"Mazal Tov!" Ezra Green announced to his brother, Moshe, before Shabbos. "We had a baby boy this afternoon at 2:36."
"How wonderful! That means..." Moshe responded with a pause, "IY"H the bris will be on Rosh Hashana?"
"That's right," said Ezra. "It's a three day Yom Tov, but we'd love to have the immediate family." However, even "immediate family" was a small crowd and came to thirty, k'nayn ahara.
"How are we going to handle this?" Mrs. Green asked her husband when she returned from the hospital. "Thirty people for seven meals means 210 servings!"
"I ordered eight deli platters from the local deli," said her husband. "I also spoke with the family and everyone will bring something. Your sister agreed to coordinate the food."
The night before Rosh Hashana, Mrs. Green was talking with her sister. "The food's all arranged," said her sister. "Mommy is making three roasts and rice, Ezra's mother is making chicken and kugels, Moshe already bought deli platters..."
"Wait," said Mrs. Green. "I think Ezra ordered deli platters from the local deli."
"Tell him to cancel, then," said her sister. "Moshe can't return his anymore."
Ezra called the deli store in the morning. "Someone else already bought deli platters for us," he explained. "I'd like to cancel our order."
"I already prepared your platters," said the deli owner. "What am I going to do with them now? If you don't take them they will not be fresh after Yom Tov. "
"Can you sell them?" suggested Mr. Green.
"I doubt it," said the deli owner. "I prepared extra for Rosh Hashana, in addition to your order."
"I'm really sorry, but I can't deal with this now," said Mr. Green. "We're having loads of guests and the house is nowhere in order."
"All right, Mazal Tov," said the deli owner. "I'll hold the platters and sell what I can. I suggest we meet with Rabbi Tzedek after Rosh Hashana regarding the order."
"Fine," said Mr. Green. "Shana Tova!"
The following week, Mr. Green and the deli owner sat down with Rabbi Tzedek and asked whether he had to pay for the order.
Rabbi Tzedek ruled: "If the deli owner was not able to sell the platters and suffered a loss, you must pay him for them." (C.M. 333:8)
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Rabbi Tzedek then elaborated: "This ruling might seem obvious, but its rationale is fascinating. Although a worker who completed his job faithfully must be paid fully, whether the employer benefited from the work or not (335:3; 336:1), the deli owner was not hired or contracted to do labor. There was only an agreement to buy his finished product, the deli platters. (Nesivos 333:15)
"Moreover, this agreement was only verbal; no act of acquisition was made on the platters, and even money wasn't given. The platters still belong to the deli. While generally a person should honor even his verbal commitments, this is not sufficient basis to obligate you to pay if there is truly no longer a need. (204:7,11; Chasam Sofer C.M. #102) Why, then, must you pay?
"The Rosh (Respona #104:6) bases this ruling on dina d'garmi, the requirement to pay for directly caused damage. Since you instructed the deli owner to prepare the platters, and he invested his time, effort and materials based on your words, you are considered as having caused him damage if he cannot sell them.
"Thus, the obligation to pay is not based on salary or sale, but on damage. What emerges, therefore, is that if the deli owner can sell the platters to someone else without a loss, he has no claim against you. Similarly, if he can sell the platters for a reduced price, he can claim only the difference. According to SM"A (333:29), this is true even if it would entail some effort on his part. Furthermore, if you cancelled the order for reasons beyond your control, such as if the baby unexpectedly became yellow or got sick and the bris was delayed, you would not be obligated to pay for the deli platters.
"However, if the store has a defined cancellation policy for orders, or if there is a clear minhag hamedina (common commercial practice) otherwise, it would be binding, as with any other monetary agreement."