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based on ruling 74026 of the Eretz Hemdah-Gazit

Why Was the Etrog Order Changed? – part III


Beit Din Eretz Hemda - Gazit

Tevet 26 5781
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.

Ruling: [After discussing the status of the testimony of most of the witnesses, we will look into oo’s status.]

At first glance, the disagreement between the sides has caused a delay in oo’s getting paid, which gives him an interest in his testimony, which should disqualify him. However, this is not accurate because in any case CP is required to pay oo based on a separate contract they have with him. Even according to pl, oo does not benefit from his testimony, as pl claims that he owes oo for that which he gave to CP. The Rambam (Eidut 15:6) rules that when testimony ostensibly helps the witness but the benefit is readily available through other means, the witness is able to testify. Although at times we say that a witness would rather have the payment be due from one person rather than the other because he is more reliable (Shulchan Aruch, Choshen Mishpat 37:17), in this case, since CP is willing to pay and pl is likely to be in financial difficulties, oo is fit to testify.

It turns out, then, that we have two kosher witnesses (MR. S and oo), but that they contradict each other on whether oo was willing to stand by the deal he worked out with pl. The question cannot be solved. In such a case, we are left with a situation in which there is a contract between def and pl, which is binding (based on common business practice) unless it can be proven that it became irrelevant. Therefore, with no more than a possible claim of negligence on pl’s part, there are insufficient grounds for obligating pl to pay for damages to CP/def.

The sides had given each other checks for payment, should it be necessary. Def says that he needs a delay in payment because of possibly extreme consequences of immediate payment. On the other hand, pl describes his needs as equally dire. We, then, have to follow the timeline as found in the contract. Therefore, in one week, we will enable pl to receive 204,258 NIS for payment for the AM that def/CP received through pl.
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