Question

Bentzi of Catering Delights signed a contract with the
Goldberg Cabinet Co. to supply warm, nutritious and tasty meals to the
factory canteen on a daily basis. The original contract was for one year,
with an option for extension. Bentzi would present a bill at the end of
every month, for prompt payment. All went well for the first four months. At
the end of the fourth month, Bentzi called up the factory to let them know
that he would cease supplying meals as of the beginning of the following
month. When asked how he could breach a signed contract, he replied that
since the number of meals to be supplied had not been specified, the
contract was invalid according to the Rambam. Is this argument valid?

Answer

Let us first examine what the Rambam says. In the
Laws of Selling (11:16) he writes that if a person undertook to feed or
clothe someone for a period of five years, he can not be held to this
undertaking even if a kinyan (act of acquisition) had been made. He
compares this transaction to giving a gift. A gift must be a finite item
which is available. The food or clothing required by any individual over a
period of five years is not a clearly defined item. He concludes that his
teachers agree with this ruling. The Ra’avad is astonished by this
ruling and has no idea from where it is derived. He is of the opinion that
such an undertaking is valid, despite the fact that the quantity of food and
clothing is as yet unknown. The Ra’avad is not alone in his opinion.
The Sefer Hatrumos (64:1), quoting a responsum of the Ramban, also
upholds the validity of such an undertaking. He brings proof from
Tractate Kiddushin (78b), where it is stated that according to
Rebi Meir (who is of the opinion that a person can transfer ownership of
goods which do not yet exist) a person is able to transfer goods which will
only come into his possession at a later date. From here we can infer, says
the Ramban, that even though the Rabbonon argue with this ruling,
they will agree that a personal undertaking (chiyuv haguff) to
transfer such goods would be valid, despite the fact that the
quantity of these goods is not yet known (since the person’s body is already
in existence). The Rashbo (Responsa 2:89) and the Ritvo (Responsa
163) are likewise of the opinion that such an undertaking is valid. The
Rashbo adds that it is accepted practice for Beis Din to uphold
such transactions, contrary to the opinion of the Rambam. The
Shulchan Oruch (Choshen Mishpot 60:2) presents both opinions, but
concludes that we do not accept the opinion of the Rambam, since all
those who came after him disagree with his opinion. The Shach (Note
2) quotes leading acharonim (later commentaries) who are of the
opinion that if a person would refuse to fulfill such a commitment, arguing
that he is relying on the Rambam’s ruling, we could not force him to
do so. The Shach disagrees with them, arguing that one has no right
to rely on a minority opinion if all others disagree with this view. The
Tumim (Urim 60:10) and the Nesivos (60:7) agree with the
Shach.

It is therefore clear that Bentzi’s argument that he is
relying on the opinion of the Rambam is not acceptable. He must
continue to honour his agreement to supply meals till the end of the year.
The Emek Hamishpot (1:25:10) adds that even the Rambam would
uphold the contract, according to the understanding of the Mishneh
Lemelech. He writes that the Rambam invalidates a non-finite agreement
only if the person making the undertaking receives nothing in return.
However, if he receives some form of payment his commitment is wholehearted
and is fully valid. Thus, since Bentzi receives payment for the
non-specified number of meals supplied, even the Rambam would agree
that he must fulfill his contractual obligation.