Shabbat Parashat Vayigash | 5770
Ask the Rabbi: An Agent Who Bought More Than he Was Authorized
Question: Three friends asked me to get “duty-free” cigarettes for them. I asked my roommate, who was traveling, to buy two cartons each of three brands of cigarettes. He saw packages of three cartons and decided to buy one of those each of the three types rather than ask for individual cartons, figuring I would appreciate the better price. On the way out, customs stopped him and confiscated six of the cartons, as there is a limit of two (neither of us knew). My three friends (who are poor) are willing to pay only for what they received, and I am resigned to absorbing the loss of the three additional cartons I asked for, of the six cartons that were taken. My roommate expects me to pay even for the three extra ones he bought with good intentions but beyond my instructions. Since I also acted with good intentions and have lost plenty money for the favor, I do not feel I should pay for his unauthorized purchase. I do not think that I would have agreed that the extra three cartons be bought had I been asked, and at this point, in any case, it turns out to be a bad idea. (It is even possible that, had he had bought only six, customs would have let it go). [Note: The respondent, who knows both sides, heard both sides in an informal and non-binding din Torah.]
Answer: We will not discuss potential claims of negligence in not ascertaining the customs’ rules, nor the question whether it is permitted to buy cigarettes for someone and how that could impact on the case. You have understandably not raised either issue, as you were a partner to both decisions. While it is plausible that the extra three cartons prompted customs to act, that is too theoretical a possibility to base oneself on.
The Shulchan Aruch (Choshen Mishpat 183:6, based on Bava Kama 99a) says that if a shaliach (agent) sold more property than he was authorized to, the sale is valid but only in regard to the amount he was authorized. As there is no reason to distinguish between buying and selling, we should say that the extra three cartons should be your roommate’s loss. (We would calculate your six cartons according to the price it would have cost, not two-thirds of the discount price.) However, perhaps since he bought them on your behalf and assuming you would have accepted them had he made it safely through customs, it was, for all intents and purposes, your cigarettes that were confiscated.
The Shulchan Aruch (CM 183:5) says that if a shaliach bought barley instead of wheat, then, if there is gain from the change, the meshale’ach (the one who appointed the agent) gains and if there is loss, the agent loses. The Shach (ad loc.:9, citing the Mabit 179) says that the shaliach loses when the loss is from price fluctuations but if an oness (faultless circumstance) unrelated to the mistake caused the incorrectly obtained object to be lost, the meshale’ach absorbs the loss. The Mabit exempts the shali’ach in a case where bandits took merchandise, some of which was not requested. This is difficult because, until he agrees to accept that which was bought, the meshale’ach would seem to not own the merchandise. Some commentaries argue with the Mabit (see K’tzot Hachoshen 183:5) or apply his ruling to limited cases (Netivot Hamishpat 183:7). In any case, the Mabit will not help your roommate, as here the oness, would not have affected the three extra cartons had they not been purchased. Therefore, you have every right to reject the purchase, which ended up causing you a loss.
We might have suggested that since your roommate did you a favor, it is not morally proper to charge him for an honest mistake / reasonable decision he made with noble intentions. However, since you too were just doing a favor (and your three friends are, for whatever reason, not going to pay) and you are already incurring a significant loss, you may hold your roommate to the apparent halacha that he will have to absorb the loss between the price of six cartons and what he paid.
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