Mrs. Feldman was making arrangements for the aufruf of her son, Shalom. She was sitting with the caterer, Mr. Miller over the menu. “And what would you like for desert?” asked Mr. Miller.
“What are the options?” asked Mrs. Feldman.
“You can have cake or ice cream,” said Mr. Miller. “Of course, choice of tea or coffee is included.”
“What kind of cake is there?” asked Mrs. Feldman.
“Standard is chocolate cake,” answered Mr. Miller. “There is also babka, seven layer, or apple sponge for a slight addition of $1 a person. You can have a fancy cake – almost like a miniature wedding cake – at an extra cost of $600.”
“Chocolate cake is sufficient,” said Mrs. Feldman.
“Fine; that closes the menu,” said Mr. Miller. “I’ll e-mail you the order.”
A few days, Mrs. Feldman called back. “I would prefer a nice cake rather than the chocolate.”
“Do you mean a fancy cake, like a wedding one?” asked Mr. Miller.
“No, we don’t need that,” said Mrs. Feldman. “I just meant something nice, like seven layer or apple sponge. I’ll leave that to your discretion.”
“All right, I’ll write down ‘nice cake’,” said Mr. Miller.
The aufruf Shabbos arrived and was a celebrated joyously. When dessert time arrived, a miniature wedding cake was place in the center. On top was fine chocolate, formed into letters: “Mazal Tov, Shalom and Michal.”
People began cutting the cake. Before you knew it, most of the cake was gone. Meanwhile Mrs. Feldman was talking to her guests, some of whom had come in from Israel for the occasion.
Shalom came over. “Did you see the beautiful cake for desert?” he said to his mother. “It was like a miniature wedding cake.”
“Oh really?” replied Mrs. Feldman with surprise. “I didn’t think I ordered that cake.” She and her husband went to speak with the caterer.
“A lot of people have commented how good the food is,” Mrs. Feldman began. “But I’m confused about the fancy cake.”
Mr. Miller took out the order. “You see, it says that you changed the desert to ‘nice cake’,” he said.
“Don’t you remember I specifically said not fancy, just something nice instead of plain chocolate?” asked Mrs. Feldman.
“Now I remember,” said Mr. Miller. “My mistake. Well, I hope you enjoyed it.”
“We certainly did,” said Shalom with a wide grin. “It’s almost completely eaten!”
“Glad you enjoyed it,” Mrs. Feldman laughed. “We’ll add for the cake after Shabbos,” she said to Mr. Miller.
“No need,” said Mr. Miller. “You didn’t order it, and it was my error.”
“We wouldn’t feel right,” persisted Mr. Feldman. “Shalom was pleased with the cake and that’s what counts.”
“No, no,” insisted Mr. Miller. “I don’t do business that way.”
Meanwhile, Rabbi Dayan stopped by to wish Mazal Tov. “A fancy desert cake, which costs $600, was served in error,” said Mr. Feldman. “Should we pay?”
“There is no contractual liability for the fancy cake, since it was not what you ordered [mekach taus], but it was eaten and enjoyed by the guests,” replied Rabbi Dayan. “Thus, you should pay for the benefit you received.”
“What do you mean by that?” asked Mr. Feldman.
“An animal that ate food in a public domain [reshus harabim] is exempt from damage payments, but has to pay ‘what it benefited,’ ” explained Rabbi Dayan. “According to one opinion [B.K. 20a], this is the discounted value of barley animal food. In another case [B.K. 112a], a person borrowed an animal and died. His heirs slaughtered the animal, unaware that it was not theirs. They don’t pay the full value, but rather ‘what they benefitted’ – dmai basar b’zol, meat at a discounted price.” (C.M. 341:4; C.M. 391:8)