by Rabbi David Novak
Disclaimer: The opinions expressed here are that of the writer and do not necessarily represent the views of the Union for Traditional Judaism, unless otherwise indicated.
A friend recently asked me about the refusal of an airline to refund the money she paid for a flight she couldn’t take, which was because the event she had planned to attend had been cancelled due to the Covid-19 pandemic. In fact, since the flight was to go from Canada to the United States, the flight itself was cancelled due to the border between the two countries having been closed to traffic.
The airline claimed that this cancellation was because of the pandemic, which is an event they couldn’t have ever foreseen that it would ever occur. Therefore, they couldn’t have reasonably made provisions for its occurrence. They explained that for events they could probably anticipate and make provisions for its occurrence, provisions have been made, such as offering a refund for the fare the traveler already paid in advance, or offering the traveler a voucher for a future flight with that airline. My friend plans to sue the airline, most likely as part of a class action suit. Nevertheless, she asked me how her case might be decided according to Halakhah.
A quite similar case is discussed in Yerushalmi: Gittin 7.6/49a. A man paid his fare in advance to a boatman to ferry him across a river. However, before the trip could take place the river dried up, hence the trip over the waters of the river became impossible because there was no river left to be ferried over. Obviously, the passenger wanted the boatman to refund his fare. Just as obviously, the boatman did not want to refund it.
The case came before R. Nahman bar Yaakov, who ruled in favour of the boatman, arguing that the boatman had readied the ferry for the trip per agreement. The drying up of the river was an accident (ones) that impeded (ikkuv) his carrying out his agreement with the traveler. This was an accident the boatman couldn’t have prevented. It wasn’t his fault. Hence the boatman is not obligated to refund the traveler’s fare. Nevertheless, the text notes that had the case been brought before R. Shimon ben Lakish (and R. Ba), the whole transaction would have been declared null and void (batel), and the boatman would be obligated to refund the passenger’s fare.
The difference of opinion in this case is taken to rooted in a difference in principle between R. Yohanan and his disciple R. Shimon ben Lakish (Resh Lakish), who is followed by R. Nahman bar Yaakov in this case. R. Yohanan holds that when an untended, accidental factor (onsa) prevents an agreed upon transaction from actually taking place, it is as if nothing was done in advance (de-la avad). Hence, everything returns to the status quo ante; there are no subsequent legal consequences. Conversely, Resh Lakish holds that something was actually done (d`avad), even though not carried to its intended consequence. (See, also, Yerushalmi: Kiddushin 3.2/63b).
Now the difference in principle between these two amorayyim is referred back to a difference in principle between two tanayyim: an anonymous sage (tanna qama) and Rabban Shimon ben Gamliel (Mishnah: Gittin 7.6/65b). The case debated there involves a man stipulating that the get he gives his wife is being given on the condition (al menat) that she take care of (she-teshamshi) his father. Should the father refuse for whatever reason, the anonymous sage rules that there is no divorce (eino get). The transaction is cancelled because the stipulated condition was not fulfilled.
Conversely, Rabban Shimon ben Gamliel rules that the divorce is valid (harei zeh get).
He then states his reason for so ruling as a general principle (klal): “Any impediment (ikvah) that is not from her” does not invalidate the get. In other words, the woman was fully willing and able to fulfill her husband’s stipulation for the efficacy of the get. She would have fulfilled her husband’s stipulation were it not that something out of her control prevented her from doing so. Furthermore, the husband did not stipulate that the efficacy of the get depended on his father’s acceptance of her services. While the husband could reasonably assume that his wife would fulfill this stipulation, he couldn’t assume that his father would accept her services. His father might very well refuse them. (In fact, if he had made the validity of the get contingent on his father’s acceptance of her services, it seems this kind of stipulation would be based on a very chancy factor, called asmakhta, that would invalidate the transaction itself; see Nedarim 27b; Baba Batra 168a and Rashi: “asmakhta”).
