PART I: The Saga of the Expired Ticket
Two yeshiva students, Beryl Bernstein and Aaron Adler*, make an appointment to discuss a financial matter with me. Thank G-d, there is no ill feeling between them, just a practical question regarding who is required to pay for a plane ticket. Here is the background to the story:
Beryl and Aaron were taking a brief trip to visit their families. Beryl purchased a round trip ticket, whereas Aaron had the return ticket from his previous trip and was planning to purchase a ticket back to Yeshiva from home. All went well on the trip there; however, shortly after their arrival, Beryl took ill and realized that he would be unable to return to yeshiva on the flight he had originally booked. The travel agent informed his parents that although it was impossible to transfer the ticket to a later flight, he could rewrite the ticket in someone else’s name with only a small transfer fee.
Beryl called Aaron, asking him if he had as yet purchased a ticket back, which indeed he had not. Aaron discussed the matter with his parents, who decided to help out the Bernsteins, since Aaron needed a new ticket anyway. Beryl’s parents instructed the agent to change the name on the ticket while leaving the billing on their credit card. The Bernsteins agreed that they will pay the change fee whereas the Adlers will compensate them for the price of the ticket.
All was fine until the morning of the flight. Aaron woke up sick; clearly he would not be flying today. The Adlers contacted the issuing travel agent to find out what he could do with the ticket. He responded that he could transfer the ticket yet again but needed the Bernsteins’ approval to change the billing on their credit card. The Adlers tried many times to contact the Bernsteins to arrange the change of ticket, but were unsuccessful at reaching them. Unfortunately, the ticket went unused and became worthless.
Later, both Aaron and Beryl purchased new tickets for the flight back to yeshiva. In the meantime, the Adlers have not yet paid the Bernsteins for the first ticket and have the following question: Must they pay for the ticket which they were unable to use, thus requiring them to pay for two tickets? In their opinion, all they were trying to do was to help out the Bernsteins from having the ticket go to waste, although unfortunately it did anyway. The Adlers contend that they had found a cheaper ticket and chose to help out the Bernsteins even though it was more expensive. They feel it unfair to expect them to compensate the Bernsteins for attempting to do a favor that backfired, particularly since they tried to reach the Bernsteins to make sure the ticket did not go to waste.
On their part, the Bernsteins contend that other people were interested in using Beryl’s ticket, and that they sold it to the Adlers for the Adlers’ benefit. Furthermore, they note that they were not home the day the Adlers called because they were away at a simcha and that they did have their cell phones with them.
Are the Adlers obligated to compensate the Bernsteins for the unused ticket or not?
PART II: Who Appears Before the “Judge”?
Aaron and Beryl came to me with the request that I resolve an issue germane to the payment of an airline ticket. Before hearing details of the case, I asked them who were the parties to the litigation. Were Aaron and Beryl assuming responsibility to pay? Both fine, young gentlemen respond that the parents are assuming responsibility. The bachurim noted that there is no ill will between the families, simply a true desire to do what is halachically correct. Both sets of parents felt that a rav near their sons’ yeshiva would be the easiest way to resolve the issue in an amicable and halachically proper fashion.
I pointed out to Aaron and Beryl that while asking a rav to clarify the halacha is indeed an excellent way to resolve the matter, at the same time, the situation was in one way somewhat unusual. Ordinarily, when two parties submit litigation to a rav or a Beis Din, each party makes a kabbalas kinyan (to be explained shortly) obligating them to obey the decision of that particular rav or Beis Din. In the modern world, the two parties also typically sign an arbitration agreement that they are accepting this rav’s or Beis Din’s adjudication. Although halacha does not require signing an arbitration agreement, this is done nowadays in order to provide simple proof that both parties accepted the particular Beis Din’s authority and to strengthen the Beis Din’s power as an arbitration board under secular law. (In most locales and circumstances, a civil court will accept the decision of a Beis Din as a form of binding arbitration.)
WHAT IS A KABBALAS KINYAN?
A kabbalas kinyan means performing an act that obligates one to fulfill an agreement. For example, prior to the signing of a kesubah, the chosson makes a kabbalas kinyan, usually by lifting a pen or a handkerchief, thereby demonstrating that he has accepted the responsibility to support his wife. Similarly, when appointing a rav to sell one’s chometz, one performs a kabbalas kinyan to demonstrate the authorization of the rav as one’s agent.
