Question

 

Yissochor lives in a rented apartment. There is a clause in his rental agreement that
states that he is responsible for all utility bills and the phone bill. He receives a
phone bill for $15,000, even though he is sure that his family did not make more than $120
worth of calls! He contacts the Telephone Company, which sends engineers to investigate.
They are unable to locate the source of the problem. The company tells him to pay up.
Yissochor approaches his landlord, in whose name the telephone line is registered, who
agrees that he could not have made so many calls. However, the landlord points to the
clause in the contract, by which Yissochor is obligated to pay all bills. Who pays
the bill?

Answer

The Rambam writes (Hilchos Mechirah 19:6-7) that when a condition is inserted
into a contract, it is assumed to cover only what the person making the condition could
reasonable have had in mind at the time. He quotes an example from the Gemoro. A merchant
hired a shipping company to transport a cargo of sesame-seeds to town down-river,
stipulating that they are fully responsible for the cargo till it reaches its destination,
accidents included. Halfway down the river, the river dried up. Were they contractually
obligated to continue transporting the cargo overland? Since the river drying up was such
a rare occurrence, they obviously did not have it in mind at the time when the clause
concerning accidents was inserted in the contract. Therefore, they had no obligation to
hire animals and wagons to continue the journey. This ruling is also quoted in Shulchan
Oruch, Choshen Mishpot 225:3-4. The Be’er Hetev ad loco (No. 7) discusses what
circumstances are considered exceptional. There are different rulings as to whether a
dramatic change in the value of money is considered rare. It simply depends on present
local conditions! He also suggests a form of words which will make a person liable even
for these exceptional occurrences.

It is important to note that the above only applies to unforeseeable accidents which
prevent a person from completing his contract to carry out work or to supply goods.
However, if he sells goods and they are later found to have been defective, even though
the defect is extremely rare and the vendor was unaware of the problem at the time of
sale, the vendor still remains liable. The reason for this is that a purchaser expects to
receive goods that are fit for the purpose for which they were purchased (see Shulchan
Oruch 232:18- and 3). The exceptional defect still invalidates the deal.

THEREFORE, Yissochor only has to pay his share of the phone bill, i.e. for the
phone calls that he actually made. When he agreed to pay all bills, what was clearly
understood was that he had to pay for the usage of utilities, etc. He did not accept
responsibility for any financial loss resulting from the telephone line. The freak bill is
the responsibility of the renter of the telephone line, namely, the landlord. He will have
to sort it out with the Telephone Company..