Sara ordered a custom-made wig from Yocheved, a local sheitel macher, at the whopping price of $3,500. Upon payment Sara brought her new wig home, only to hear comments from her family members that the wig was clearly not worth the price. Sara ignored the ongoing comments for a while, but when her mother-in-law expressed her disappointment with the wig’s quality, Sara called Yocheved and demanded a refund. Since Sara has been a regular customer for years, Yocheved agreed to take the wig back and make the necessary changes to improve its quality. Yocheved suggested to Sara during a phone conversation that if Sara was not satisfied with the wig after repairs, she would consider reimbursing her with a thousand dollars. Sara replied that she felt that a thousand-dollar refund is the least Yocheved should do. Sara sent the wig back to the store with Debbie, her neighbor, who was going there anyhow. Debbie did some shopping on the way and negligently lost the wig in a department store. Admitting to her negligence, Debbie was willing to pay $2,500 for the loss of the wig. Debbie explained that Sara herself acknowledges that the wig is worth only $2,500. Furthermore, Debbie claimed that Yocheved already consented to paying Sara the additional thousand dollars. On the other hand, Yocheved claimed that she is by no means willing to participate in the loss since she intended all along to improve the wig’s quality and not reimburse Sara a thousand dollars.
The three appeared in our Bet Din to resolve the dispute. How should the Bet Din rule and why?
According to the ruling of the Shulhan Aruch a customer returning a defective item is liable for its theft or loss until it is given back to the seller. Although the sale is reversed because of the defect and the item once again belongs to the seller, nevertheless, the customer is responsible for damages until the seller takes physical possession of the return. Like collateral that must be returned to a borrower if a lender wishes to be reimbursed for his loan, a seller is not required to give a refund unless the item is returned.
Even in instances in which the buyer and seller disagree on the value of the item being returned, nevertheless, since the seller received and possesses the higher sum already paid, he can withhold the money in full until the item is returned. Hence, the buyer is not even entitled to a partial refund to offset his claim for the inflated price since the item was not returned.
By rule of the Shulhan Aruch, an unpaid messenger that negligently loses an item is responsible for damages. Even in instances in which a buyer sends a messenger to return an item that in the buyer’s opinion is grossly overpriced, the messenger is liable for the entire sum that was paid to the seller. The messenger may not withhold payment for his negligence claiming that the buyer himself agrees that the item was of lesser value. The underlying reasoning for this ruling is that since the seller is legally entitled to withhold the entire sum paid until the item is returned, effectively, the messenger by losing the item damaged the buyer for the entire sum paid.
Leading halachic authorities agree that if the price paid by the buyer is undoubtedly more than the value of the item, a messenger is only responsible for the actual value of the damage he caused. However, in instances in which the value of the item was not appraised, a messenger is liable for the amount paid to the seller.
A Bet Din will attempt to resolve a matter amicably, by suggesting a compromise to the disputing litigants. This method usually helps promote peace and tranquility between disputing parties. Although the letter of the law does not require payment, sometimes a token payout can restore relationships. At times, a Bet Din will strive to encourage litigants to settle with a compromise from the very onset of their dispute. By doing so, a Bet Din can prevent unnecessary struggle and strife between the parties.
While many factors and considerations are weighed before implementing a compromise, in a financial dispute, a Bet Din will not consider the levels of religiosity, relative wealth of the parties, or gender. Rather, the compromise is formulated based on the truthfulness and strength of the litigants respected claims.
VEREWDICT: The Party’s Over
According to Torah law Debbie is required to pay the entire sum of $3,500 to Sara for losing the wig. Her claim to pay only $2,500, because Sara herself agrees that is the value of the wig, was rejected. By law, Yocheved can withhold the entire sum she received from Sara, since the wig was not returned to her. Yocheved has possession of the money paid and is entitled to claim that she had no real intent to discount the price, but rather to fix the wig to Sara’s liking. Effectively, by losing the wig, Debbie directly damaged Sara with a financial loss for the entire sum. Nevertheless, our Bet Din implemented a compromise to settle the matter amicably, by making the three parties involved share equally in the thousand-dollar discrepancy. The basis for the compromise was that Yocheved was spared the inconvenience of adjusting the wig to Sara’s liking. Upon inquiry by our Bet Din, fixing a wig to a customer’s liking is tedious and very often not successful. As per Sara’s participation in sustaining a third of the loss, our Bet Din viewed her opportunity to rid herself of a wig she was not happy with as a gain. After all she was reimbursed for nearly the full amount she paid. Lastly, since by law Debbie was liable for the full one-thousand-dollar discrepancy, she is required to share in a percentage of the loss.
YOU BE THE JUDGE
Lawyer’s Creed or Greed?
Abe, an accomplished lawyer, was hired to negotiate a settlement on behalf of his client. Due to his client’s advanced age and inability to withstand the pressure of the negotiation process, Abe’s job included reviewing the relevant documentation prior to negotiations without his client’s assistance. The client signed a contract compensating Abe with a flat fee of fifty thousand dollars for his services, and the client immediately wired Abe ten thousand dollars in payment. After Abe’s office spent a few hours reviewing the material, Abe made a total of three phone calls and several text messages in negotiations over the next two weeks. Abe’s work was clearly only in the preliminary stages of development. Surprisingly, shortly thereafter, Abe’s client somehow managed to settle the entire dispute on his own in a single meeting with his opponents. Abe appeared in Bet Din claiming payment of the forty-thousand-dollar balance due as per the contract. He explained that he performed his services in a professional manner and the specific time frame of two weeks is irrelevant. He asserted that he charged a flat rate regardless of the duration of time required. Additionally, a contingency clause in the contract enabling Abe to collect 30 percent of any amount awarded was crossed out. Collection of percentage was not a relevant term in this case, as the client was not claiming payment from his opponents. Strangely, the next clause which was not crossed out did entitle Abe to collect 30 percent from the amount awarded even if his client privately settled the matter without his knowledge. Abe claimed that the latter clause was not crossed out, only to ensure under the same terms, his flat fee of fifty thousand dollars from his client. The client countered that he is unwilling to pay an additional forty thousand dollars for a few hours of preliminary work which did not even assist him to settle the dispute. He expressed that the ten thousand dollars wired was already an outrageous sum for the services received. The client further defended that the clause ensuring payment in the event he privately settled, is only relevant as stipulated, to cases with a 30 percent contingency fee, and not for flat rate fees.
How should the Bet Din rule, in favor of Abe or the client and why?