The ruling of the anonymous sage, on the other hand, makes the efficacy of the get, hence the full dissolution of the marriage, depend on both the woman’s carrying out the stipulation of which she is the subject, and the man’s father actually accepting her carrying out the stipulation of which he is the object. (Along the lines of both the subject and the object of a commandment being willing to be the parties to the commanded deed in order for it to be properly fulfilled, see Ravad to Rambam, Hilkhot Ishut, 3.22; Teshuvot ha-Rashba, 1, no. 18.) Thus the general principle of the anonymous sage seems to be: “Any impediment to the fulfillment of a stipulation, from whomever, invalidates the stipulated transaction.” (I say “whomever,” but not whatever, because an involuntary impediment from an impersonal factor has different legal consequences than a voluntary impediment from a willing person; see Gittin 34a; Rambam, Hilkhot Gerushin, 9.8 and Hagahot Maimoniyot and Maggid Mishneh thereto re ein ones be-gittin.)
Now in disputes between R. Yohanan and Resh Lakish, it is accepted talmudic procedure that the ruling of R. Yohanan is to be followed in all but a few exceptions (Yevamot 36a and Tosafot: “hilkhata;” Bekhorot 13b and Tosafot: “Rav Ashi;” Hagahot Maimoniyot on Rambam, Hilkhot Sanhedrin, 7.10; also, see Hullin 139a). Therefore, in the case of the dispute between the traveler and the airline, the airline is not obligated to return the traveler’s prepayment for a trip when neither of them could have prevented its subsequent cancellation. That is like what R. Yohanan ruled in the case brought in Talmud Yerushalmi cited above (based on the principle that seems to have guided the ruling of the anonymous sage in the Mishnah cited above.
The case in Talmud Yerushalmi is taken to be the basis of Maimonides’ ruling (Mishneh Torah, Hilkhot Sanhedrin, 7.10, quoted verbatim in Tur: Hoshen Mishpat, 21) by R. Joseph Karo (Bet Yosef thereon, citing Sefer Mitsvot Gadol). There Maimonides states that if one formally stipulated with somebody else (she-kanu me-yado) that if he did not appear on a certain day, he would lose his right (v’avdah zekhuto) to collect whatever this other person was to pay him, then that other person would be exempt (ve-yipater havero) from paying him. That is because the first party did not fulfill the condition he himself stipulated. However, if the first party was unavoidably detained (anoos) on the day he originally stipulated to arrive, then he is exempt (patur) from payment. This is like the ruling of R. Yohanan that exempted the boatman from refunding the prepayment of the passenger because of the unforeseen, extraordinary accident of the river over which the ferry was to transport this passenger drying up before the trip could be taken. R. Abraham ibn Abi Zimra (Radbaz on Rambam, Hilkhot Sanhedrin, 7.10) notes that R. Yohanan’s reason makes sense (ve-ta`ama de-mistaber). After all, what could anybody have possibly done about this?! Hence, why should the boatman have to pay back the prepaid fare? Now all this is based on the talmudic principle: “The Torah of God exempts one from liability for any act done over which that person had no control (ones rahmana patreih)” (Baba Kama 28b re Deut. 22:26). So, for R. Yohanan, this is the reason why the boatman is exempt from refunding the passenger money. And, similarly, this could be a good reason why the airline not be obligated to refund the money of the passenger whose flight was either cancelled, or her purpose in taking this flight was to attend an event now cancelled due to Covid-19, hence the trip would be a waste of time and money if taken.
The law is according to Maimonides’ ruling, which is taken to be based on R. Yohanan’s ruling. In the presentation of the this ruling in Shulhan Arukh: Hoshen Mishpat, 21.1, the commentator R. Shabbtai HaKohen delves into what he considers to be R. Yohanan’s reasoning that led him to this conclusion (Shakh thereon). R. Shabbtai sees R. Yohanan’s reasoning to be as follows: One is exempt (patur) from fulfilling a condition that he obligated himself for (mehayyev atsmo) if something accidental happened to him (ve’ar`uo ones). That is because the Torah exempts him from any liability. However, if something accidental happened to the other party to such an agreement, then the first party should not be obligated because of what happened to this other party. The Torah exempts him from what happened to him; but the Torah does not obligate him (hayyaveih) to pay to somebody else for something that happened because of their accident (bi-shvil onso shel zeh). (See Ketsot ha-Hoshen, Shulhan Arukh: Hoshen Mishpat, 21.1.) R. Shabbtai sees the drying up of the river as an accident that happened to the passenger, for which the boatman should not have to pay (i.e., to return the passenger’s prepayment), just as the boatman would be exempt from paying if something accidental happened to him. One is only exempt from paying for what happened because of one’s own accident. Therefore, in the case of the traveler whose flight was cancelled, the accident that happened to her should not obligate the airline to reimburse her for her prepayment.
