Shabbat Parashat Pekudei | 5768
Payment for "Kashrut Questionable" Affair
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Question: X hired Y to cater a mehadrin (specially strict level of kashrut) affair. Due to a mix-up, Y rented utensils (=keilim) from a service that he was only slightly familiar with. Before the affair, X found reasons to believe that the utensils’ kashrut was suspect, which was confirmed afterward. X wants all his money back, citing internal embarrassment that he caused his guests to eat non-kosher food. Y, who had offered to compensate by providing some free catering, is no longer willing to return money due to X’s alleged harassment. What does halacha have to say about this?
Answer: [The response is based on the information provided.] Apparently, those who ate from the questionable keilim violated no Torah prohibition. Involved discussion of this question’s kashrut element is beyond this presentation’s scope, but the most pertinent point follows. If the taste given off by a k’li has a negative impact on the food with which it came in contact, which is assumed if the k’li had not been used in 24 hours, the food remains kosher (Yoreh Deah 103). One who is unaware of the recent use of a non-kosher k’li can assume that food heated in it remains kosher because it was likely not used that day and, even if it was, the taste may combine negatively with the new food (see Shulchan Aruch, YD 122:7 with commentaries). However, it is rabbinically forbidden to use a non-kosher k’li even if it was not used within 24 hours in a manner that it may give off taste (Avoda Zara 76a).
If one sells another Jew non-kosher food without disclosure, the buyer can void the sale (Shulchan Aruch, Choshen Mishpat 234:3). The mishna (Bechorot 37a) says that even if the buyer ate the food and thus cannot return it to the seller, the seller must return all of the money. Rashi (ad loc.) posits that this is a penalty against the seller, prompting the Shach (YD 119:25) to say that this would not apply if the seller was unaware of the problem. The S’ma (234:4) adds that any benefit the buyer received was counteracted by the disgust of eating non-kosher food.
The Shulchan Aruch (ibid.) says that if the prohibition on the food was only rabbinic, the seller does not have to return the money when it was eaten. Although the Pri Chadash (YD 119:24) says the buyer recovers the price difference between non-kosher food and that which he paid, most poskim say that the seller returns nothing. How can the seller withhold the kashrut problem and end up getting a higher price than the food’s market value? The Maharit Algazi (Bechorot 5:51) explains that since the buyer got the same benefit as if it had been kosher and would have anyway paid the price of kosher food (and the seller did lose when the buyer ate it) he must pay the planned price of the enjoyment. The Shach (ibid.:27) says that when the Rabbis instituted food prohibitions, they stipulated that the prohibition should not cause the extracting of money between litigants.
According to the Maharit Algazi, ostensibly since X was willing to pay the amount he did and benefited as if it were mehadrin, he should not get any money back. However, the Shach’s novel idea to treat rabbinically non-kosher food like kosher food regarding money is limited. When one pays extra for a special feature, whether it be for “environmentally friendly” or for mehadrin, he should not pay the higher price if he received instead something standard. We should consider also that since X was troubled already during the affair about the kashrut questionability, he did not get the feeling of security that people who want mehadrin pay for. Despite the reasons to return this extra amount of the money (and the Pri Chadash’s aforementioned minority opinion), it is difficult to extract money from Y. However, it is appropriate, based on compromise, for Y to return the difference between kosher and mehadrin (approximately 10%), as Y was originally willing to do.
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This edition of Hemdat Yamim is dedicated in loving memory of
Gershon (George) ben Chayim HaCohen Kaplan and
R ' Meir ben Yechezkel Shraga Brachfeld
Hemdat Yamim is endowed by Les & Ethel Sutker of
Max and Mary Sutker
and Louis and Lillian Klein, z”l.