Why Was the Etrog Order Changed? – part

Case: The plaintiff (=pl) is an Israeli merchant of arba minim (=AM). The defendant (=def) is a representative of Company P (=CP), which sells in several places abroad. Def and pl signed a contract for specific amounts and prices of AM (in the thousands), with pl arranging where and how def would receive merchandise. The sides had disagreements about several things, including the quality of the lulavim and etrogim, due to which def did not pay pl in full. Mr. S, an AM appraiser, who represented CP, worked out a new deal between the orchard owner (oo) and CP, which was written down and signed a week later. Therefore, def claims that pl does not deserve any cut in the eventual etrog sale. [Those issues were easily adjudicated by beit din]. Def is countersuing for damages that pl caused, primarily because oo, who was supposed to provide the etrogim, did not give def as many etrogim and of the right type as he requested. Since CP ordered sales rooms and advertised for a larger quantity than ended up, CP is making def pay damages ($85,000), and def is demanding that amount from pl. Def blames pl for not making a written agreement with oo or coming to the orchard to make sure the agreement went through.

Ruling: The contract between pl and def states that pl will reimburse def for damages he sustained, including if def has to pay others due to pl’s negligence. The question is whether pl was negligent regarding the etrogim. First, pl claims that the agreement with oo was not carried out because Mr. S decided to raise the quality of the etrogim he wanted for CP, and this caused the need for a change in quantity. Def claims it was because oo was concerned that too big an order was being made and that CP would not pay oo in full. [We will discuss next time the partiality of the different witnesses on this matter.]

Was it necessary for there to be a contract between pl and oo? Pl said that the AM market is one based on trust between the major players, and there are rarely contracts. One of several indications that this is the case is the fact that Mr. S, upon making a new agreement between CP and oo, did not bother to write a proper contract but to sign on some numbers on a scrap of paper after a week.

Regarding the lack of pl’s presence, the contract does not state that pl needed to be present but could have someone representing him. Since oo was serving on pl’s behalf to provide the etrogim for def, he fulfilled that requirement. Although a representative of def asked pl to come, he was not required to agree, which is even more understandable according to his claim that a family situation arose that required his immediate attention.