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The Jewish Ethicist  - Short Notice Cancellation

The Jewish Ethicist - Short Notice Cancellation

They cancelled a few hours before the party. Am I entitled to reparations?


Q. I'm a photographer. Recently someone cancelled on me only a few hours before a party, telling me that he hired someone else instead. Am I entitled to reparations?

A. When someone hires a worker, the expectation on both sides is that the work will be performed as agreed and paid for as agreed. But life is full of surprises, and things sometimes don't work out that way. Then the sides are stuck trying to figure out a fair arrangement in the new and unexpected reality. The principles of fairness in this situation are so important in Jewish law that an entire chapter of the Talmud is devoted to them.

The guiding principle is set out in the mishnah at the beginning of the chapter: "Anyone who deviates [from the original agreement] has the lower hand, and anyone who reneges has the lower hand." (1) Having the lower hand means that they are responsible for ensuring that the other side is no worse off than if the change or renege never took place.

There are two conditions needed for reparations to be due. One is that there is an actual loss. The Talmud states: "One who hires workers and they misled the employer, or the employer misled them [by reneging], they have [no claim but] only resentment. When does this apply? When they didn't go. But if they went . . . he must give them their full salary." (2)

The commentators explain that "if they went" is only an example. Typically once the workers go to the site they can't find work for that day, but if the job is cancelled before they go, they can. The general principle is that whenever enough notice is given for the workman to find alternative work there is no loss and no claim. Likewise if he wouldn't have found any work even had he not been hired, the worker is not entitled to recompense unless he actually went to the workplace, which is considered beginning the workday. (3)

The other condition is that the employer is exempt in the case of duress. The example in the Talmud is as follows: "When someone hires workers to plow and then rain came and filled the field with water: If he surveyed the field in the evening, the workers lose; if he did not survey the field, it is the owner's loss." (4)

In this case the employer has to make up your loss, but not the full amount.

The guiding principle is that if the owner made every effort to make sure the work still needs to be carried out, but due to an unforeseeable duress the task becomes impossible at the last minute, the owner is exempt. He went to the field the night before, and saw that it was dry and that no storm was imminent.

In your case, a loss occurs if you turned down another job in order to free yourself up for this one, but now it is too late for you to find work for that evening. In this case the employer has to make up your loss. In practice, he doesn't have to pay the full amount of your bill since by sitting home you lose the income but you save yourself significant effort and expense. The employer can deduct a reasonable evaluation of your benefit from being able to sit at home. (This is often assumed to be about half the salary.)

If you couldn't have found alternate work anyway, or alternatively if you can still find alternate work paying a similar amount, then the cancellation doesn't actually cause any loss. You are no worse than you were before, except for the effort of finding a new job or the disappointment of losing the old one.

That doesn't mean that cancelling an agreement should be taken lightly in such a case. The mishnah states that the worker is justified in being resentful of the employer's thoughtless behavior. Some authorities state that this may be considered unfair dealing (mechusar amanah). (5)

SOURCES: (1) Babylonian Talmud Bava Metzia 76a. (2) Babylonian Talmud Bava Metzia 76b (3) Rosh commentary to this passage (4) Babylonian Talmud Bava Metzia 77a (5) Sema commentary to Shulchan Arukh Choshen Mishpat 333:1

The Jewish Ethicist presents some general principles of Jewish law. For specific questions and direct application, please consult a qualified Rabbi.

November 17, 2007

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Visitor Comments: 2

(2) Yohanon, November 22, 2007 5:57 AM

Verbal contracts of little/no value

Anonymous wrote "2) You specify in the making of the deal, even if its just a verbal contract, that IF the client wishes to change their mind - they MUST notify you within __X__hours/days or whatever of the date. If not, you expect to be paid in full for your services."
Courts don't like verbal - she said/he said - contracts: get it in writing. A cancellation fee is appropriate as Anonymous suggested. Many high-price professionals (doctors, lawyers, even CPAs) charge no-shows if the client fails to cancel before "n" hours/days before the appointment.
As to the photographer's specific situation, it sounds as if the employer had a tentative deal with another photog and had the writer as a back up (much as people doublebook airline tickets - for which there is a cancellation fee!).

(1) Anonymous, November 20, 2007 9:24 AM

Here's another idea

Being a free-lance musician who's done his share of private parties - I can sympathise with the photographer.

UNLESS his rates were really "outrageously" high there's no justifying a client dumping him only hours before the gig. [And whatever his fees be -- I would imagine that he announced them ahead of time to the client anyway - so they knew what they were getting when they entered into agreement.]
I have a good frd who's a french lawyer who told me something I never forgot:
"En France, ce qui n'est pas dit, n'est pas du". Translation: "that which is not stated is not owed."
So to avoid future circumstances such as these - here are 2 possible suggestions:
1) You ask for a non-refundable deposit up front which will only be returned in a case of "acts of God" type circumstances (unforeseen weather, sickness or death, etc). If they cancel for any other reason just hours before the gig, you keep the deposit.
2) You specify in the making of the deal, even if its just a verbal contract, that IF the client wishes to change their mind - they MUST notify you within __X__hours/days or whatever of the date. If not, you expect to be paid in full for your services.

This kind of situation is very difficult as well as disagreeble for free-lancers in any domain. But with a bit of communication and foresight - future damages can be limited.

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