In our instance, a kabbalas kinyan demonstrates that one accepts the authority of this particular rav or Beis Din to rule on the matter at hand.
HARSHA’AH – POWER OF ATTORNEY
Beryl asked me, “Can’t I represent my parents in this matter?”
I answered him, “Certainly. One can appoint someone to represent him in halachic litigation by creating a harsha’ah. For example, let us say that it is impractical for the suing party to appear before the Beis Din in the city where the defendant resides. He can sue by appointing someone on his behalf and authorizing this by executing a harsha’ah, the halachic equivalent of a power of attorney.”
I returned to the case at hand.
“Therefore, in our case, the two of you could represent your parents by having them execute harsha’os appointing you as their respective agents.”
Aaron piped up: “I don’t think anyone really wants to make a full din torah out of this. I think we simply want to know what is the right thing to do according to halacha.”
Technically, without execution of harsha’os, either side could later claim not to have accepted the decision of the rav or Beis Din involved, and could avoid having the litigation binding. Nevertheless, in our situation, both parties seemed honorable and simply wanted to know the halacha. Both sons said that their parents had requested that they jointly ask a shaylah and that they would follow the decision. Thus, although following the strict rules of litigation requires both a harsha’ah and a kabbalas kinyan from each side, I elected to handle the situation informally, calculating that this would generate the most shalom.
PART III: Are They Parties or Participants?
Why didn’t I have the two bachurim each make a kabbalas kinyan binding themselves to my ruling?
Such a kabbalas kinyan would have no value, since the person making the kabbalas kinyan binds himself to accept the authority of the specific rav or Beis Din. However, the sons here are not parties to the litigation and therefore their kinyan would not bind either themselves or their parents unless they had previously executed a harsha’ah.
PART IV: Opening Arguments
Let us review the points made by each of the parties: The Adlers claim that they were simply doing a favor for the Bernsteins. They were willing to absorb a small loss for the sake of the favor, but certainly had no intention of paying the Bernsteins for a ticket that they would never use. They also feel that since they could not reach the Bernsteins to change the ticket, the Bernsteins were partially responsible for the ticket becoming void.
The Bernsteins are claiming that the Adlers purchased the ticket from them and that what occurred subsequently is exclusively the Adlers’ predicament and responsibility. Furthermore, the Bernsteins contend that the Adlers did not really save them money because there were other people who would have purchased the ticket from them. And regarding their unavailability, they were at a simcha, which is certainly a reasonable reason to be away, and they were reachable by cell phone. It is not their fault that the Adlers did not ask them for cell phone numbers.
Do the Adlers owe the Bernsteins for the ticket that they did not use? After all, the Adlers point out that they were doing the Bernsteins a favor, and that they tried to contact the Bernsteins before the ticket became worthless. Having discussed the background to this “litigation,” we need to address the halachos pertinent to the case.
PART V: In the Judge’s “Chambers”
At this point, we can consider the arguments and counter-arguments of the two parties. The Adlers’ contention that the Bernsteins were unavailable does not affect the issues at stake. The Bernsteins are not obligated to be accessible at all hours of the day, and cannot be considered as having damaged the Adlers through their unavailability. Thus, whether the Bernsteins could have been reached by cell phone or not, whether they should have remembered to supply the Adlers with their cell phone number or not, and whether they were away to celebrate a simcha or not, are all not germane to the issue.
WHO OWNED THE TICKET?
Essentially, the Adlers are contending that they assumed no fiscal liability for the ticket unless they used it, and were simply attempting to help the Bernsteins. Does this perception reflect what happened?
Certainly, if the Adlers had told the Bernsteins that they were not assuming any responsibility for the ticket unless they actually used it, they would not be liable for it. However, they did not say this when they arranged for Aaron to obtain the ticket. Rather, they had agreed that the ticket be reissued in Aaron’s name without any conditions.
The issue we need to resolve is, “Who owned the ticket when it became invalid?” Here we have a somewhat complicated issue, since the ticket was reissued, yet it remained billed to the Bernsteins’ credit card.
