A Break from Custom and Usage

For Jewish folks, tonight at sundown marks the beginning of Rosh Hashanah and the 10-day High Holiday season which ends with the close of Yom Kippur.  Back in 1950 in Philadelphia, the Jewish New Year sparked a bit of a contracts controversy. 

Congregation B’nai Yitzhok had contracted with a professional rabbi/cantor to officiate the high holiday services for $1200.  The contract was “entirely silent as to the character of the defendant as an orthodox Hebrew congregation and the practices observed by it as to the seating at the services in the synagogue.”  Unbeknownst to the rabbi, the congregation had voted to break from orthodox tradition that year, and decided to allow “mixed seating” between men and women at the services.  When the rabbi found out about the congregation’s decision, he refused to officiate the services due to his religious beliefs.  Problem was, it was too late for the rabbi to secure employment at another, more conservative synagogue, and he only managed to find employment elsewhere officiating one service for $100.  The rabbi sued for breach of contract.  The Pennsylvania Superior Court held:

In determining the right of recovery in this case the question is to be determined under the rules of our civil law and the ancient provision of the Hebrew law relating to separate seating is read into the contract only because implicit in the writing as to the basis — according to the evidence — upon which the parties dealt. [citation omitted] In our law the provision became a part of the written contract under a principle analogous to the rule applicable to the construction of contracts in the light of custom or immemorial and invariable usage. It has been said that: “When a custom or usage is once established, in absence of express provision to the contrary it is considered a part of a contract and binding on the parties though not mentioned therein, the presumption being that they knew of and contracted with reference to it”: 1 Henry Pa. Evid., 4th Ed., § 203. Cf. Restatement, Contracts, § 248(2) and § 249. In this case there was more than a presumption. From the findings of the trial judge supported by the evidence it is clear that the parties contracted on the common understanding that the defendant was an orthodox synagogue which observed the mandate of the Jewish law as to separate seating. That intention was implicit in this contract though not referred to in the writing, and therefore must be read into it.

The rabbi recovered $1100, plus interest.

Fisher v. Congregation B’Nai Yitzhok, 177 Pa. Super. 359 (1955).

[Meredith R. Miller]