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based on ruling 80099 of the Eretz Hemdah-Gazit Rabbinical Courts

Refund for Bar Mitzva Cancelled Due to Covid – part I

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Beit Din Eretz Hemda - Gazit

Adar 23 5781
Case: The plaintiffs (=pl) signed with the defendant (=def) in Nov. 2019 to make a bar mitzva party for their son in June 2020, with def providing a hall and food for 200 people. Pl gave a non-refundable 3,000 NIS down payment. In April 2020, during the first Corona lockdown, pl demanded a return of the down payment; def refused. As the time approached, def did not present plans to hold the party, and pl arranged a party in a makeshift location. Two days before the bar mitzva, as restrictions were easing, an employee of def called pl to discuss rescheduling the bar mitzva, which pl was not interested in. Pl claim that since they received no benefit from def and the pandemic was something that precluded everyone from making such parties, they should receive their money back. Additionally, he did not work to arrange a smaller affair outside. Def argues that since he could not have made a party as planned and the money was given before signs of the pandemic existed, the non-refundable down payment need not be returned. He claims that almost all of his customers agreed to reschedule.

Ruling: Agreements that cannot be kept due to a pandemic fall under the category of a makkat medina (a broad unavoidable problem that cannot be attributed to anyone’s "bad mazal"). The Rama (Choshen Mishpat 321:1) rules that if one rents a property and then cannot use it due to a makkat medina, he can take off from the rent. For the time he could not use it, he need not pay.

Elsewhere, the Rama goes further (ibid. 312:17). If one rented a house and the whole city burned down, then for the time after the fire, he even gets a refund of what he prepaid. The Taz and Shach (on CM 334:1) rule that the same is true even there is nothing wrong with the rented house but that people needed to flee the city due to a plague. The Mabit (I:40) says that the same is so if non-Jews kicked the Jews of the city out of their houses. In our case, then, pl should deserve their money back.

Another approach that supports pl is presented by the Netivot Hamishpat (230:1). Even if one buys a house, if before he had an opportunity to benefit from it, a makkat medina prevented using it, he can back out of the deal based on the assumption (umdana) that one would never agree to acquire it if such circumstances were included. The Chazon Ish (Bava Kama 23:10) also explains the lack of responsibility to pay for a rental that cannot be used based on umdana.

On the other hand, the Machaneh Ephrayim (Sechirut 7) says that if the renter paid a down payment and then a makkat medina occurred, the owner does not have to return the down payment. Here the Machaneh Ephrayim applies, as he is based on Tosafot (Bava Metzia 79b) talking about a case in which neither side to the agreement is able to follow through on it. Here too, the government does not allow the halls to open or people to assemble there. However, the Machaneh Ephrayim is a minority opinion (see Minchat Pitim, CM 321:1). Therefore, in the standard case of a hall closed due to Corona, the down payment must be returned.
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