A soft drink company decided to run a raffle to spur an increase in their
sales. They advertised in a newspaper that anyone who sends in a certain
amount of proofs-of-purchase of their product by a specific date will be
entered into a drawing to win "exciting prizes".
When the date of the drawing arrived, the company advertised that for
technical reasons they would be unable to have the drawing on the
designated day, and postponed if for three weeks. They also stated that
anyone who would send in proofs-of-purchase by the new date would also be
included in the drawing.
A. Was the company permitted to postpone or cancel such a drawing?
B. Is the company permitted to add the people who missed the original
deadline to the drawing?
A. The company is obligated to conduct the drawing according to the terms
that it publicized. If, for technical reasons, the company is unable to
conduct the drawing according to the terms that it publicized, it may
postpone the drawing until the next time that it is able to do so.
B. If the company is postponing the drawing, it may not include entries
that have come in after the published deadline for entries. In other
words, if it had originally been advertised that the proofs-of-purchase
must be sent in by Purim 5759, although the drawing was postponed, any
entries received after Purim may not be entered into the drawing.
C. If the company did add entries that arrived after the deadline, any
one of the participants in the drawing may Halachically object and void
the entire drawing, and demand that the raffle be redrawn without the
entries received after the deadline. (1)
(1) Although there is disagreement between the Shulchan Oruch and the
Rema (Choshen Mishpat 207:13) whether "games of chance" are considered
"Asmachta", all agree that in our case both the company and the consumers
are bound by the commitments that they have made to one another. Neither
party can back out based on the claim that this agreement is Asmachta,
and all terms of the drawing must be kept.
[An Asmachta is a commitment that a person had no intention of keeping.
An Asmachta is not binding and such a commitment is null and void. For
example, gambling is considered an Asmachta because the loser can say
that he never intended to need to pay if he loses.]
From the company's point of view, since they have an interest in
maintaining their integrity in the eyes of their customers, they clearly
intended to keep their commitment to have the drawing and award the
prizes to the winner(s). Also, it is in their best interests to undergo
this expense, since this is an investment intended to spur sales which
will enable them to net a profit greater than the expense of the
advertising for the drawing and prizes. Therefore, this can not be
compared to "gambling" where the loser can say that he never intended to
have to pay if he loses.
From the consumer's point of view, they can not argue that if they had
known they would lose they never would have purchased the drinks and
entered the drawing! They purchased the drinks as part of a normal
business transaction, and by doing so they were awarded a chance to enter
the drawing. There were no "games of chance" involved in their purchase,
and the sale certainly may not be voided based on the claim of Asmachta.
To qualify as Asmachta the entire loss must come from the "lost chance"
itself. Only in such a case can the loser exempt himself from paying the
winner by arguing, "I was so sure that I'd win that I agreed to
participate, but now that I've lost I don't want to have to pay."
As we mentioned in our last class, the Teshuvos Chavos Ya'ir (61) states
that the underlying principle of a lottery is that the outcome is
determined by Hashem, as Shlomo HaMelech says in Mishlei (16:33). This is
only true if it is conducted fairly, and according to the terms that all
of the participants have agreed upon. If there is any digression from
this, even unintentional, we can not say that the outcome of the lottery
was determined by divine Hashgocha, and any one of the participants may
void such a lottery, and demand that it be redrawn properly.
Therefore, in our case, since the terms of the drawing were that only the
customers who sent in the proofs-of-purchase by a certain time would be
included, adding additional entries after this time would be a violation
of these terms. Consequently, the results of any such drawing would be
"coincidental", and not based on divine Hashgocha, which does not qualify
as a lottery at all from a Torah perspective. Although a raffle may be
delayed for technical reasons which render it impossible to hold it at
the originally scheduled time, this is because everyone understands that
it will be held at the next possible time, and this would not necessarily
be a violation of the terms. However, adding new entries decreases the
chances of the others who entered on time to win. This must be considered
a violation of the terms with which they had originally agreed to
participate in the raffle, and a new drawing according to the original
terms may be demanded by any of the participants, even after someone else
has already been declared the winner.
This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av
Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His
Column originally appears in Hebrew in Toda'ah, a weekly publication in
Jerusalem. It has been translated and reprinted here with his permission
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Please Note: The purpose of this column is to make people aware of Choshen Mishpat
situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each
individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the
presence of all parties involved!