Disappointment with Arba Minim Sales Provisions – part III | Beit Din Eretz Hemda - Gazit | Beit Midrash

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Case: [We will deal with this case’s two elements of dissatisfaction separately.] The defendants (=def) are, respectively, suppliers of arba minim (def2) and the organizer of a "buyer’s group" (def1) to rent the courtyard of a public building (=buil) for selling arba minim. Pl are two friends who sold at buil¸ who ordered 300 sets of arba minim including 160 "preserved" lulavim, which are common for high-quality sets. They claim to have received only 80 high-quality lulavim, which made it unrealistic to sell expensive sets, causing a loss of 2,000 NIS between them, which they want reduced from the money they owe for the sets, which they took without paying. Def2 says that they were out of additional preserved lulavim but they offered an alternative package consisting of other high-quality species, which pl refused to take. Def2 claims that it is common, in the great confusion of such a market, that wholesalers cannot provide exactly what was ordered and retailers accept the best alternatives and the sides make an accounting after Sukkot. By not accepting alternatives, pl caused losses for themselves and def2 and must pay for what they ordered. The two sides disagree if pl received 40 or 80 lulavim less than ordered.

Ruling: [After discussing complaints about the rented location, we now discuss the matter of merchandise supplied.]

Regarding the factual question of how many lulavim pl received and must pay for, we accept pl’s claims for the following reasons. First, they are defendants in this matter who are saying definitively that they did not become obligated in more of the payment than admitted. In contrast, def2 seek to receive payment and also do not sound as confident that they gave all but 40. We also expect pl to remember better, as they were dealing only with their small orders, as opposed to def2 who sold 40,000 sets to many dozens of retailers. Whether or not it was customary or wise to do so, pl have a right to accept only the merchandise they ordered, and so they are exempt from paying the 16 NIS each that the 80 lulavim cost, for a savings of 1,280 NIS.

Based on the prices discussed in beit din, pl is claiming that the lack of preserved lulavim caused 20 sets to not be sold (11% of full sales). This is not an exaggerated claim, but the burden of proof is still on pl that the shortage of preserved lulavim caused them to sell significantly less to the degree of certainty to obligate for damage in the form of preventing gain. It is also not clear that pl did not have alternatives to have prevented the damage, such as accepting the alternatives or buying the extra lulavim from a different supplier (pl claimed that def2 repeatedly promised they would provide what was ordered). Therefore, according to strict Halacha, we cannot obligate def2 in damages. On the other hand, def2 themselves said that when an order is not delivered as promised, the buyers and sellers work out a compromise. It is also possible to give a reduction to pl on the other elements of the sets that they bought and did not use. The dayanim disagreed whether and how to calculate a small compromise on this point [the details of which are too technical for this forum.]