By Rabbi Yair Hoffman for 5tjt.com

THE CASE

Imagine the following:  COVID is nearly over.  Nearly everyone has been vaccinated.  A husband who usually takes his family away for Pesach to a hotel tells them, “This year we will join a glatt kosher Shavuos program!”

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They are told about a wonderful venue with outstanding food service – the finest in glatt kosher cuisine. The family is very excited.

When they arrive, however, things are not what had been promised them. There is not enough food to go around. It seems that the food service staff had ordered less food than was necessary – in an effort to save or make money.

At meal number one, when they first arrived, the writing was on the wall. The lack of adequate food supply, the dismal food preparations, and the lack of kitchen personnel, were readily seen. People had already gotten sick from the food at meal #1, which was spoiled.

Some of the food served at meal number two was also spoiled. Indeed, there was not a family where everyone was healthy – at least one person was sick in each of the rooms.

It was so bad that half a dozen people had to be hospitalized. Some had brought babies, but there were no cribs as promised. A few of the older guests were promised that there would be provisions and adequate food for spouses who were diabetic. There wasn’t.

THE OWNERS RESPOND

The retreat directors wanted the guests to pay. They stated their case:

“Granted there were some issues and misunderstandings. However, you did remain at the hotel when you had ample time to go back home. This constitutes acceptance and you are fully obligated to pay.”

The retreat directors claimed that they had asked their Rabbi who allegedly said that the laws of Choshain Mishpat in Chapter 232 are clear. He allegedly ruled that the decision on the part of the students to stay indicates that it is not a Mekach Taus, an erroneous transaction, and that the bills must, first and foremost, be paid in full. Should the retreat directors wish to refund any moneys later, that is up to either them or their Poskim, but that all moneys had to be paid first.

Some guests were so upset that they instructed their credit card companies not to pay and they disputed the payment.

SO WHAT IS THE HALACHA?

What would be the Halacha in such a case?

It must be emphasized, of course, that Rabbonim and Poskim should not rule on cases without hearing both sides of a dispute. What they can do is answer, “Given these facts, in this situation, the following Halacha is true.” However, if there is a slight change in the details, such as blank or blank, it is clear that this ruling no longer applies.”

This disclaimer should be given as a matter of course whenever a matter of Choshain Mishpat is discussed.

The ever so small change in a detail could make a world of a difference. This author once asked a major Posaik about a statement that he had ostensibly made regarding a similar case. The Posaik responded, “No one had ever mentioned to me the detail of spoiled food.”

THE PRINCIPLE OF MUCHZAK

One of the most important aspects of the adjudication of financial disputes lies in the issue of “Muchzak” – who is the person holding onto the money. The notion of “possession is nine tenths of the law” applies in Halacha as well as, lehavdil, secular law. Indeed, it may even carry more weight in Torah law. Let’s keep this idea in mind.

THE LAW REGARDING OVERCHARGING

The Shulchan Aruch does seem to say that acceptance and continued use of the item would constitute a Mechila, an acceptance of the sale. However, the issue is not so clear. The Pischei Teshuva (CM 332:1) writes that in a case of Onaah, overcharging, even if the overcharge was more that 17%, if he informed the seller and used the item afterward – we do not say that he forgave the excess charge. Rather, the buyer is obligated to pay the owner what he had used up or he is obligated to pay the value of the loss that he caused the owner through use of the item if the buyer wishes to cancel the item.

THE LAW REGARDING DEFECTIVE ITEMS

While this is true in regard to overcharging, does the same concept apply when the item has a defect? The Machane Efraim (Chapter Five of Dinei Onaah also cited in the Pischei Teshuvah) rules that it does. He writes that if there is a defect in the sale and he informed the seller and subsequently used it, he can still go back.

Yes, but do we rule like this Pischei Teshuvah and Machane Efraim? That’s where the idea of Muchzak – possession comes in. If someone has not yet paid, it seems clear that he or she would be fully in their rights to follow the view cited in the Pischei Teshuvah. If they already did pay, it is not so clear. The Ramah (and the Rivash cited) in chapter 327 of Choshain Mishpat indicate as well that acceptance does not constitute Mechilah.

THEY MUST STILL PAY FOR THE ROOM

There is no question, however, that the use of the room must still be paid for regardless. In the theoretical case of a high end hotel, the going rate for a room is about $180 without the cost of the food service. We also see the idea of the partial payment in the Gemorah in Bava Basra (146b) where the price of the sold item was knocked down by 1/3 because of a similar issue.

CREDIT CARD PAYMENTS

What about a credit card payment? Can a person cancel such a payment or does that constitute theft on the part of the parent? In other words, when one pays by credit card who is the Muchzak (person in legal possession) of the funds that were already paid?
In 1975, the Fair Credit Billing Act (FCBA) was passed as Federal Law amending the Truth in Lending Act of 1968. It was designed to protect consumers using a credit card from seven different areas:

1] Charges not actually made by the consumer
2] Charges in the wrong amount
3] Charges for goods or services not received by the consumer
4] Charges for goods not delivered as agreed
5] Charges for goods that were damaged on delivery
6] Failures to properly reflect payments or credits to an account
7] Calculation errors and other issues involving mailings

It is important to note that the FCBA credit card dispute rules and rights do not apply if you are disputing the quality of goods and services. Purchasing defective product is not a “billing error.”

So far, it seems that if one paid already by credit card it would be forbidden to have the company reverse the charges. (As a general note, one should always communicate in writing as well whenever dealing with a credit card company, but that is a different issue.)
There is also a time limit on credit card disputes of within 60 days after the very first bill was generated. The credit card company launches an investigation within 30 days of receiving word of a person’s dispute. It must resolve all issues within 90 days.
If they find in the seller’s favor the purchaser can still appeal, but must do so within 10 days of receiving the ruling.

According to the law, if it is a matter regarding the quality of the item purchased, a dispute may still be lodged if three requirements are met: 1] The price is $50 or more 2] It was made within 100 miles of your address or within your own state and 3] you made a “good faith effort” to resolve the problem with the seller.

Of course, every consumer should ask their Rav or Posaik regarding credit cards but, it seems to this author, that since the retailer signed onto the terms of this agreement with the credit card company, the retailer would not halachically be considered a muchzak on the moneys to the point where the charges cannot be disputed. Should the retailer succeed in winning the case with the credit card company after the 90 day period then he subsequently becomes the Muchzak on the funds and would therefore be entitled to any appropriate halachic stances and positions.

SEEK WHAT’S RIGHT – NOT TO WIN

There is a fascinating Sifsei Chachomim in Parshas Shoftim on the Rashi of “Tzedek Tzedek Tirdof.” He indicates that it is important to note that whenever a financial dispute arises we must never seek to win. Yes, winning is not what we should be pursuing. We must rather seek that true Tzedek be adjudicated here, regardless of which side we are on. If we can reach this point in our disputes, it may help resolve the bigger problem of this long Galus bevias goel tzedek bim’heira beyameinu. Amain!

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The author can be reached at [email protected].

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