By Rabbi Meir Orlian
Outside the beis medrash of Yeshiva Gedolei Yisrael, Mr. Gross sold framed portraits of many gedolim.
Dani loved to stand and admire the pictures when he walked in and out of the beis midrash. Looking at him were sages of the previous generation: HaRav Moshe Feinstein, HaRav Shlomo Zalman Auerbach, HaRav Yosef Shalom Elyashiv, zecher tzaddikim livrachah, and others.
“We have a lot of gedolim pictures in our house,” Dani proudly told Mr. Gross. “Who’s that over there?”
“That’s a Sephardic gadol, HaRav Yosef Chaim of Baghdad, 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 that we have a picture of him in our house,” said Dani. “Can I take it home for the weekend to check?”
“Sure; it costs $35,” said Mr. Gross. “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 fled from his room, grabbing only his tefillin. Firefighters arrived quickly and were able to extinguish the fire.
When Dani returned to his room, though, he saw that the portrait of the Ben Ish Chai was soaked with the water they had sprayed.
The following morning, Dani went 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,” Mr. Gross shook his head. “You don’t have to reimburse me.”
“But I had it,” said Dani, “so I’m responsible for it.”
“You hadn’t decided 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 (Bava Basra 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.
“There seem to be two reasons,” explained Rabbi Dayan. “Many explain that when you take merchandise from a seller with the intention of keeping the item if it proves acceptable, this is considered ‘buying it with the option to return,’ provided that the price was set beforehand. For this reason too, the seller would not be able to retract on the sale.” (C.M. 186:1, 200:11)
“This seems similar to the current common practice 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 could not 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 was not clearly defined, e.g., selling secondhand items, arbaah minim, and informal sales—such as your case. Even if the customer has not paid yet, he must pay if the merchandise gets damaged.”
“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 it is ruined through oness, circumstances beyond his control. However, this would apply only to an item which is 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.” (See Nesivos 186:1.)
“Either way, I have to pay,” said Dani, taking out $35. v
This article is intended for learning purposes and not to be relied upon halacha l’maaseh. There are also issues of dina d’malchusa to consider in actual cases.
Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, which is headed by HaRav Chaim Kohn, shlita, a noted dayan. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, please call the confidential hotline at 877-845-8455 or e‑mail email@example.com. To receive BHI’s free newsletter, Business Weekly, send an e‑mail to firstname.lastname@example.org.