the fact that your guests were served bourekas and not left without any entrée then you have to pay. We will now determine the amount you are required to pay.
As we mentioned at the outset, the status of your caterer is that he was a yoreid and we mentioned that the case that was discussed by the Gemara is a person who planted in another person’s field. The Gemara and SA (CM 375) differentiate between two types of yoreid who had no permission to improve the owner’s property (called a yoreid shelo birshus). If one plants trees in a field that is usually used to plant trees, the owner is required to pay for the benefit the owner derived from the planting. The benefit is the amount it normally costs to bring about this benefit. This amount generally consists of materials and labor. Thus, the owner of the field must pay what the materials cost and the typical cost for the labor.
The rationale for this, is that when one plants in a field that called for the planting of trees, we assume that one day the owner would have planted the trees himself. Therefore, we view the one who planted the trees as if he worked for the property owner and he must be paid accordingly.
However, if one planted in a field that is not usually used to plant trees, we do not view the one who planted as having worked for the owner. The only reason the owner must pay is because one must pay for benefits that he derives from another’s expense (ze nehene vezeh choseir). Since one must only pay for benefit he received, he need only pay the cheapest price that is available. Thus, if people who plant are normally paid fifty dollars an hour but one can find people who will plant for thirty-five dollars an hour, the property owner need only pay thirty-five dollars for each hour of work. Similarly, if the raw materials are available at a cheap price, he would only have to pay the cheap price.
Since you specified that you did not want unhealthy food, your situation is similar to one who planted trees in a field that was not usually used to plant trees. Therefore, you are entitled to a slight reduction. The reduction is equal to the difference between the amount that the caterer charged for this course (food plus labor) and what the cheapest caterer would have charged for serving a similar course.
In conclusion: If you have convincing arguments to justify a claim that you did not benefit from the bourekas course you can reduce the amount you must pay the caterer by the entire cost of this course. However, if this is not the case you can only reduce it by the difference between the amount the caterer charged for this course and the amount the cheapest caterer would have charged.