Someone who purchased an item that was subsequently damaged cannot claim a refund from the seller unless the seller was guilty of deception (Bava Metzia 110a). Once the item has changed possession, any damage that occurs is the loss of its current owner and he cannot shift responsibility to the previous owner. This occurrence is called mazalo garam, his fortune caused this to happen (see, for example, Rashi to Bava Metzia 103a, s.v. azla lei). This means that each person has a mazel that will bring him certain benefits and losses during his lifetime, and one must learn to accept that this is Hashem’s will. Specifically, the Gemara refers to children, life and sustenance as three areas dependent on mazel (Moed Katan 28a). [One can daven to change one’s mazel, but that is not today’s topic (Meiri, Shabbos 156).] Thus, if the Adlers indeed owned the ticket, the resultant loss is theirs, and they should chalk it up to Hashem’s will. (Colloquially, we very accurately refer to this situation as being bashert.) Thus, what we need to determine is whether the Adlers had halachically taken possession of the ticket.
According to halacha, for property to change hands there must be not only the meeting of the minds of the buyer and the seller, but also the performance of an act, called a maaseh kinyan, that transfers the item into the possession of the buyer. Although both the buyer and the seller agreed to transact an item, it does not actually change possession until the maaseh kinyan transpires. Therefore, if the item is damaged after the two parties agreed to a deal, but before a maaseh kinyan transpired, the seller takes the loss since the item was still his when it became damaged. Determining the exact moment that the act of kinyan takes place and that therefore the item changed possession is therefore highly significant.
[It is important to note that, although a deal may not have been finalized without a kinyan, it is usually forbidden to back out once the two parties have made an agreement. This is based on the verse in Tzefaniah (3:13) which states that a Jew always fulfills his word (see also Pesachim 91a; Bava Metzia 106b). Someone who has a question whether he is bound to an agreement must ask a shaylah to find out whether he may abandon the deal.]
What act creates the kinyan? There is a vast halachic literature devoted to defining what exactly constitutes a maaseh kinyan and under which circumstances these kinyanim work. For example, the methods of transacting real estate are quite different from how one acquires chattel or food.
How does an airline ticket change possession? Obviously, there is no Mishnah or Gemara discussion teaching how one acquires an airline ticket.
In reality, we should first analyze, what exactly does one purchase when one buys an airline ticket? The ticket itself is only a piece of paper, and is even less if it is an e-ticket and has no intrinsic value.
What one is purchasing is the right to a seat on a flight, and the ticket is basically a receipt verifying the acquisition. If our analysis is correct, then the purchase of a non-refundable ticket is essentially buying a right to a particular flight. So we now have a halachic question: How does one acquire such rights and how does one transfer those rights to someone else?
One way of acquiring property is called sutimta, which means using a method of acquisition that is commonly used in the marketplace. Since society accepts this as a means of acquiring property, halacha recognizes it as a kinyan. For example, in the diamond trade, people consummate a deal by a handshake accompanied by the good wishes of “mazel ubracha.” Since this is the accepted method of transacting property, the kinyan is binding and halacha recognizes the deal as complete.
Based on the above, we can reach the following conclusion: When the Bernsteins instructed their travel agent to transfer the ticket to Aaron’s name, they were asking him to change the ownership of the right to the seat on that flight from Beryl to Aaron. Once the agent followed up on their instruction and reissued the ticket, the right to that seat became Aaron’s, and the Bernsteins are exempt from any fiscal responsibility. Although Aaron was unfortunately unable to utilize this right and it became void, there is no basis to making the Bernsteins pay for the ticket once it was transferred.
Therefore, the Adlers should accept that Aaron’s illness and the resultant loss of the ticket is Hashem’s will which we do not challenge. Since the loss of this money is attributed to mazel, had the ticket situation developed differently they would have suffered this loss in a different, perhaps more painful way, and they should not be upset at the Bernsteins for the financial loss.
Knowing how some people react to these situations, there is a good chance that the Adlers may be upset at the Bernsteins for what happened, even though this anger is unjustified. To avoid this result, I suggested that the Bernsteins offer some compensation to the Adlers for the ticket. It is very praiseworthy to spend some money and avoid bad feelings even if such expenditure is not required according to the letter of the law.
A Jew must realize that Hashem’s Torah and His awareness and supervision of our fate is all encompassing. Making this realization an integral part of our lives is the true benchmark of how His kedusha influences us personally.
*Although the story is true, all names have been changed.