P'ninat Mishpat: Dividing Returns on Partially Cancelled Trip – part II | Beit Din Eretz Hemda - Gazit | Beit Midrash

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Case: The plaintiff (=pl), who lives in the US, signed up with and paid $4,140 to the defendant (=def), an Israeli company, for a trip to a third country (=dest), scheduled for Nov. 2023. The contract called for a 50% refund up to 21 days before the trip and no refund thereafter. After war broke out in Israel, def polled his clients to gauge the trip’s viability, and pl did not initially respond; the trip took place with only six participants. Eventually, pl cancelled her participation because the war complicated her travel plans and made her feel it was not the right time for a trip, but it was within 21 days. Def told pl he would try to get some refund from service suppliers (=ss) in dest, and was able to offer pl $2,610. Pl tried to get her credit card company (=ccc) to cancel her payment to def, by arguing she did not receive the services. Def had requested she not do so, including because if ccc accepted her claim, it would hurt def’s standing with ccc. When ccc rejected her claim, pl asked def for the $2,610, but def rescinded his offer, arguing that she did not deserve his magnanimous gesture after she acted in a manner that could have damaged him.

Ruling: [Last time we saw that pl did not have the right to get a refund from def because of the refund conditions that she agreed to and because she was not prevented from taking part in the trip.]

We do not find that def obligated himself to secure a refund for pl. He acted beyond the call of duty by working to try to return money for def. The initial efforts did not become binding to follow through with returning more than the agreement between the two of them obligated him. Additionally, it is clear from communications between the sides that pl was aware that she was rejecting def’s offer and taking an alternate path that was potentially damaging to pl, which also makes the offer meaningless at this point.

On the other hand, we must analyze how to view the money def received from ss. This is along the lines discussed in the Shulchan Aruch (Choshen Mishpat 183:6) of an agent who bought something on behalf of a buyer and received more than expected from the seller. Here too, the clients, including pl, paid money for services to ss, who, through def’s involvement, returned money that was not required. The Shulchan Aruch rules that if the price was set, the extra is split between the buyer and the agent, and if it is not set, all goes to the buyer. The Rama comments that if the seller explicitly said he gave it because of the agent, the agent receives the extra. Rashi (Ketubot 98b) explains that the reason to split the extra is because we are unsure because of to whom the seller gave it, thus explaining the Rama about the importance of the seller’s statement. The Rif explains that it is split because the agent was able to receive the money only because he had the buyer’s money to spend. So too here, def was able to receive the refund that corresponds to pl’s payment to ss only because of pl’s money, and therefore pl should receive half of it.

Therefore, def must pay pl $1,305.