Latest update: September 4th, 2012
“Welcome to the bar mitzvah celebration of our dear son, Eliezer,” Mr. Siegel announced to his guests. “The bar mitzvah boy will now make a siyum Mishnayos, which will be followed by the main course.”
The tasty cuisine was befitting of the se’udas mitzvah and enhanced the special aura of the evening.
Mr. Siegel returned home from the bar mitzvah elated. A week later, however, he heard that kashrus certification had been revoked from the caterer. He contacted the local va’ad hakashrus to ascertain what the issue was, and found out – to his great dismay – that non-kosher meat may have been served at his son’s affair!
Mr. Siegel immediately called the caterer. “I heard that your kashrus certification was revoked,” he said. “I understand that it may relate to non-kosher meat served at our bar mitzvah.”
“There were such allegations, which we deny,” said the caterer. “We are working towards resolving the issue with the va’ad hakashrus to restore the certification.”
“I hope that is true,” said Mr. Siegel. “We are very concerned about the possible breach of kashrus that you caused us.”
“Nothing has been proven meanwhile,” replied the caterer. “There is no point in discussing it now.”
Two weeks later, though, Mr. Siegel received confirmation from the va’ad kashrus that non-kosher meat had been used at his son’s bar mitzvah. The caterer’s kashrus certification would not be restored in the near future.
Mr. Siegel called the caterer back. “The va’ad kashrus has confirmed that non-kosher meat was served at the bar mitzvah,” he said. “We demand a refund of the catering cost and compensation for the anguish that you caused us.”
“The bar mitzvah is already a past issue,” replied the caterer. “You were served the menu that you ordered, so that I don’t see any reason to refund the money.”
“We absolutely did not get the food we ordered!” responded Mr. Siegel forcefully. “Non-kosher food is worth much less than the kosher food. Anyway, that’s not the issue; we absolutely will not pay for a non-kosher affair. The whole booking was a mistake; it’s a mekach ta’us.”
“Whether it was a mistake or not, you have nothing to return,” said the caterer. “You ate the food already and benefited from it. At most we are willing to refund the differential in cost between the kosher and non-kosher meat.”
“That will not do,” said Mr. Siegel. “If you are not willing to refund the full amount, we will have to summon you to a din Torah.”
A week later, the caterer received a summons to Rabbi Dayan’s beis din.
“Non-kosher meat was served at our son’s bar-mitzvah,” Mr. Siegel said. “We demand reimbursement for the event.”
“The food was already eaten and enjoyed,” replied the caterer. “Why should I return the money?”
“Serving non-kosher food is a grave sin,” replied Rabbi Dayan. “Whether the seller must reimburse the customer for food that was already eaten depends on the severity of the kashrus prohibition.”
“What do you mean by that?” asked the caterer.
“If the food was non-kosher because of a biblical prohibition – e.g., certain tereifahs, improper slaughtering, meat and milk cooked together – then the seller must refund the full amount of the money, even if the food was already eaten,” explained Rabbi Dayan. “If the prohibition was rabbinic – e.g., certain other tereifahs, cooking by non-Jews, chicken and milk – the seller does not have to reimburse the customer for what he already ate [C.M. 234:3-4]. There are, however, kosher fraud laws that allow penalties and legal remedies for kashrus violation.”
“What difference does it make whether the prohibition is biblical or rabbinic?” asked Mr. Siegel. “Either way it’s not kosher!”
“There are two reasons for this distinction,” answered Rabbi Dayan. “First, on account of the greater severity of a biblical prohibition we penalize the seller for having caused the buyer to sin. Second, even though the buyer ate the food accidentally, if it entailed a biblical prohibition we don’t consider him as having benefited from the food, but rather assume he was repulsed by the thought.” (SM”A 234:4)
“What about an additional compensation for the embarrassment the caterer caused us?” asked Mr. Siegel.
“The Gemara (B.B. 93b) mentions a practice in Yerushalayim that a caterer who ruined the meal paid the owner for his embarrassment,” replied Rabbi Dayan. “The Tur (O.C. 170) cites this Gemara, but it is not recorded by other authorities, and is not accepted as the halacha.” (Pischei Choshen, Nezikin 11:50)
“What if the food had not been eaten yet?” asked Mr. Siegel. “Can the customer return it?”
“Non-kosher food that was sold as kosher is considered defective merchandise and can be returned,” replied Rabbi Dayan. “This is true regardless of whether the prohibition is biblical, rabbinic, or even on account of a widely accepted minhag [practice] or stringency.” (C.M. 232:11-12).
Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to firstname.lastname@example.org. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail email@example.com.
About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to firstname.lastname@example.org. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail email@example.com.
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