Wedding Hall Blues - Broken Eng and Hall wont Give $ Back

amother

Sat, Jun 08 2013, 4:37 pm

I'll try to make a long story short.

Our first DD had a broken engagement so we had some experience with it. She later got married for real and we used [a specific hall] with no problems. When we did it the first time, the mechutan made the contract with the hall.

So now our second DD got engaged and we wanted to use [that hall] again. The mechutanim were from the US so we needed to deal with the hall. Well the contract says that if you cancel for any reason, you forfeit the deposit (10,000 shekels). Well we already went through a broken engagement so even though we don't expect it to happen again my DH wants to be safe. So he asks what happens if there is a broken engagement and you get another client and don't lose money. Why should we lose money? Al the guy would say is: nedaber al zeh (we'll discuss it then).

Well we don't think its gonna happen, right? So Dh signs the contract with an oral stipulation that just in case it happens and you get other ppl, we don't lose our deposit.

Well, it happened. Broken engagement (dd just plain freaked out!)

Any case, Dh told [the hall] that we need to cancel and they could get another family for the date. He reminded them that he made a condition that if they get other ppl, we don't lose our deposit and all the guy would tell us iis that this is for the menahel to deal with. So dh says, ok have the menahel call me (he wasn't in then).
Then they asked us to send a fax to release the date so DH gladly sent a fax where he now put his stipulation in qwriting. They immediately filled the date which dh says is an ipso facto agreement to the condition. Dh went to ask for our money back and he was shafted to an elusive menahel who never returned his calls. He just sent a fax that says that according to the contrasct we forfeit the deposit. Dh faxed back (and checked with a lawyer we've used) that if they acknowledge and act on our release fax, it is just as much a contract as the first one.

Any case, they never responded so dh had to open a tik in a BD which he did last week.

This is so frustrating because we really deserve our money back .The breakup is from our side so the loss would be only ours and not the mechutan. We hardly had enough money to make a wedding as it is (and we have many more children, B"H) and this is breaking us.

Anyway I am writing this for 2 reasons:

1 I want to know if anybody else had such an experience and what they did?

2 I want to warn ppl that since it could happen, even though nobody wants to talk about it when they are making a simcha , you really need to be careful and cover all your bases. Maybe other halls are more reasonable but [the hall] seems to be taking advantage of us.

Din Torah should be in a week and a half. Maybe daven for us. I'll let u know what happens.

[Name of hall deleted. -merelyme, as mod]

Liba

Sun, Jun 09 2013, 4:40 am

LisaS wrote:

I am so sorry for everything you are going through!

Shouldn't it be in writing somewhere what their cancellation policy is? You can't be the first one this happened to. It's strange that they were vague when you asked about it in advance. They should have told you up front if there is a cancellation fee or what-not.

May things go smoothly from now on and may your daughter be zoche to marry her bashert at the right time (and at the right place).

They had their cancellation policy in writing. The policy was, cancel and you forfeit your deposit. OP signed it, but tried to get an verbal agreement that they wouldn't keep the written agreement if they had to break it. The person at the hall actually refused to give the verbal agreement that they wouldn't keep the written agreement, just said to worry about it if it happens.

The rest I am not understanding. If your DH asked if instead of forfeiting the deposit he could find someone else and they said "we'll talk about it then", did he find someone else? It sounds like he just let the hall find someone else and then expected his money back anyway. If he let the hall find someone else, then why would they release the deposit?

What was the second fax? If it was authorizing the hall to look for a different client that night, how would that release you from paying the deposit? If you had a lawyer look at it, and they thought it helped you legally, then it must not be what I am understand from your post.

They have to have a signed document saying you aren't going to be using the hall before they book another client or they could chv"sh end up with two chassunas the same night in the same room, not a good idea. If that is what the paper is, then how would that change your first contract?

vicki

Sun, Jun 09 2013, 4:53 am

I think Liba, correct me if I'm wrong OP, the point was not so much who found the replacement, but that a replacement was found so that the hall loses no money.
The OP's dh was told by his lawyer that since, when signing the fax, he wrote in that he is releasing the day and therefore will get his money back, and the hall signed that day away to another family, the action of re-using the day on the hall's part is in itself another contract from which follows that the hall must return their deposit.
I don't know what is correct halachically but I feel that keeping the deposit at this time is just not nice. I don't think the hall had to actively recruit a new baal simcha. They come to him and ask about available dates.
The OP probably should not have agreed to release the date until another agreement was reached regarding returning the deposit. The hall holds all the cards now.

amother

Sun, Jun 09 2013, 4:53 am

OP here.

