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Beit Midrash Series P'ninat Mishpat

based on ruling 74026 of the Eretz Hemdah-Gazit Rabbinical Courts

Chapter 590

Why Was the Etrog Order Changed? – part II

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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 they received, 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.
P'ninat Mishpat (599)
Beit Din Eretz Hemda - Gazit
589 - Why Was the Etrog Order Changed? – part
590 - Why Was the Etrog Order Changed? – part II
591 - Why Was the Etrog Order Changed? – part III
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Ruling: [Last time we saw that pl was not negligent in not signing a contract with oo or coming to help def negotiate with him.]

There were conflicting testimonies in beit din regarding the question if oo was willing to go along with the agreement that he and pl had worked out. Mr. S said that because oo thought it was too much merchandise to trust CP to pay for, oo refused to give that which was promised. Mr. P (pl’s brother) said that oo did not trust that pl had ordered wisely, considering it was for the Diaspora, and that maybe had pl been present he could have solved the problem. Therefore, he said, the deal was only made possible by oo’s confidante, Mr. T. Mr. A also said that oo had not prepared merchandise for def, as he does for buyers he takes seriously. Oo testified that while he was surprised, he was willing to do the sale as discussed, but that he thought that CP would want a different arrangement. Actually, the claim that it was a totally new deal is something that def never raised in his letters to beit din; he raised it for the first time in the hearing. There was a contradiction in Mr. S’s testimony, who def brought as a witness, as he later said that he ignored pl’s order and pushed in a new order of his own volition. Perhaps the strongest evidence that pl’s contribution was not forgotten, is that the delivery order that oo prepared said, "for pl or Mr. S in the name of CP," and Mr. S signed that order. Mr. S said that he did not consider that accurate but only signed about the number received. The gemara (Ketubot 24b) relates to the question if one who signs on a document affirms everything written in it or only its critical elements. The Rama (Choshen Mishpat 49:7) rules that we view it in a limited manner; the Shach (ad loc. 7) views it more broadly.

We cannot base ourselves strongly on Mr. P’s testimony, as he is a relative of a party, nor on Mr. S’s testimony, as he contradicted himself.

[Next time, we will discuss the status of oo’s testimony and complete our treatment of the case.]
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