Shabbat Parashat Ki Tisa | 5770
Ask the Rabbi: Damage to a Sales Item “On Approval”
Question: I found an apparently suitable cello to buy and received permission from the seller to take it “on approval” (trial period during which one can return it without explanation). During this time, one of the strings broke while I was tuning the cello. When I returned the instrument to her, having decided not to buy it, she demanded payment for the broken string, and I paid. What does halacha say? Am I a “sho’el” (borrower)? (I used it only for testing and not after I made the decision to return it.) Would breaking the string obligate me to pay, as it seems to be meita machamat melacha [see below]?
Answer: It appears that you are asking from halachic curiosity and do not have plans of demanding your money back. Thus we do not have to be as rigorous in factoring into the answer all issues, some of which may be unknown to us after hearing from only one side. We think your excellent question has an interesting provisional answer.
The gemara (Nedarim 31a; Bava Batra 87b) tells of one who took a vessel from its producer so he could check it and keep it if he liked it. Shmuel says that if something happened to the vessel b’oness (by no fault of his) he is still obligated to pay, and this is how the Shulchan Aruch (Choshen Mishpat 200:11) rules, in a case where the price was set.
This case would seem to be the same. However, the point of meita machamat melacha (=mmm) is a good one. Even a sho’el who is obligated even when something went awry b’oness is exempt if the object died, broke, etc. as a result of being used in a normal manner (Shulchan Aruch, CM 340:1), and tuning the cello seems to be a classic exemption. However, we must understand the halachic mechanism that normally obligates the provisional buyer. The Rash in Tosafot (Bava Batra 87b) explains that since the buyer is in the enviable position of being able to buy or return the object as he likes, we demand of him the broad responsibilities of a sho’el, who also has the most benefit from his arrangement. Rashi (Bava Metzia 81a) says that the logic of the obligation is that the presumed sale makes the “taker” considered a buyer (lokei’ach) and so when something happened to it, it is naturally his loss. The Netivot Hamishpat (186:1) says that actually both possibilities exist, and it depends on the case.
Where would there be a difference between the approaches? Among ideas given by various Acharonim, the Machane Ephrayim (Shomrim 24) says that a case is when the seller was working for the buyer at the time of the sale. If the obligation is because of sho’el, it will not apply because of a sho’el’s special exemption of b’alav imo. If the obligation is based on lokei’ach, it would make no difference as once he bought it, the loss is the buyer’s problem. Similarly, our case should likely be another difference between the approaches, as mmm is a special exemption of a sho’el but should not impact if one who is considered a lokei’ach. Since the majority opinion is of lokei’ach (Pitchei Choshen, Kinyanim 13:(43), and according to the Netivot Hamishpat, both types of obligation apply), you seem to have been obligated.
However, one might be able to distinguish as follows. How can one be a lokei’ach if he acted on his right to back out? The Tur (CM 200) implies that the condition was that he could back out if he returns the object intact. Regarding a classic damage, like a theft or an animal dying, which is a total loss, there is no way to back out of the deal; consequently, the buyer loses. It is possible, though, since the cello was returned, the seller’s attempt to obligate you must follow the regular rules of sho’el, for which mmm exempts you.
In theory, to exempt yourself, you might need to prove that it is mmm in a manner that you are without fault, or swear on the matter (CM 334:1). Because of that and the halachic uncertainty presented above, a compromise would be a reasonable solution. It would be difficult to legally force a return of the payment.
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