As the Days of Judgement and Yomim Tovim approach, many men may find themselves needing a new suit.
Let’s name one of these men Reuven.
Reuven went to his local frum clothing store. He tried on a new suit but damaged it in the process. What’s the halacha? Does Reuven have to pay?
The Starting Point – The Gemara in Bava Basra
The discussion begins with a Gemara in Bava Basra (87b), which quotes the ruling of Shmuel.
Shmuel rules that if someone takes a vessel in order to inspect it and the vessel breaks, the potential purchaser is liable.
Why?
There are three approaches found in the Rishonim:
1 – The Borrower Liability – The Approach of the Rosh and the Ran
The Rosh and Ran (Nedarim 31a) explain the liability stems from the purchaser’s status as a sho’el – a borrower.
The Torah enumerates four types of “watchmen” in Parshas Mishpatim. Of these four, the watchman whose liability obligation is most severe is the sho’el – the borrower. A borrower is responsible to pay for any damages to the borrowed object, even for damages resulting from a complete accident.
The Rosh and Ran argue that when a potential purchaser picks up an item to inspect it, he has the status of a borrower. Therefore, he is liable for any damages, even for complete accidents.
2 – The Conditional Sale Liability – The Approach of the Ramah
The Ramah explains that the liability stems from a different source.
When a purchaser picks up an item in order to inspect it, the two parties have essentially made an agreement. They agree that the purchaser will buy the object unless he decides to back out. While the purchaser retains the right to back out, the item is deemed to be his as long as he doesn’t actively back out.
Therefore, if the item breaks before the purchaser backs out, the purchaser is deemed to have already bought it and therefore must pay.
3 – The Responsibility Approach – The Approach of the Ramban
Ramban agrees in principle to the Ramah that when a purchaser inspects an item, he has conditionally purchased it.
However, the Ramban explains that this isn’t why the purchaser pays for damages. Rather, the obligation is incurred because the inspected item entered the purchaser’s domain and the purchaser has an obligation to return the object (or its value) to the owner – whether the item has been purchased or not. The obligation to pay doesn’t stem from any purchase – rather, it stems from the obligation of hashava – to return the item to its owner.
The Difference Between The Approaches
Is there a nafka mina (practical difference) between these approaches?
Absolutely.
The Tur (Choshen Mishpat 200) discusses a case where the purchaser inspected the item but then said that he no longer intends to purchase it. What’s the halacha if the item broke before he returned it to the seller?
The Rashbam rules that the purchaser remains liable. The Nesivos (186:1) explains that the Rashbam holds like the Rosh and Ran that the purchaser has the status of a sho’el and is therefore liable for any accidents. This holds true even if the purchaser announces that he no longer intends to purchase the item. The announcement does not make him any less of a sho’el and he must pay for accidental damage.
The Ramah, based on his opinion above, says that the purchaser is not liable. Since he made clear that he’s no longer purchasing the object, he has already backed out of the transaction. His obligation to pay for accidents only stemmed from his purchase of the object and he’s no longer liable if the transaction was nullified. The purchaser does remain liable for damage that came through negligence, as he retains the status of a shomer chinam (an unpaid watchman) who must pay for negligence. That said, he’s no longer responsible for accidental damage that was not caused by negligence.
The Tur quotes an additional opinion that the purchaser is like a paid watchman – a shomer sachar. A shomer sachar is responsible for both negligence and geneiva v’aveidah (theft and loss), but is not responsible for unavoidable accidents.
Are There Any Limitations?
The Gemara notes that Shmuel’s ruling only applies where there is a set price. If there isn’t a set price for an item, it remains in the seller’s possession and the purchaser isn’t liable for accidental damage.
Rav Menashe Klein (Mishneh Halachos YD 216) notes that nowadays, stores set prices on all goods. Therefore, the purchaser is responsible for accidental damage.
Do You Need to Pick it Up?
The Shulchan Aruch rules that the purchaser is only liable if he picked the item with intent to acquire it and purchase it (or performed some other kinyan on the item). This ruling is based on the opinion of the Rambam.
The Sma notes that the Tosfos, Rosh and Tur disagree. They hold that even if the purchaser doesn’t perform a kinyan, he’s still liable as long as it entered his domain. The Sma wonders why this opinion isn’t even quoted by the Shulchan Aruch as a dissenting view and leaves the matter unanswered.
Bottom line, poskim should be consulted on a practical level. Wishing everyone a kesiva v’chasima tova!