David wanted to buy a new cell phone. He browsed online and found a great deal at “Moishie’s Mobile.” He ordered a phone and two silicone shields, with delivery promised within 7 business days.
Two weeks passed and David had not received the phone. He contacted the store. “I ordered a phone two weeks ago and still haven’t received it,” he said.
“Let me check,” replied the customer service representative. “One moment… Indeed, there was error in processing your order. I will resubmit it. Please contact us again if you do not receive your phone next week.”
Another week passed, and the phone still did not arrive. David contacted customer service again. “What’s going on?” he asked.
“I’m happy to verify the status of your order,” said the representative. “Somehow, another error occurred. I will have your phone sent express delivery. In addition, as compensation for your trouble, we will send you a universal USB charger free of charge and credit you the value of the silicone shields.”
“Thanks,” said David, “but please make sure the order is sent ASAP.”
Two days later, David received the order – almost. The phone arrived, as well as the USB charger, but not the silicone shields. David was exasperated; he contacted customer service once again.
“We’re terribly sorry,” the representative said, “but the silicone shields for that particular model have been discontinued; they are not available.”
“Then please refund my money for the shields,” requested David.
“Our records show that we already credited the money for the shields,” replied the representative.
“That was compensation for the trouble,” replied David. “You still owe me the shields or their value!”
“Sir, we already sent you a USB charger as compensation and credited you for the shields,” replied the agent. “Now you want an additional refund for money that was already credited?”
“I did not ask to credit the value of the shields as compensation,” replied David. “You decided to! However, once you agreed to that, you still owe me the shields or a refund!”
“I will have to consult the store owner on this,” replied the agent. “I will contact you tomorrow.”
“Very interesting case,” Moishie mused when he heard the story. “I wonder what Rabbi Dayan has to say about this!”
Moishie called Rabbi Dayan and explained the situation. “There’s a question of how I want to handle customer relations, but I’d like to know the halacha,” he said. “If the money for the silicone shields was already credited as compensation, must I give an additional refund if the shields are not available?”
“Halacha differentiates between giving a gift, forgoing a debt [mechila], and granting permission to take something,” answered Rabbi Dayan. “Giving a gift requires a kinyan [act of transaction] to be halachically binding. While an upstanding person should honor his words, a person is not viewed disparagingly if he retracts from a verbal commitment to give a large gift, since the recipient is not fully reliant on such a gift panning out. Retracting from a small gift without due cause, though, is considered mechusar amana, lacking trustworthiness.” (C.M. 204:8; 241:1)
“What about forgoing a debt?” asked Moishie.
“On the other hand, mechila of a debt, or even of returning an entrusted item, is valid with words alone,” replied Rabbi Dayan. “It does not require any official confirmation, receipt, or kinyan [act of transaction]. This is because the money or item is already in the hands of the recipient; the owner has only a claim to have it returned. The minute he relinquishes this claim his statement takes effect and the recipient can retain possession. However, the term mechila does not apply to granting items currently in the giver’s hands.” (C.M. 241:2).
“And what did you mean about ‘granting permission to take’ ”? asked Moishie.
“When you grant someone permission to take something of yours, it is possible to retract until the person takes the item,” explained Rabbi Dayan. “Until then, it is just words; once he takes the item, he acquires it with permission. According to the Shach, mechila can also apply here. When the person takes the item, the owner has a claim to demand it back, which he forgoes.” (C.M. 241:3; Shach 241:5)
“Thus, if you simply promised to give free silicone shields as compensation, you could retract,” concluded Rabbi Dayan. “Conversely, if the customer owed you money for them and you said there is no need to pay – that’s classic mechila. In this case, since he paid you money for the shields, you owe him the items or a refund. When you decided to credit him their value as compensation without cancelling the order, once you credit the money it is a gift he already possessed. Thus, you still owe him the shields or a refund of their cost.”
