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January 29, 2015 / 9 Shevat, 5775
 
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“I saw an advertisement for group swimming lessons during the summer,” Mr. Leiner said to his wife. “I think it would be good for our Pinchas.”

“We already paid for membership at the local pool,” said Mrs. Leiner. “Aren’t you teaching him?”

“I am, but it’s going very slowly,” replied Mr. Leiner. “I think a group environment would help.”

Mrs. Leiner called the swim instructor, Boruch, and asked how much the lessons were. “It’s $600 for a series of 12 lessons,” he said.

“Can I break it into two payments?” asked Mrs. Leiner.

“You can break it into two checks,” replied Boruch, “one for this month and one for next.”

Pinchas returned from the first two lessons in good spirits. On the day of the third lesson, Pinchas lay on the couch reading a book.

“Pinchas, it’s time to get ready for the swimming lesson,” said his mother.

“My leg hurts me badly,” said Pinchas.

“What happened?” asked his mother.

“I fell off my bicycle today and twisted by ankle,” replied Pinchas.

“I see it’s swollen!” his mother exclaimed, giving him an ice pack. “If it continues to hurt we’ll take it for an X-ray.”

Three days later, Pinchas’s foot still hurt. An X-ray confirmed that the leg was fractured; the doctor put a cast on the leg.

Later that day, Mr. Leiner called Boruch and notified him that Pinchas would not attend the lessons anymore.

“What’s the matter?” asked Boruch. “Is he dissatisfied with the teaching?”

“No, he had a bicycle accident and broke his leg,” said Mr. Leiner. “He’ll be wearing a cast for the remainder of the lessons.”

“Obviously if he has a cast he can’t come,” said Boruch.

“What about the payment?” asked Mr. Leiner. “We paid for the whole series, but he participated in only three lessons.”

“I don’t charge by the lesson,” said the instructor. “Payment is for the entire series, and I’m continuing to teach.”

“But if Pinchas is not attending, I shouldn’t have to pay,” said Mr. Leiner. “If I have to, I’ll stop the second check.”

“I don’t think that’s right of you,” said Boruch.

“I don’t think it’s right of you not to refund payment for all the remaining lessons!” retorted Mr. Leiner.

“I suggest we pose the issue to Rabbi Dayan,” the swim instructor said. “Whatever he says – I’ll do.”

Mr. Leiner arranged to meet with Rabbi Dayan and asked: “Does Boruch have to refund the money for the remaining lessons? What about the second check?”

“If an employer is forced to retract for a medical reason, he has to pay only for the work done,” explained Rabbi Dayan. “Thus, Mr. Leiner does not have to pay for the remaining lessons, unless stipulated otherwise or there is a common practice in this regard.” (C.M. 334:4)

“So Boruch has to refund the money for all the remaining lessons?” asked Mr. Leiner.

“No, because the rule is different where the money was prepaid,” continued Rabbi Dayan. “In this case, so long as the worker is able to continue providing the service, he does not have to refund the money, even if the employer was forced to cancel the service for medical reasons or the like. Tosefos [B.M. 79b s.v. e asi] explains that by paying up front, the employer undertook the risk that something might happen and gave the worker the money even if he would have to cancel his service. Thus, Boruch does not have to refund the money from the first check. [See Pischei Teshuvah 334:2] It would be meritorious lifnim mishuras hadin, though, if there wasn’t limited space and he didn’t have to turn away others.”

“What about the second check?” asked Mr. Leiner.

“Technically, a check is not payment but instructions to the bank to pay to the bearer,” replied Rabbi Dayan. “Even if we consider a check to be like payment, since this is the common form of payment nowadays, Tosefos’s logic does not apply to a postdated check. The fact that it was postdated indicates the employer is not willing to risk giving all the money up front. Thus Mr. Leiner can stop the postdated check or demand it back for the unused lessons.” (Rabbi Zvi Spitz, Minchas Zvi, vol. II, p. 61-62,76)

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 subscribe@businesshalacha.com. 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 ask@businesshalacha.com.


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