A group rented a two-hour slot at the local matzah bakery. We contacted Moshe, an expert at inserting and removing matzos from the oven, and for a fee he agreed to join us. He came an hour late, so we only used the second hour of our slot. The owner insists on payment for two hours.
Q: Are we obligated to pay for both hours? If so, is Moshe obligated to reimburse us for the loss he caused by his lateness?
A: This week we will focus on the question of whether you must pay the bakery for the two-hour slot when you only used one hour. There are several types of agreements you may have made with the owner.
1. The agreement may have been made orally and never confirmed with a kinyan. Not paying for the unused hour in such a circumstance does not constitute a material loss; it is a loss of rental income. Such a loss is categorized as grama (indirect loss), even if the owner had other groups that would have rented the factory during that time. The loss he suffers is potential income rather than out of pocket, and one who causes such a “loss” is not obligated to pay the “damaged” party (C.M. 363:6). (For nuances that are beyond the scope of our brief discussion, see Shaar Mishpat 312:2; Erech Shai 312:14; Nachalas Tzvi 292:7; and Mishpat Shalom 176:4).
2. You may have given the owner a deposit. Poskim debate whether a deposit is considered a kinyan that confirms the agreement, or is given simply as a nonrefundable deposit to secure the time slot (Pischei Teshuvah 207:13 and Minchas Pitim 190:10). The matter is subject to how people understand the intent of the deposit.
3. Even if the deposit constitutes a kinyan, the group may not be obligated to pay for the unused hour since it was caused by circumstances beyond their control — oness [whether this is oness is obviously debatable]. If one hired a worker for the day to water his field and at midday the river dries up, the employee is not paid for the second half of the day except when the employer knew that the river dries up and the employee was unaware of that fact (Bava Metzia 77a).
There is a disagreement whether the same guidelines apply when leasing real property. For example, if a tenant dies, are his heirs obligated to pay for the remainder of his lease? Some authorities see the landlord as a “worker” who suffers the loss when due to circumstances beyond anyone’s control he will not be able to complete the term of his employment. Others see the lease of land as a sale for the duration of the lease, and as such the terms of the sale must be completed even though circumstances changed and the lease is no longer necessary (C.M. 334:1).
In your case, if you did not pay up front, it is possible that you are not obligated to pay for the unused hour. If you paid up front, the owner is not obligated to refund the unused portion — due to the opinion that maintains that the lease of land is a sale and since paying up front indicates an understanding that you will not receive a refund even if circumstances dramatically change (see Shach, C.M. 334:2 and Erech Shai).
Next week, iy”H, we will address the question of whether Moshe is obligated to pay if the group suffered a loss.