Advertising on a Website That Was Blocked by NetFree

Users paid in advance for a year so that their website would appear to users of another website as an advertisement. It was clear to both parties that if the site being advertised is blocked by NetFree, the advertisement has no significance, since most of the target audience cannot enter to see the advertisement.

Does part of the payment need to be refunded to them? If so, should the refund be proportional according to the number of days remaining?

It should be noted that the pricing was set in advance as an annual payment, because the main benefit from the advertisement is at the beginning of the period, and afterward the benefit is much smaller.

Greetings and blessings 

Advertising that was blocked by NetFree. I am missing one technical detail: does the advertising company work every month in order to set up and maintain these advertisements? If so, there is room to view the engagement as ongoing throughout the entire year, and to discuss whether, since the advertisement still exists and is accessible through other networks, such as Etrog and Nativ, this is not a complete case of force majeure. Here too, it must be clarified whether the purpose of the advertising was specifically toward the audience of NetFree users, and whether this was stated at the time the agreement was concluded.

However, if it was indeed known in advance that the advertising was intended mainly for NetFree users, but at the same time it was known that NetFree might block the site, and they did not stipulate between themselves what would happen in such a case, there is a strong argument that the client should have stipulated this, and since he did not stipulate it, he accepted upon himself the known risk. This is not necessarily comparable to a sale made on condition, for when one did not state his condition at the time of the transaction, even if he had a certain purpose in mind, the transaction is not voided because of unexpressed intentions — devarim shebalev (Shulchan Aruch, Choshen Mishpat 207:4).

Beyond all this, it seems to me more likely that if the normal manner of things is—as also seems reasonable from a technical perspective—that the advertising company uploads and finalizes the advertisement at the outset, and from then on does not perform a monthly action but merely bears responsibility for malfunctions, then this is more comparable to a contractor who completed his work at the beginning and undertakes responsibility for the continuation. Since they did not stipulate anything regarding the possibility of being blocked, and the possibility was known and reasonable in advance, it appears that there is no basis to obligate them to deduct from the price, and this is not a mistaken transaction or a condition that was not fulfilled (Shulchan Aruch, Choshen Mishpat 232; 207).

However, if this concerns a site regarding which, at the time of the engagement, it did not appear at all that NetFree might block it, and it was clear to both parties that the entire essence of the advertising was because it was accessible to this public, there is room to say that even without an explicit condition there was a clear presumption—umdana demuchach that the engagement was made on the understanding that the site would remain open. With an umdana demuchach, a transaction may be voided even without an explicit condition (Rema, Choshen Mishpat 207:4). And if he even stated at the time of the engagement that this was the purpose of the transaction, the matter is even stronger (Shulchan Aruch, Choshen Mishpat 207:3).

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