Ruling in favour of the airline assumes there is an essential difference between foreseeable accidents and unforeseeable accidents. Thus the Talmud (Gittin 73a and Rashi: “kal onsa” and “afiku bah nahara”) reports the instance of a man selling a field to somebody else, and that the seller took upon himself the obligation to reimburse the buyer for any accidental damages that might arise after the sale of the land due to factors (onsa de-mityalid) already in the land at the time of the sale. Then it happened that the King diverted the course of a river that flooded this field. The buyer then sued the seller for reimbursement for the loss of the use of the field he bought from him. (Parenthetically, it seems that in Babylonia at that time, which is where this case occurred, the King could not be sued, even though it seems he ought to be the one sued, for the damage his voluntary action caused, and which was clearly not due to something beyond his control. For a similar problem in the Jewish tradition, see Sanhedrin 20b and Tosafot: “Melekh;” Yerushalmi: Sanhedrin 2.3/20a re Ps. 17:2; also, see Baba Batra 100a and Meiri thereon.) When the case came before Ravina, he ruled in favour of the buyer, arguing that the seller had taken upon himself the obligation to pay the buyer for any accidents that might arise out of the field itself due to factors endemic in the field itself. However, when the case came before Rava, he ruled that the flooding of the field was an extraordinary accident (onsa de-la shkhiah), which the seller did not have in mind when selling the field, hence it cannot be argued that he took responsibility upon himself to indemnify the buyer were this to occur. (R. Aha bar Tahlifa made the same objection to Ravina’s about his ruling there.) The Talmud concludes that it is surely reasonable to distinguish between usual and very unusual accidents (see Rashi: “zeel batar sevara” there).
In the case at hand we have been considering, based on all these precedents, the airline could well argue that they can only anticipate and thus be prepared for ordinary, i.e., often occurring, accidents, like bad weather. However, they cannot be expected to have been prepared for the totally unanticipated Covid-19 virus. This was R. Yohanan’s opinion in the similar caes of the boatman and his passenger, and Rava like R. Yohanan (in fact, the principle of R. Yohanan’s prima facie authority was made by Rava himself as reported on Yevamot 36a) is almost always to be followed in disputes with his contemporaries (see Sanhedrin 27a). In fact, because of its reasonableness, Rava’s ruling would be acceptable even if he didn’t enjoy this preeminence. Moreover, if there were a situation for which a ruling following Resh Lakish’s reasoning would be more reasonable, it could well be followed (see Eruvin 46b and Rashi: “le-hanei klalei;” also Pesahim 102a and Rashbam: “le-hodi`akha”). In cases of monetary disputes, judges have wide discretion to do what they think is the right things to do under the circumstances (see Sanhedrin 6b re II Chron. 19:6; Rambam, Hilkhot Sanhedrin, 24.1, 9; Kiddushin 74a and Rashi: “be-shuda de-dayyanei”), irrespective of whom they might be disagreeing with.
The difference between ordinary (milta de-shekhiha) and extraordinary (milta de-la shekhiha) situations is a factor in a number of rulings in the Talmud (Eruvin 63b; Ketubot 56b; Gittin 88b; Baba Kama 84b). This comes out in a discussion in the Talmud, immediately following the statement of the principle that one is exempt from liability for forbidden acts done because of forces beyond one’s control, hence beyond one’s responsibility for their occurrence (Baba Kama 28b-29a). “Somebody whose jug broke and he didn’t remove it, whose camel fell and he didn’t raise it up, if this incurred damage [be-hezekan], R. Meir obligates [me-hayyev] this person to pay for the damages that came about due to his negligence. But the sages say he is exempt from payment.” Maimonides explains (Hilkhot Nizkei Mamom, 13.7), “because he was anus,” i.e., the damages caused were accidental; they did not directly come about due to this man’s action, but indirectly came about due to his negligent inaction. In other words, he is innocent post factum, but he still ought not have done so ab initio (Baba Kama 60a; Baba Batra 94a and Rashbam: “noten lo”). Here is another example of the principle “exempt but forbidden” (patur aval asur; Shabbat 3a; also, see Mishnah: Baba Kama 8.6; Baba Metsia 48a and 49a). Nevertheless, in a case where one’s articles were placed on a roof and were blown off the roof by an “ordinary wind” (be-ruah metsuyah), the Talmud (Baba Kama 29a) says that even the sages would agree with R. Meir that this person is liable to pay for any damages this careless action indirectly brought about. The Talmud also says that even R. Meir would agree with the sages that if this had been an “extraordinary wind” (be-ruah she’einah metsuyah), this person would be exempt because, as Rashi explains, this was an “accident” (d’anus hu). In another context, Maimonides speaks of ones as “what is not done most of the time, but which is like a marvel (pel’e; Hilkhot Rotseah, 6.12 re Mishnah: Makkot 2.1).
