Shabbat Parashat Vayeira 5766

P’ninat Mishpat

Canceling Publishing Contract Due to Breech of Contract- part II (based on Piskei Din Rabbani’im, vol. VI, pp. 116-131)

Case: An author made a binding agreement with a publisher. The publisher received the right to sell the book and was required to pay royalties to the author as editions were published. The publisher was far behind in his payments, citing large debt. The author died, and his inheritors want to nullify the contract because it was breeched or to use the book’s rights as a means of payment. [Last week, we showed that the author was unable to cancel the agreement. Now, we will address whether the agreement obligates the inheritors.]

Ruling: The Rambam (Sh’luchin V’Shutfin 5:11) rules: “One of the partners or those involved in an investment who died, the partnership or the investment is null even though they made a provision that it was for a set amount of time, for the money already went into the domain of the inheritors.” The Shulchan Aruch and Rama (Choshen Mishpat 176:19) accept this opinion. The S’ma (ad loc.: 3) explains that the live partner can claim that he agreed to the partnership only with the father, whom he liked working with for whatever reason, not with the inheritors. He continues that the inheritors can also claim that only their predecessor agreed to work with the live partner, but they do not want to. Other, authoritative Acharonim corroborate this approach.

There seems to be reason to distinguish between the case of partners and our case. Here, there isn’t an ongoing relationship. Rather, the publisher obtained the rights to publish and distribute the book and pay the author or his inheritors. However, we must examine the following discussion. Rishonim ask on the aforementioned halacha from the gemara (Ketubot 34b). The gemara says that if one lends a cow to his friend for a certain amount of time and then dies, the borrower can use the cow for the allotted time. This seems to contradict our rule that financial relationships end with the death of one party. The Beit Yosef (CM 176) cites the following answer. One must distinguish between a case of one who only has to watch the object on the inheritors’ behalf and one where the inheritors’ money is invested in the hands of someone whom they did not chose. The latter requires greater trust. Our case seems more similar to that of an investor, as the publisher has to do his job efficiently in order for it to be fully profitable for the author and his family.

However, in the final analysis, the sources indicate that the main distinction is as follows. When one acquires rights, whether permanently or for a given time, the recipient can use those rights even after the death of the one who authorized the deal. When the agreement only creates a working financial arrangement, the inheritors can cause the arrangement to cease. In the case of the publishing agreement, it is considered that the publisher acquired rights and the inheritors cannot cancel the agreement.

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