Latest update: April 12th, 2013
“Tonight is Bernie’s birthday,” Jeremy said to his friend, Adam. “We’re planning a surprise birthday party for him. Would you like to join?”
“Of course; what’s the question?” said Adam. “Where will it be?”
“It’s going to be at my house,” said Jeremy. “Bernie’s supposed to come at 8:30 PM, so be here no later than 8:15.”
“I’m really looking forward,” said Adam. “Bernie’s a great guy. What can I bring?”
“A pack of chocolate-chip cookies would be great,” said Jeremy. “You can never go wrong with mouthwatering chocolate-chip cookies!”
Since it was shortly after Pesach, Adam was concerned about chametz she’avar alav ha’Pesach. If a Jew owned chametz on Pesach and did not sell it to a non-Jew, the chametz remains prohibited to eat – and one is even prohibited from deriving any benefit from (O.C. 448:3). He bought the cookies at a corner grocery whose owner did not seem to be Jewish and brought the cookies with him to the party.
“Where did you buy the cookies?” asked Jeremy.
“I bought it at the grocery on the corner,” said Adam. “I’m almost positive the owner is not Jewish.”
“Sorry, but I was told by a reliable kashrus authority that the store is owned by a Jew,” said Jeremy. “He did not sell his chametz, so the cookies are prohibited.”
Jeremy took the pack of cookies, tore it open and dumped the contents into the garbage. Adam looked at him agape. “Why did you do that?” he asked angrily.
“What do you mean?” said Jeremy. “The cookies are chametz she’avar alav haPesach and completely prohibited. What is there to do with them?”
“I could have returned them to the store and gotten my money back,” said Adam.
“The cookies have no monetary value,” replied Jeremy. “The sale was a non-sale, and he owes you the money, anyway.”
“But he won’t refund the money if I don’t return the cookies,” argued Adam. “You’ve made me lose the money, and owe me what I paid for them.”
“How could I have to pay for something that has no monetary value?” asked Jeremy. “It doesn’t make any sense!”
“Whether it has value or not, I need the package of cookies to get my money refunded,” replied Adam. “Bottom line, you’ve caused me a loss!”
“Let’s not argue now,” said Jeremy. “The party’s about to begin. We’ll ask Rabbi Dayan afterward.”
After the party, the Adam and Jeremy went to Rabbi Dayan and asked: “Is Jeremy liable for the cookies?”
“This case is known in halacha as davar hagorem l’mamon, something that has monetary ramifications but no inherent monetary value,” replied Rabbi Dayan. “Jeremy is not liable for the cookies according to most authorities.”
“I don’t think I’ve ever heard of that term,” said Adam. “Can you elaborate?”
“The Gemara [B.K. 98b] discusses the case of a person who stole chametz before Pesach and held it for the duration of Pesach,” replied Rabbi Dayan. “The chametz is now prohibited as chametz she’avar alav haPesach and monetarily worthless. Nonetheless, if the thief returns the stolen chametz intact, he is exempt from additional payment.” (C.M. 363:1)
“Wow, that’s surprising!” said Adam.
“Now, suppose that you destroyed the chametz after Pesach before the thief had a chance to return it,” continued Rabbi Dayan. “The chametz has no intrinsic monetary value, but has ramifications for the thief. If he returns the chametz, he is exempt; if not, he will have to pay what the chametz was worth when he stole it. Do you have to pay the thief for the damage that you caused him?”
“Good question,” said Jeremy. “I don’t know.”
This is a dispute between R. Shimon and the other sages,” explained Rabbi Dayan. “R. Shimon maintains that since the chametz has monetary ramifications for the thief, it is considered something of value to him, so that you have to pay. The sages maintain, however, that since the chametz you destroyed has no inherent monetary value, you are not liable.”
“This seems parallel to our case,” noted Adam.
“Correct, the package of cookies has no intrinsic value, but has ramifications for Adam to get a refund,” said Rabbi Dayan. “We rule like the sages, so that Jeremy is not liable. The Shach [C.M. 386:1,11] cites the opinion of the Ramban that even according to the sages there is an obligation of garmi, but sides against this. Furthermore, in truth, the store owner owes you the refund even if you don’t return the cookies, since he sold you a worthless item. Thus, Jeremy does not have to pay for the cookies, even if the store owner refuses to give a refund without returning the cookies.” (See Pischei Choshen, Nezikin, 3:57; 10:20 regarding grama.)
About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to firstname.lastname@example.org. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail email@example.com.
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