Outside the beis medrash of Yeshiva Gedolei Yisrael, Mr. Gross sold framed pictures of many gedolim.
Dani loved to stand and admire the pictures as he walked in and out of the beis medrash. Looking at him were the Sages of the previous generation: Rav Moshe Feinstein, zt”l, Rav S.Z. Auerbach, zt”l, Rav Y.S. Elyashiv, zt”l, and many others.
“We have a lot of gedolim pictures in our house,” Dani proudly told Mr. Gross, as he perused the pictures. “Who is that over there?”
“That’s a Sephardi gadol, Rav Yosef Chaim of Bagdad, commonly known as the Ben Ish Chai,” said Mr. Gross. “It’s a beautiful picture; you can almost feel the radiance of Torah shining from him.”
“I don’t think we have a picture of him in our house,” said Dani. “Can I take it home for the weekend to check if we’re missing him?”
“Sure, no problem,” said Mr. Gross. “It costs $35. You can pay me next week if you decide to keep it.”
Mr. Gross wrapped up the picture and gave it to Dani. Dani took the picture back to his dorm room and placed it carefully on the bookcase.
During the night, a fire broke out in the dormitory. Dani quickly ran out of the room, grabbing only his tefillin. Firefighters arrived quickly and were able to extinguish the fire before it had spread far. When Dani returned to his room, though, he saw that the picture of the Ben Ish Chai had been soaked by the water.
Dani came the following morning to Mr. Gross with the soaked picture. “The picture got ruined in the fire last night,” he said. “I’ll have to pay for it.”
“No, it’s not your fault,” said Mr. Gross. “Unfortunately, other pictures also got ruined by the smoke and water”
“Yes, but I took this one,” said Dani. “I’m responsible for it.”
“But you didn’t decide for sure that you were going to buy it,” insisted Mr. Gross. “Why don’t we take it up with Rabbi Dayan when he comes?”
When Rabbi Dayan arrived, Dani and Mr. Gross approached him. “I took a picture from Mr. Gross to check whether we had it at home, but it got doused in my dorm room by the firefighters,” Dani said. “Must I pay for it?”
“The Gemara [B.B. 88a] teaches that if someone takes merchandise to examine and it is damaged in his hands, for any reason, he is liable,” answered Rabbi Dayan, “provided that a price was set beforehand.”
“Why is that?” asked Mr. Gross.
“It seems there are two reasons,” responded Rabbi Dayan. “Many explain that taking merchandise from a seller with the intention of keeping the item if it proves acceptable is considered like buying it with the option to return, provided the price was set beforehand. For this reason, the seller would also not be able to retract on the sale. ” (C.M. 186:1, 200:11)
“This seems similar to the common practice nowadays – to sell with the right to return the item within 7 or 14 days,” noted Dani. “Obviously, if the merchandise were destroyed during the week, the customer cannot ask for a refund.”
“That is correct,” said Rabbi Dayan. “The halacha is obvious in that case, though. The primary application of this halacha is in cases where the exact time of transaction not clearly defined, e.g., selling second-hand, esrog and lulav, and informal sales such as your case. Even if the customer hasn’t paid yet, he must pay.”
“What is the other reason?” asked Mr. Gross.
“Some explain that when you take merchandise to examine it, it is like borrowing the item,” said Rabbi Dayan. “A person who borrows is also fully liable for the item, even if lost through oness, circumstances beyond his control. However, this would apply only to an in demand, so that the customer has a clear benefit in being able to buy it. The customer would not be considered a borrower, though, for an undesirable item that the seller is interested in unloading.” (Nesivos 186:1)
“Either way I have to pay,” said Dani. “What if I had already decided I was not interested in keeping the photo when it got ruined by the water?”
“If that case, there is a three-way dispute as to whether you are considered a shomer chinam (unpaid guardian), a shomer sachar (paid guardian), or a sho’el (borrower) until you return it,” replied Rabbi Dayan. On account of this dispute, we would say hamotzi meichavero alav hareaya [the burden of the proof is on the claimant]. Thus, if you already paid, you would not be entitled to a refund, but if you hadn’t paid yet, you wouldn’t have to pay.”
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 email@example.com. 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 firstname.lastname@example.org.
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