Q. Reuven committed to supply Shimon with a large amount of merchandise before Pesach, and agreed to pay a $50,000 penalty for delayed delivery. It turned out that the factory couldn’t produce all of the merchandise quickly enough, and Reuven was able to send only two-thirds of it before Pesach. Shimon claims that Reuven must pay him the full penalty, and Reuven says that he should pay only in proportion to the amount he did not deliver.
Who is correct?
A. The Gemara (Bava Metzia 104b) discusses a case that seems to directly parallel the one just described. Someone agreed to be a sharecropper in a certain field (i.e., he would cultivate the field and split the produce with the owner according to terms negotiated between them), stipulating that if he would leave the field fallow, he would pay the owner one thousand zuz. In practice, he planted only two-thirds of the field. The sages of Nehardaa ruled that he must pay the owner 333.3 zuz — one-third of the penalty he had agreed to pay for leaving the entire field fallow.
Rava disagreed, ruling that because the sharecropper’s stipulation was an asmachta (meaning that he made it assuming he would not have to follow through with it), he is not required to pay any penalty, because an asmachta is not binding (Shulchan Aruch, Choshen Mishpat 328:2).
In our case as well, Reuven’s agreement was an asmachta; he agreed to pay the penalty only because he was certain that he could deliver all of the merchandise on time. According to Rava, he is not required to pay the penalty at all. The only way to override an asmachta is to write in the contract that the parties agreed to the deal, penalty included, with a kinyan in a beis din chashuv. (Some poskim suggest that a contract is binding even without that stipulation due to the principle of situmta, which means that any transaction that was made in accordance with the local business practices is binding; according to these poskim, situmta overrides an asmachta; see Shu”t Minchas Yitzchak 6:170[20].)
If the deal was made in a way that overrides the asmachta, it appears from the Gemara cited above that the penalty is prorated. The Taz (Yoreh Dei’ah 238:11; Choshen Mishpat 73:8) cites this Gemara as proof that if a borrower agreed to pay a penalty for failing to repay the loan on time, and he pays a portion of the loan on time, he is obligated to pay the penalty in proportion to the amount he did not pay on time.
Some poskim reject this proof, however, by differentiating between the case of the Gemara and the case of a borrower. The sharecropper discussed in the Gemara agreed to pay a thousand zuz if he wouldn’t work at all, which means that he essentially “bought” the field for a year for that sum (i.e., the penalty is in place of cultivating the field). It stands to reason, then, that if he didn’t plant a portion of the field, the penalty would be proportional, because for the portion that he did cultivate, the owner received produce instead of the penalty.
In the case of the borrower, however, the penalty does not “replace” repayment of the loan; he must still pay whatever he owes, even after paying the penalty. Therefore, the penalty is for failing to meet his commitment to repay the loan on time, and even if he paid a portion of it, he didn’t fulfill his commitment, so he must pay the full penalty (Shu”t Gur Aryeh Yehudah, Yoreh Dei’ah 82).
Our case is subject to this dispute between the poskim. According to the Taz, Reuven will be obligated to pay only a reduced penalty, proportionate to the amount of merchandise he did not deliver on time. But according to Gur Aryeh Yehudah, he would be obligated to pay the full penalty. Since this matter is disputed, beis din will obligate Reuven to pay only the smaller amount, proportionate to what he did not deliver.
If, however, Reuven phrased his commitment as follows: “If I don’t meet my commitment, I must pay $50,000,” then it is clear that he had to deliver all the merchandise in order to avoid paying the penalty, and since he didn’t, he must pay the full penalty (see Divrei HaGeonim 9). Nevertheless, if Shimon did not suffer a financial loss as a result of Reuven’s failure to deliver all of the merchandise on time, then they should compromise on the amount Reuven must pay (see a similar case in Chukos Chaim [Palagi] 47).
