We often invest time and money based on another person’s verbal commitment. A client flies to a distant city for an appointment with a high powered attorney. A bride and groom book a wedding hall and make purchases for their new home. A repairman buys parts for the appliance he was asked to fix. When things go as planned all is well, but what happens if things don’t work out as expected? If the attorney refuses to meet with the client, must he pay for the airline ticket? If the engagement is broken by one of the parties, must they pay for other side’s wedding expenditures? If the customer cancels the repairman, is he responsible for the parts purchased for the job?
Situations like these pose a challenge. According to halacha, a binding commitment usually requires a formal kinyan, an act demonstrating commitment. This is why we lift a handkerchief or pen when selling the chometz. Words, however, are not considered a kinyan. Therefore, although there is a moral obligation to honor a verbal commitment (mechusar amana), it is not enforceable in a Bais Din. As a verbal agreement is generally not enforceable, there is no liability for breaching it. Based on this concept, the attorney had no binding commitment to be available at the prearranged time. Likewise, if the couple only verbally agreed to marry and did not sign any documents (tenaim), all of the expenditures were made without a binding contract. The same may be true with the repairman as well. For this reason they should not be accountable for the losses incurred by the other party. None the less, there are instances where halachic sources hold individuals liable for a verbal assurance. In this article we will examine these sources and try to understand the parameters of such responsibilities.
The Ro”sh (d. 1327), in responsum 104,6, deals with a dispute between a craftsman and customer. The customer had ordered a custom-made item from a craftsman. However, when the item was ready, the customer declined to purchase it. The craftsman claimed that he could not sell it to anyone else and would suffer a loss. The Ro”sh ruled in favor of the craftsman. Although the customer never signed a formal contract, his verbal commitment directly caused a loss, and he is therefore liable.
Another example of this concept is a ruling of the Maharam Me’Ruttenburg (1215-1293) quoted by the Mordechai (1240-1298). The case involved two litigants that agreed to adjudicate their dispute before a distant Bais Din. One of the litigants did not appear at the agreed-upon time, and the question was whether he was responsible for the other party’s traveling expenses? The Maharam ruled that the party that did not appear must pay for the other party’s traveling expenses. Although the litigant never formally accepted liability for the other party’s expenses, he is still responsible because money was spent based on his representation that he will come. Both of these ruling are codified in the Shulchan Aruch.
The rulings of the Ro”sh and Maharam need explanation. As we mentioned earlier in this article, a kinyan is needed to create a binding commitment. Why is it that in these cases there is liability with words alone? While there are numerous explanations, one plausible approach is that of Rabbi Meir Aurbach (1815-1878) in his magnum opus Imrei Binah (Dayanim 21). He understands that the key factor in these cases is that the defendant clearly knew that the other party was completely relying on his word when he or she spent the money. For example, in the case of the Rosh the customer knew that the only reason why the craftsman is making this item is because he ordered it. Likewise, in the case of the Mordechai the litigant knew that the other party had no other reason to travel to that distant city other than to appear before the Bais Din with him. The Imrei Binah explains that by prompting another person to spend money solely because of his assurance, he is accepting responsibility for any loss (al p’iv ho’tzei). This is a unique form of responsibility that does not require a formal kinyan. It comparable to a guarantor who is responsible for a loan since the lender only extended the loan to the borrower based on his assurance.
According to the Imrei Binah, whether or not the attorney is responsible for the client’s ticket would depend on if it was clear that client was relying entirely on his assurance. If the attorney knew that the only reason why the client booked the ticket was to see him, by agreeing to give the appointment he is in essence taking responsibility for the ticket. However, if he had reason to assume that the client will be in town anyways, then there is no acceptance of responsibility and he is not liable. Likewise, if it can be assumed that the repairman ordered the parts just for this job then the customer is responsible when he cancels at the last minute. The same may be true with the engagement. By agreeing to marry it is understood that the other party will make many expenditures based on that assurance. Therefore, if one of the parties backs out at the last minute it is possible that they may be held accountable for the other party’s losses as long as such expenditures are the norm. The bottom line is that according to the Imrei Binah if money was spent solely because of the other party’s word, there may be liability.