Question:

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?

Answer:

1. 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.

2. 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.

3. 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)

Sources:

(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.

Feedback is appreciated! It can be sent to[email protected].

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 and approval.

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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!