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Ruling: [We saw last time that def was bound by their agreement and cannot renege based on misinformed consent. Now we discuss how much to pay.]
Since 3,500 NIS was the basic price for the game and in this case def did not get to benefit from it, paying that amount turns out to be a penalty, and possibly an asmachta (an obligation one never expected to be actualized), which is not binding (Choshen Mishpat 207). However, in this case, the sum is not exaggerated, due to pl’s loss of income (see Bava Metzia 104a), as work was done and def backed out at the last moment. This is strengthened by the fact that this type of clauses are standard in many present-day contracts. Therefore, the cancelation fee of 3,500 NIS is binding.
There are two issues regarding the late fee of 7,700 NIS – asmachta, and ribbit. First, considering that the initial payment in this case is itself only a penalty, to attach such a steep appreciation is exaggerated and therefore a problematic asmachta.
Regarding ribbit, the Shulchan Aruch (Yoreh Deah 177:14) rules that if one obligates himself to pay a certain amount for late payment, it is forbidden because of ribbit. We have found a very novel idea by Rav Shlomo Zalman Auerbach that when one pays extra after not paying, it can be considered paying for his treachery rather than ribbit if he was not given permission to pay late. Others argued on Rav Auerbach based on the Rashba (Shut I:651). Therefore one cannot extract this late money when it is not clear that def is obligated. Because def’s delaying was wrong (as even they admit), def will have to pay the full beit din fee.
P'ninat Mishpat (832)
Beit Din Eretz Hemda - Gazit
661 - Reservation of an I-pad Game – part I
662 - Reservation of an I-pad Game – part II
663 - Did the Advisor Do Enough?
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Beit Din Eretz Hemda - Gazit
P'ninat Mishpat Who Breached the Contract? – part IV
Based on ruling 81087 of the Eretz Hemdah-Gazit Rabbinical Courts
Igrot Hare’aya Raffle of Property in Eretz Yisrael for Tzedaka
Igrot Hare’aya – Letters of Rav Kook: – #220
P'ninat Mishpat Limits of Interest Rate for Loan with Heter Iska – part II
based on ruling 80033 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: Smoking Rights in a Rental? – part III
based on ruling 85076 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: Undoing a Problematic Partnership – part III
based on ruling 84061 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: To Whom Do the Payments Go? – part I
based on ruling 81075 of the Eretz Hemdah-Gazit Rabbinical Courts
Rabbis in Midrash
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