I want to answer to LisaS and at the same time make a note of the fact that merelyme apparently decided that I cannot identify the hall.

I have to respect her decision but I still need to say that this is a very popular hall in Yerushalayim that is in big demand. So it is very hard to argue with the terms of their contract because wedding halls here are a “sellers market”.

Their contract is very strict and says that if you cancel, you lose the deposit (I wrote this before). But my DH challenged it on the spot and said he would not accept this if the hall fills the spot and doesn’t lose anything. The man only said we would discuss it if it happens but wouldn’t let us put in a change in the contract. My Dh said he’ll sign it since anyway it shouldn’t come to this but we will leave it with a verbal understanding just in case.

Well, “just in case” happened and my DH even puut this condition in writing in the fax he sent which they acted on (and therefore approved).

So that’s the story. Thank you very much for your kind brachah and We hope this doesn’t happen to anybody else.

shalhevet

Sun, Jun 09 2013, 7:29 am

I'm so sorry you lost money, especially in this way. I hope your dd finds her beshert very soon.

However, I don't think you are necessarily correct that the hall is in the wrong. You said yourself it is a sellers' market (I'll take your word for it, since I don't know), which means it's up to you to be cautious. Really, in business, a contract is a contract, and if it isn't in writing, it pretty much doesn't exist. The hall didn't even give a verbal commitment to refund your deposit (nedaber al zeh does not mean yes).

AFAIK, a deposit serves two purposes - one is for the 'losing' side to cover their costs, though I can't believe they lost 10,000 shekels by changing clients for that date (but it did cost them something - they spent time with you, drawing up a contract, listening to your requests etc.).

The other purpose of a deposit is to create a commitment. Let's say a hall asked for a deposit of 100 shekels. Many people might be tempted to pay that just as an 'in case'. Maybe they would book 5 halls while they actually choose, and not care that they lose 400 shekels. Maybe part of the steep deposit is to avoid time wasters.

The other thing is, do they charge more if they don't find anyone else for that date? Let's say they lose 1000 shekels if they do find a replacement, and 50,000 if they don't. So maybe this is a compromise - we will always only take the deposit, even if this is a case when we lose more. Meaning everyone knows the risk ahead of time when they book, without surprises.

So sorry again for all your agmas nefesh. But, please, any other time you sign a contract make sure the contract is exactly what you are agreeing to, and don't expect either side not to keep to it.

amother

Sun, Jun 09 2013, 8:15 am

yummymummy wrote:

From what you've written in your post I see no reason why the hall should not refund your deposit. They have suffered no monetary loss here. Have you consulted with a Rav? What did he say? Has the hall agreed to come to the Din Torah?

and from what I read, from the halls perspective, I see no reason why the hall should refund her money. They signed a contract, took up the hall workers time and energy, kept other people from booking the hall all of this time, and have an obligation to follow through what they signed they would... They never said they would give the money back and they never had any intention of doing so.

Barbara

Sun, Jun 09 2013, 8:43 am

yummymummy wrote:

Actually, you have no way to know whether or not they suffered a monetary loss. For example, they may not have been able to rent the facility for the same price they charged the OP, given that it is much closer to the date. (IME, discounts under those circumstances are not uncommon.)

OP is rather lucky that they did re-rent the hall. Otherwise, in light of the fax sent, the facility could have claimed that entire sum was due.

As someone else said, in the US, these provisions are common and quite fair. It balances the risk of cancellation.

yummymummy

Sun, Jun 09 2013, 8:52 am

Barbara wrote:

yummymummy wrote:

I assumed that the hall was able to rent the facility for the same price since they would have been quick to point out their losses to her husband when he called for a refund if that was not the case.

OP - please clarify this point as it makes a big difference in whether you should or will get all, part or non of your deposit back.

yummymummy

Sun, Jun 09 2013, 9:15 am

amother wrote:

yummymummy wrote:

What monetary losses did the hall suffer from OP's cancelation? If the hall's workers spent hours with OP going over a menu, table set ups, etc. then certainly they should be entitled to reimbursement for their time. Similarly if they had to advertise that they had a last minute cancelation in order to rent the facility they would be entitled to reimbursement for those costs as well.

If on the other hand they just told the next people who called to rent the facility that her date was free and were able to book the room for the same price OP was willing to pay why should they be able to keep the down payment? Her husband had no intention of forfeiting the down payment and made that clear when he signed the contract, perhaps this clause would be an asmachta?