Sometimes, however, legal exemption does not include ethical exemption. There are times when one is required for ethical reasons to do something he or she is exempt from doing for legal reasons. So, even though in cases of a foreseeable accident (like items being blown by an ordinary wind that do damage) one is exempt “according to humanly enforced law” (me-dinei adam) from payment for damages that occurred due to it, that person is still obligated (hayyav) to pay “according to divinely enforced law” (be-dinei shamayim). Now what is the difference between the two? Surely, all Jewish law is believed to come from God in one way or another (Mishnah: Sanhedrin 10.1; Hagigah 3b re Eccl. 12:11 and Exod. 20:1; Berakhot 5a re Exod. 24:12; Rambam, Hilkhot Mamrim, 1.1 re Deut. 17:11). The source of the law is the same. Instead, the difference is because humans can only enforce some of what God expects from us, but not all of it. There are human acts that human authorities cannot enforce and may not try to enforce, but for which humans are answerable to God nonetheless (Yam shel Shlomo: Baba Kama, 6.6). Humans can sense the ethical action God expects from us, even if they can get away with not doing it with legal impunity (see Sifre: Devarim, no. 79 re Deut. 12:28 and Prov. 3:4; Ramban on Lev. 19:2). One might say that Halakhah is the minimum of Jewish morality, not the maximum. Thus there are acts that Halakhah does not require one to do, but which ought to be done nonetheless, even when human authorities cannot or may not enforce compliance and punish noncompliance. In fact, sometimes, for ethical reasons, human authorities can even force a person to do something that he or she has a legal right not to do (see Baba Metsia 83a re Prov. 2:20; Ketubot 49b and Tosafot: “akafeih”).
Conclusion: According to codified Halakhah, the airline is not obligated to return this traveler’s prepayment for a flight that has been cancelled due to the extraordinary circumstance of the Covid-19 pandemic. Nevertheless, a judge can rely on a minority legal opinion that ruled in a similar case that a carrier reimburse a passenger who prepaid for a trip cancelled due to an extraordinary circumstance. Or, a judge can decide, for the ethical reason of alleviating great financial hardship, to order reimbursement. Or, the airline can decide that at least some reimbursement is the good deed that ethics requires them to do, even though their more pragmatic reason for doing so might very well be that reimbursement is good business policy. After all, reimbursed travelers might be grateful to the airline for doing so, and they might therefore book future flights with this airline once normal travel returns. In such cases, when the ethical deed is done, we don’t look for what actually motivated anybody to do it. That judgment is left to God (I Sam. 16:7; Mishnah: Baba Metsia 4.10 and comment of Rambam thereon; Baba Metsia 58b re Lev. 19:15).
7 Iyyar 5780
1 May 2020
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One of the founding members of the UTJ, Rabbi David Novak is recognized scholar in Talmud and theology. He has served on the Panel of Halakhic Inquiry and contributed to the UTJ’s 3-volume Tomeikh K’Hakalakha, a series of questions & answers on topical religious issues.
A disciple of Rabbi Saul Lieberman, Rabbi Novak is the author of many books and scholarly works, including:
Rabbi Novak holds the J. Richard and Dorothy Shiff Chair of Jewish Studies as Professor of Religion and Philosophy at the University of Toronto, where he is a member of University College and the Centre for Jewish Studies. He is also a consulting scholar and a member of the Board of Advisors of the James Madison Program in American Ideals and Institutions at Princeton University.