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 Fellow Weekly -  Issue 129

WHAT'S THE LAW

  

 

 
Encouraging intelligent and entertaining debate at your Shabbat table.
 
Fellow Weekly raises issues of business law and ethics through lively emails by featuring your real-life scenarios answered by our leading authorities and professionals.
 

 

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Cases 239/240/241  Betrothal, Home Purchase, & Parking: Terribly Tragic Tips
 

Case 239: Shana Rubinstein from Los Angeles was dating a fellow, Paul B. from Johannesburg, South Africa. Shana had one South African acquaintance, a former schoolmate, Rina S.; from whom she inquired much about the guy.

 

 
Providence had it that, Paul and Rina's families immigrated together from Holland in the early 19th century and trustingly involved each other in numerous joint business ventures throughout the generations. Shana trusted that Rina would not steer her in the wrong direction.

  

Shana asked Rina if she knew if Paul ever had a history of drinking and smoking. Rina knew that Paul had a childhood history of alcohol addiction, but concerned for Paul's future told Shana that Paul was clean.

  

Months later, Shana and Paul announced their engagement. Yet Shana's costly choice was short lived after she discovered a current news clip reporting Paul being apprehended for driving while intoxicated.

  

 

Case 240: Dr. Stern was interested in purchasing a home in South Australia. He hired a professed professional building inspector to inspect its roofing, structural engineering, plumbing and electrical systems, termite inspection and if there was salt damp - a real concern for South Australian homeowners. The inspector printed out a positive report for Stern. Shortly after Stern purchased the home, he discovered a white blanket of roof fungus across some shingles and a termite infestation to boot.

 

 

 

Case 241: "You've still got some space to back up. You're clear. Steer a little left, back in...crash..." Don't you visualize this recurring scene, while you're behind the wheel trying to parallel park heeding the directive assistance of a local with compromised spatial assessment abilities walking his Dalmatian puppy at midnight in Flatbush?

 

 

 

Must Rina compensate Shana for her engagement expenditures on account of her bad advice

 

Local regulations and disclaimers aside, can Stern sue the inspector for his losses due to the flawed advice?

 

Is the dog walker liable for the damages to both cars?

 

 

 

   

What's the Law? 

 

Please email us with your comments and answers at weekly@projectfellow.org 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

LAST WEEK'S CASES ♦ CASE 238/239 ♦ Shoprite ® or Shop Right & Pedal to the Metal
                                          

Case 238 Shoprite ® or Shop Right  

Today, it is the largest retailer-owned cooperative in the U.S.; Wakefern Food Corporation; Always Fresh... Always for Less. Shoprite does it Right.

 

 

Inspired by philanthropist Milton Hershey, Ted Bernstein, CEO of Party Streamers Inc. managed a large orphanage in back of his sprawling upstate estate. Continuos arrangements with food distributers proved as an economical and efficient way to run the kitchen.

 

Wakefern agreed to allow Bernstein to purchase wholesale from the cooperative. An order form was generally submitted in the beginning of the month. In conversation with Wakefern at the onset of the relationship, Bernstein requested that Wakefern provide them with fresh produce as well. Wakefern duly informed their produce distributer in Elizabeth NJ.

 

Subsequently, Bernstein found a cheaper produce distributer and signed an agreement...but not before Wakefern had already purchased considerable produce with Bernstein in mind.


 

Case 239 Pedal to the Metal

 

 

"Hit the pedal to the metal. I've got to catch this flight..." pressed Barry Weinstein to his Livery Driver. "The gate to the USAir domestic flight from Newark to O'Hare is closing in forty-five minutes!" Eager to please his frequent customer, the driver complied...but was clocked at 100 miles per hour and was slapped with a hefty ticket and points on his license.

 

Wakefern spent money because of Bernstein's request. Is Bernstein required to ensure Wakefern does not incur a loss?

The cab driver sped to help Barry. Is Barry required to pay for the ticket?

 

 

What's the Law?

 

 

  

 

 

 

The Answer

We present you here with a concise ruling. For a more intricate elucidation, please see the detailed explanation below. 

 

Both Bernstein and Barry are absolved from paying.

 

 

 

Detailed Explanation
 
 

 

Shop Rite® or Shop Right: Pedal to the Metal invokes the following laws:  

  

Background

One is morally bound to uphold a reasonable commitment (one which an honest man in his capacity can practically fulfill). Should the situation unforeseeably change to the extent where it would be commonly understood that the commitment was in error, one cannot be bound to the commitment [Choshen Mishpat § 204:7-8; Rema ibid.].

Nevertheless, it is noble to uphold a verbal commitment- reasonable or unreasonable (whether or not people actually depended on the commitment), even if the circumstances change drastically [Aruch Hashulchan § 204:8].  

Congruously, breaching a verbal commitment generally carries fewer legal implications than would breaching a written commitment or a promise bolstered by a legally binding "kinyan" or prescribed physical act implicating obligation.

Below however, are some examples verbal commitments lacking the bolster of a conventional "kinyan" which are nevertheless legally binding [See Issue 25].  

 

 

1.   A verbally commissioned B to manufacture a defined item with the expressed intent of purchasing it from the manufacturer upon its completion. B duly relied on A and manufactured it. A reneged on the commitment. If B is unable to sell the item immediately and will suffer a financial loss, A must compensate B for the financial loss he/she caused him/her [Choshen Mishpat § 333: 8].

2.   A verbally hired B to manufacture a defined item with the expressed understanding of owning the item from the onset. B duly relied on A and manufactured it. A reneged on the commitment. A must pay B for the provided services whether he/she wishes to accept the finished product or not [Nesivos Hamishpat ibid. 15].

3.   A verbally asked B to present money to C with the expressed intent of paying B. The benefit C receives as a result of B honoring A's request functions as would a legally binding "kinyan" whereby lawfully obligating A to unconditionally uphold his/her commitment [Ran Maseches Kiddushin 4b].

4.   A verbally asked B to discard money with the expressed intent of paying B. As no one benefited from the money which B discarded, A's request lacks a legally binding "kinyan". A cannot be lawfully bound to pay B [Aruch Hashulchan § 380: 4, Shulchan Aruch Even Ha'Ezer §30: 33].

 

Application

Shoprite

If protocol would have been that Wakefern would order based upon a verbal discussion, then although Bernstein could legally have backed out upon finding a considerably better deal, he would be liable to compensate Wakefern if they would be unable to sell the produce and whereby incur a loss on his account. However, since protocol was to submit a monthly order form, Bernstein did not have to expect Wakefern to order produce based upon their initial conversation. Bernstein would therefore be absolved from compensating Wakefern for any resultant subsequent loss.

 

Pedal to the Metal

The livery driver ultimately chose to speed on his own accord. Even if Barry would have told him to speed and he would pay for any ticket, Barry would be absolved from paying. Why? Barry made a verbal commitment which lacked a legally binding kinyan. Even if it would have been certain that the driver would have gotten caught, one cannot argue that the ticket money the driver paid as a result of Barry's request would function as a legally binding kinyan to obligate Barry to honor his commitment because no one benefited from the ticket money. It would be similar to A asking B to discard money rather than to honor his request by presenting money to C.

  
 

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Note:
 
Although we aim to present the correct ruling, varying details are always important and decisively influence every individual case. Our readers are thus encouraged to present their personal cases to a competent authority and not solely rely on the information provided.
 

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