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November 21, 2014 / 28 Heshvan, 5775
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Timely Delivery

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The colorful advertisement on the shul bulletin board attracted Mr. Freilich’s attention. “Mishloach Manos Express!” the sign proclaimed. “This Purim is on Sunday; most services will not deliver. We will prepare and deliver your mishloach manos nationwide, on Purim!”

Mr. Freilich’s son, Mordechai, had moved halfway across the country to Chicago five years ago. Each year, Mr. Freilich had sent mishloach manos through a 24-hour delivery service to ensure it would arrive on Purim day. He was worried what he would do this year.

“Oh, great!” exclaimed Mr. Ploni. “I’ve been wondering how to send to mishloach manos to Mordechai this year. Here’s the answer!”

He contacted the number listed in the ad, and ordered mishloach manos for Mordechai.

Early Thursday morning, though, a tremendous snow storm began. The entire city was covered with three feet of snow. The airport was closed for the entire days and thousands of flights were cancelled. Highways were blocked for hours until the plows were able to clear them. A parallel storm hit Chicago on Shabbos, bringing the city almost to a standstill.

Needless to say, the mishloach manos could not be delivered on Purim.

The day after Purim, Mordechai Freilich received the mishloach manos package with a note: “This mishloach manos was meant to be delivered on Purim, but delayed due to the storm. Please accept our apologies.”

When Mr. Freilich heard the mishloach manos were delivered a day late, he was disappointed. He called Mishloach Manos Express to complain about the delayed delivery. “You promised delivery on Purim,” Mr. Feilich said. “That was the whole point. I’d like my money refunded.”

“We understand your disappointment about the delay,” MME replied. “However, you clearly understand the delay was due to circumstances beyond our control. We did our best, and prepared the packages for delivery, but weather conditions simply did not allow it.”

“I understand the problem and I’m not blaming you,” said Mr. Freilich. “However, from my end, you didn’t fulfill the terms of the agreement. You promised delivery on Purim and it didn’t happen. I didn’t pay for this!”

“We also did not expect this,” said MME. “We cannot take responsibility for acts of God.”

“I would like to ask Rabbi Dayan about this,” said Mr. Freilich. “Is that acceptable?”

“We’re willing to accept Rabbi Dayan as mediator,” said MME. “You can ask him and we will abide by his ruling.”

Mr. Freilich contacted Rabbi Dayan. “I arranged for mishloach manos to be delivered on Purim through Mishloach Manos Express,” he said. “Due to the storm, they were not able to deliver the mishloach manos on Purim. Must they refund the money?”

“The Taz [Y.D. 236:13] writes that if someone ordered timely merchandise, with an agreement that delivery must be by a certain time, and the delivery was delayed – even on account of uncontrollable circumstances – the customer can refuse the order and cancel the agreement,” replied Rabbi Dayan.

“However, if the time element was not an essential aspect of the order, the customer cannot revoke the sale when the delivery was delayed because of uncontrollable circumstances.”

“Why does the uncontrollable circumstance not exempt the seller from his obligation when the issue is time bound?” asked Mr. Freilich.

Oness, uncontrollable circumstances, exempt a person from punishment or fines, or from an obligation that affects only himself,” explained Rabbi Dayan. “However, when there is a mutual agreement that affects two parties, the second party can claim he also committed only on the basis of the agreed terms. He should not lose if the terms were not upheld – for any reason. Uncontrollable circumstances can exempt the first person, but cannot obligate the second party. Thus, MME must refund the money.” (Mishpat Shalom C.M. 200:7)

“What if the time element was not stipulated, but clearly understood?” asked Mr. Freilich.

“Presumably, the same would be true,” answered Rabbi Dayan. “If the delay makes the merchandise unusable, it’s tantamount to damaged merchandise.” (See Darchei Mishpat 13:14)

“What if the time element wasn’t critical, but mentioned as a stipulation for the order?” asked Mr. Freilich

“The Taz might not allow cancelling such an order,” replied Rabbi Dayan. “However, the Shach [Nekudos Hakesef Y.D. 263:3-7; C.M. 21:3] writes that if the delivery arrangement was mentioned as a stipulation, if it was not upheld, even due to uncontrollable circumstances, the customer can refuse the shipment. Only if the order was placed without stipulation, and the terms of delivery were added later or not presented as a stipulation for the sale, is a claim of oness valid. His position is accepted by later authorities.” (See Nesivos C.M. 21:3; Pischei Teshuvah 207:2;)

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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