Shabbat Parashat Vaetchanan 5785

P'ninat Mishpat: Using Car that Was Supposed to be Returned

Case: The plaintiff (=pl) bought a 2013-make car from the defendant (=def) with 106,000 km. on its odometer for 50,000 NIS in April 2023. Ten months later, while contacting the car dealership, he discovered that well before he bought the car, the odometer had already reached 278,000 km, so that it must have been significantly tampered with. Pl demanded to nullify the sale, as he was not willing to buy a car with so much usage, with a return of the sales price. Def explained that he received the car as payment of a debt from Reuven, and that he never even used the car and did not know about the odometer. In any case, it is not fair that he should return all the money since pl used the car for more than a year.

Compromise and Aftermath: Although beit din reasons that pl could nullify the sale and adjust the amount to be returned, the sides made a compromise in which pl would return the car, and beit din worked with them on figuring out how much def would pay, by working on price lists. As this was happening, pl continued to use the car (no instructions had been given on that point), and the engine was ruined from cumulative overuse. Def is no longer willing to take the car back at any price.  

Ruling: Majority opinion: Since the car was to be returned, pl had no right to continue using it. Although continued use of a sales item after a blemish is discovered usually precludes nullifying the sale due to mechila (Rambam, Mechira 15:3), that does not apply here after pl went to the trouble of suing to return it (see Shulchan Aruch, Choshen Mishpat 232:4).

Although one who borrows something without permission is like a thief, who has to pay for the stolen object if he is unable to return it intact, for whatever reason, there is a machloket whether that is the case when he did not realize he did not have permission to do so (as believed to be the case here). Even so, a borrower has to pay for all damages to the object even if it was not at all his fault unless the object “died as of a result of proper use” (meita machamat melacha = mmm). Although our case is mmm, the exemption does not apply here based on mmm’s logic. One explanation of mmm is that it is considered that the borrower was deceived by receiving an object that cannot safely do what it was borrowed for (Ramban). Another is that the lender relinquishes rights to payment when the borrower uses it (Rambam). Neither of those explanations applies to pl who did not even have permission to use it, and therefore he has the full obligation of a borrower for any damage. Therefore, the true value of the car at the time it was improperly borrowed should be reduced from the amount def was supposed to pay pl.   

The minority opinion views pl as borrowing with permission, considering that he had bought the car and used it, and def did not ask him to stop. Therefore, he is exempt either due to mmm or because until it is returned, he is still considered the owner of the car.  

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