Barbara

Sun, Jun 09 2013, 9:33 am

yummymummy wrote:

amother wrote:

yummymummy wrote:

He signed a contract that included the forfeiture clause. The fact that he did so with no intention of honoring his obligations is not relevant, particularly as the hall made clear that it would not enter into the agreement in the absence of the clause. That's rather like saying "I want to buy this car for $2,000," when signing a contract for $35,000, then complaining that the dealer wants more than $2,000.

If the hall had not been able to re-rent the space, would you be arguing that they were entitled to the entire sum, notwithstanding the forfeiture clause, because the hall would have lost a lot more money?

yummymummy

Sun, Jun 09 2013, 9:52 am

Barbara wrote:

yummymummy wrote:

amother wrote:

yummymummy wrote:

My point about her husband having no intention of fulfilling the clause related to the halachic concept of asmachta.

The SEFER HA'CHINUCH (Mitzvah #343) defines an Asmachta as any stipulation that is phrased as a penalty, even if it is not stated in exaggerated terms. The Chinuch agrees that an *exaggerated* commitment is also considered an Asmachta, even when it is not stated in terms of a penalty, as is evident from the Gemara.

This description of Asmachta is derived from a statement of Rabah earlier (66b). Rabah states that "any [statement of] 'if' is not binding" ("Kol 'd'Iy' Lo Kani"). This means that a statement such as, "If I do not [do a particular action, then I will have to do such and such]," is a form of a penalty and is deemed an Asmachta, and it is not binding.

I am not an expert in halacha which is why I asked if she had consulted a rav on this matter and what he had advised her.

If the hall was not able to rerent the space I believe she would potentially be on the hook for the entire amount. Even in the case of asmachta the defaulter might be required to pay for realized losses and as the hall is holding the money I believe they would be able to retain it under that view.

sorry for all the editing Very Happy

Last edited by yummymummy on Sun, Jun 09 2013, 10:05 am; edited 3 times in total

yummymummy

Sun, Jun 09 2013, 9:58 am

Liba wrote:

yummymummy wrote:

Her husband had no intention of forfeiting the down payment and made that clear when he signed the contract, perhaps this clause would be an asmachta?

Her husband was told that if he didn't agree to forfeiting the down payment and changed the original contract he couldn't reserve the hall. He signed that he would forfeit it, hence agreeing, after he was told he had no choice. His signature is worth nothing to you?

No, he was told "we'll talk later" which could very well mean "we'll see if we lose any money if you cancel later and discuss your refund then". The loss the hall is trying to mitigate against is monetary - no monetary loss, no reason to keep the deposit. The hall is also trying to ensure that they are dealing with a good faith customer, and as I've written above if they had not been able to find another renter not only do I think she would be on the hook for the deposit but potentially the entire amount as well based on the date of cancellation or other factors.

amother

Sun, Jun 09 2013, 10:09 am

Op here.

There is not much likelihood that the hall suffered any monetary loss whatsoever. It would only happen if the second party booked a smaller wedding (also not very likely).

Here there are many small details that make a big difference. One is that we only released the date on condition. This means that if the hall is not going to live up to the condition the date is not released and belongs to us. For this reason, my DH in a subsequent correspondence demanded the date back. We had ppl who were willing to take it from us. Thus the hall must either reimburse us or give it back to us. IOW, either the initial contract is in force or not. They can’t take our date and sell it to somebody else. We didn’t say “Here, why don’t you go ahead and sell our date and just keep the second down payment. We don’t mind.” DH actually to the man (not the menahel) that when they get new clients he expects them to make out the down payment to us and we will sign over our receipt to them.

An earlier poster asked how the cancellation fax would change the first contract? And the answer is just like any amendment to any contract which alters and clarifies the first one. In our case, according to the lawyer we asked, their acting on the fax validates it as an amendment to the contract with all its conditions.

As for asking a Rav, this is DHs department. Firstly, he is no am haaretz (Lakewood alumnus). Secondly, we have friends and neighbors who are dayanim and DH would never open a tik in BD (which costs money by the way) if he hadn’t discussed it with his chevra and knows where he stands halachically.

amother

Sun, Jun 09 2013, 10:19 am

Quote:

DH is convinced that it is an asmachta. The mazkir at the BD - not a dayan but a student of the dayaim - also thinks its a bona fide asmachta. Let's hope the dayanim agree.