“It’s a boy!” declared the doctor. “Mazel tov!”
When Mr. Bunim left the hospital, he began arranging the bris. His first call was to confirm the mohel. To prepare the food for the bris, he and his wife decided to go with their neighbor, who catered small events.
Three days before the bris, Mrs. Bunim noticed that the baby was slightly yellow. The mohel came by the following day and said, “The issue should resolve itself and we’ll probably be able to do the bris on time. However, if the yellow remains, the bris will have to be delayed. I’ll check again tomorrow evening.”
The following evening, the mohel came by. “Unfortunately, the baby is still yellow,” he said. “We have to delay the bris.”
Mrs. Bunim called her neighbor and shared the news. “But I already bought the food and did most of the cooking,” the caterer replied. “It’s not fair to tell me so late. I assume you’ll at least pay me for the food I bought and prepared.”
Mr. Bunim called Rabbi Dayan and asked, “Do we have to pay the caterer?
He replied, “The Gemara [Bava Meztia 77a] addresses the case of someone hiring workers and then uncontrollable circumstances make the job impossible. For example, workers were hired to dig a field, but it then rained so heavily that the field was swamped with water.
“Rava rules that the workers are not entitled to payment if the employer was unaware the field would be swamped by rain. If he knew the field tended to get swamped while the workers did not, he must pay them” [Choshen Mishpat 333:1; 334:1].
The Rosh [Bava Metzia 6:3] explains that when the employer and employee are equally informed or uninformed, we attribute the misfortune to the workers because hamotzi meichaveiro alav hare’aya [the burden of the proof is on the plaintiff]. They are responsible to stipulate that they expect payment even if the job becomes impossible due to an oness. However, if the employer alone is aware of the potential problem, he should have stipulated that the job is contingent on it being doable; if he didn’t, he accepted the risk.
“Moreover, when the workers already began working – as in the Gemara’s case, by walking to the field – the employer is obligated to pay them if he was aware of the problem, and that remains true if the workers had no other job they could have accepted that day [Sma 333:6; Shach 336:7].
“Thus, since you and your wife were aware that the baby was yellow and that the bris might be delayed – whereas the caterer was not – you are responsible to pay her. “Nonetheless, it’s not necessary to pay her the full fee. A certain percentage is deducted since ultimately she did not have other work that morning (k’polel batel) and some of the food and drink can be saved for a later occasion [Choshen Mishpat 334:1-2; Pischei Choshen, Sechirus 12:1-3].
“It’s advisable,” concluded Rabbi Dayan, “especially in situations prone to cancellations, to agree ahead of time on a clear cancellation policy in the contract.”