Magazine not delivered - what are they responsible for?

Question

If someone has a subscription to a Jewish weekly or magazine or newspaper (for example: Mishpacha, Binah, Ami, Jewish Press, Yated, Hamodia, etc.) and they are supposed to deliver on a specific day of the week. For some reason it was not delivered (not a situation beyond their control) what is the magazine or papers responsibility? My question is that usually a subscription is cheaper than the store price. Can they just tell you we will extend your subscription for a week and pick it up in the store this week, or should they really reimburse you your extra cost and time of purchase?

Answer 1

The following is a restating of an article originally published in Hamodia and reprinted at businesshalacha.com.

Lets break this question down:

If someone has a subscription to a Jewish weekly or magazine or newspaper (for example: Mishpacha, Binah, Ami, Jewish Press, Yated, Hamodia, etc.) and they are supposed to deliver on a specific day of the week.

A subscription is not necessarily a contract between a buyer and seller, because under halacha, you cannot own something that has yet to exist (חושן משפט, ס' ר"ט, סע' ד). Therefore, when one purchases a newspaper or magazine subscription, one does not actually attain any ownership of the yet to be published papers/magazines. Rather, a newspaper or magazine subscription is a commitment made by the publisher to provide to the customer the newspapers that will be published in the future in return for a fee. Commitments to provide future goods are not always legally enforceable, but if the subscriber and publisher continue with this unwritten agreement, then the advanced payment made by the subscriber constitutes payment for the purchase of the goods as well as their delivery.

For some reason it was not delivered...what is the magazine or papers responsibility?

Ordinarily, when one has a contract to purchase an item, the contract is completed when there is a kinyan -- an exchange of the purchased property (חושן משפט, ס' קפ"ט). But lets say that Homodia typically comes to you by a delivery boy who throws a copy onto your driveway. Does that complete the transaction? Is the seller's responsibility over, no matter what happens to the paper thereafter? If the paper is thrown into a guarded area, say within a fenced yard watched over by my fearless cocker spaniel, then a kinyan would have occurred and the paper has met its responsibility (חושן משפט, ס' ר', סע' א). But if the paper was just left on the driveway, there has been no kinyan. Arguably, the paper would be responsibile to replace the paper if it was stolen from your driveway. However, it can also be argued that the paper, acting upon custom, made a delivery after throwing the paper on your driveway and had no further interest in the paper, making the paper ownerless (and by implication, fair game for anyone to pick up). As a matter of maintaining good will, the publisher should replace the missing paper, but whether it has an obligation to, is the subject of an ongoing dispute among halachic authorities. (הגות רע"א חושן משפט, ס' ק"כ, סע' א', וע' באמרי בינה הנ"ל , ןבנתיבות המשפט ס' קצ"ד, ס"ק ד)

My question is that usually a subscription is cheaper than the store price. Can they just tell you we will extend your subscription for a week and pick it up in the store this week, or should they really reimburse you your extra cost and time of purchase?

As noted above, one cannot purchase something that doesn't yet exist, and the purchase isn't completed until delivery is properly made. Based on that, the money you fronted to the magazine/newspaper is essentially a loan for which the publisher can either repay through a refund or by giving you the magazine or newspaper you subscribed to receive. Since your contract was that payment (ie the magazine) on the loan was due as of a certain day, you can demand that you get a full refund or immediate delivery (see Rabbi Joseph Stern, "Ribis: A Halachic Anthology," § 1(F) (discussion of prepayment for services)); therefore an extension of the subscription is at your discretion, not the publisher's. I think that if they tell you to go to the store, then they have done nothing to satisfy their obligation.