Mr. Halperin was doing his weekly fruit and vegetable shopping at the local store, Pri v’Yerek. Like other fruit and vegetable stores, the stands extended out to the sidewalk.
The store was very busy with many customers doing their shopping for Shabbos. Mr. Halperin carefully chose his tomatoes, cucumbers, peppers, bananas, melons, pears, etc. As he filled each bag, he placed it in the shopping basket at his feet.
While Mr. Halperin was standing by the produce stands, a reckless motorbike driver rode by. He careened into the fruit basket and sent it flying. The fruits and vegetables spilled out of the bags, scattering along the sidewalk and in the street. Many of them were bruised or mashed by the impact or by passing cars.
The motorbike sped off, without the driver even looking behind him, and was soon out of sight.
Mr. Halperin collected the few fruits and vegetables that were nearby and still in good condition. The loss of all the rest of the produce amounted to about $20.
He recalled that a week earlier, a thug had robbed the laden shopping cart that his wife was using in the supermarket, with all its contents. Rabbi Dayan had explained why his wife was not liable for the shopping cart, but did not address the question of the groceries. Now was another opportunity to inquire about them. Mr. Halperin called Rabbi Dayan and asked, “Am I halachically liable for the fruits and vegetables that I chose which were then damaged by the motorbike?”
“The Gemara (B.M. 81a; B.B. 87b-88a) teaches that a person who takes an item from a seller to check whether it is suitable for his purposes, in which case he will pay for it, is liable even for oness until he returns the item or indicates that he does not want it,” replied Rabbi Dayan, “provided that the price is standard or was fixed beforehand” (C.M. 186:1; 200:11).
“Elsewhere, the Gemara (Nedarim 31a-b) qualifies that the person is liable for oness only if the item is zevina charifa – an item in high demand – whereas regarding a regular item – and certainly one that’s hard to sell – the potential customer is liable only as a regular shomer, not for oness.
The Rishonim dispute whether the liability of oness is because the person is considered a buyer of the item meanwhile or a borrower, because he has the option to decide whether to keep the item, whereas the seller can no longer retract and refuse to sell it (see Tosfos B.B. 87b s.v. haloke’ach; Machaneh Ephraim Hil. Shomrim #24).
Nesivos (186:1) suggests that the prospective customer can be liable both as a buyer and as a borrower. When the price is fixed, he is considered a buyer even for regular items (unless the item is in low demand, in which case he will likely decide not to keep it). But he is no longer liable once he indicates that he does not want the item.
However, as a borrower, the prospective customer is liable until he actually returns the item. But that applies only to an item in high demand or that is on sale, because he has the absolute benefit of being able to decide whether to keep it.
Based on these halachos, several contemporary poskim rule that when a person picks up an item in the store with clear intent to buy it – certainly if it is an item on sale or that the customer specifically chose, such as fruit – he is liable even for oness as a buyer or borrower (Torah Lishmah C.M. #349; Mishneh Halachos 14:216; Hayashar v’Hatov, vol. III, pp. 34-36).
“Nevertheless, several poskim maintain that nowadays, the understanding in most stores is that, until checkout, the customer is not considered a buyer, and the store owner could refuse to sell the item, even after the customer has picked it up,” concluded Rabbi Dayan. “Thus, they maintain that the customer is liable for oness only as a borrower for zevina charifa – an item in high demand or on sale; otherwise, he is liable only as a shomer.” (Orchosecha Lamdeini #135; Hayashar v’Hatov, vol. 16, pp. 154-155).
Verdict: According to many poskim, Mr. Halperin is liable for the fruit that he chose, even when lost through oness, either as a buyer or a borrower. According to several contemporary poskim, nowadays he would be liable only as a borrower if the fruit were in high demand or on sale.
