By Rabbi Meir Orlian
Rabbi Dayan reviewed the article he had recently written about Dov, who threw Kalman’s collection of manufacturer’s coupons into the incinerator. In principle, Dov is liable for the damage, which is evaluated as the current actuarial market value of the aggregate coupon collection, based on the desirability of the products, the savings relative to the price of the products, the availability of the coupons, expiration dates, etc.
However, Rabbi Dayan pondered a remaining question. The redemption terms of almost all manufacturers’ coupons state: “Coupons are nonassignable and are void if transferred from their original recipient to any other person.” Thus, coupons cannot be sold and have no legal market value!
“Is there value to something that cannot be sold?” Dov had asked.
“Your question involves a fascinating discussion in the Acharonim,” Rabbi Dayan replied. “Consider the following case: Kalman vowed to offer a burnt offering (olah) in the Temple and chose an animal for fulfillment of his vow. You stole the animal. Kalman could not have sold the animal to anyone, but now must set aside another animal to fulfill his vow. Must you pay him the value of his animal?”
“Interesting question,” said Dov. “I have no idea.”
“This is called davar ha’gorem l’mammon (something that has monetary ramifications),” explained Rabbi Dayan. “Rabi Shimon obligates, whereas the Sages exempt. Tosfos (B.K. 71b, s.v. v’savar) write in their first explanation that the Sages do not obligate since the animal has value only to its owner and not to the rest of the world.”
“Similarly, Nesivos (148:1) writes that one who damages something for which the owner cannot receive money is exempt,” continued Rabbi Dayan. “Based on this, one could argue that you are not liable for Kalman’s coupons, since it is illegal to sell them. However, Shach (C.M. 386:1) rejects this explanation and sides with the other answers of Tosfos, since ultimately damage was caused to this person.”
“Consider also this case,” continued Rabbi Dayan. “Kalman has a passport, for which he paid a $110 renewal fee. If you destroy his passport, must you pay its cost, even though it has no market value to others?”
“I would assume so,” replied Dov.
“The Shoel U’meishiv (1:31) holds you liable,” said Rabbi Dayan, “but the Beis Yitzchak (E.H., vol. I, 73:9) writes that the passport is not considered an item of actual value since it is worthless to others.”
“What if you destroyed an amulet written for a specific person?” asked Rabbi Dayan.
“I guess it’s all the same question,” replied Dov.
“Minchas Pittim (C.M. 340:4) suggests that according to Tosfos’s first answer you would be exempt, since it has no sale value to others,” said Rabbi Dayan, “but according to the Shach you are liable.”
“So what is the bottom line?” asked Dov. “Am I liable for Kalman’s coupons?”
“The accepted ruling is in accordance with the Shach, against the Nesivos,” answered Rabbi Dayan. “Therefore, you are liable for the coupons. There is also another distinguishing factor to consider. In all the above cases, the item is inherently of value only to one person. However, the coupons are inherently of value to anyone in the world–it’s just that there are legal limitations about transferring them. Thus, everyone could agree that you are liable. We can compare the coupon to a check payable only to the payee. While it cannot be sold, it is of great inherent value to the owner, not just of monetary ramifications.”
“Therefore, you are liable for incinerating Kalman’s coupons,” concluded Rabbi Dayan. “Nonetheless, since they are not saleable, we would not evaluate them based on the general market, but rather on Kalman himself: How much cash would he be willing to pay to receive such a collection of coupons if it were legal to do so?”
From The BHI Hotline: Revealing Flaws
In A Used Car
Q: I am selling my used car. Which flaws am I obligated to disclose to the buyer? I’m concerned that if I point out each flaw, he will lower his offer and I will not get the full value of the car.
A: If the buyer will have a mechanic examine the car, you are not obligated to disclose the flaws that will be found. However, if there are flaws that people would not accept even in a used car (C.M. 232:6) and the mechanic would likely miss those flaws, you are obligated to disclose them. If the flaw is minor and people are particular only when such a flaw appears in a new car, it is not necessary to disclose it.
This is evident from the Gemara (B.M. 60a) that permits a wine merchant to mix strong wine into mild wine when customers taste the wine before they purchase it. The customer will realize that the wine is a blend of strong and mild wine when tasting it; therefore the merchant is permitted to sell the wine without disclosing that it is mixed, under the assumption that the customer will realize that he is purchasing mild wine that has strong wine added to it.
Some write that adding strong wine is permitted only when customers actually taste the wine before purchasing it, but if most customers do not taste the wine, it is not permitted (Tur, C.M. 228:12; S.A. 14). Others assert that if the taste is discernible and the customer opted not to taste it, he cannot later void the sale since he demonstrated mechilah–that he is not particular (Lechem Mishnah, Mechirah 18:5; Kiryas Melech Rav; Ulam Hamishpat). [Some contend that even according to the second approach, choosing to forgo tasting the wine constitutes mechilah only when the wine visibly changes when the strong wine is mixed in (Aruch Hashulchan, C.M. 228:7)].
Additionally, Sma (232:10) quotes the Maggid Mishneh (Mechirah 15:3) who maintains that if a customer did not examine the purchased item immediately after the sale and consequently did not discover a flaw that would have been found, he forgoes the right to return it (see Erech Lechem 232:3; Maayanei Hachochmah, B.M. 60a). Most poskim disagree with this position or limit its application to specific circumstances (Pischei Teshuvah 1; Nesivos; Maayanei Hachochmah).
Accordingly, in your case, if the car will be examined by a mechanic, you need not disclose any flaws to the customer that the mechanic will discover. One may not rely on that examination for flaws that he would likely not find. If the buyer will not have the car examined by a mechanic, the matter is subject to debate whether forgoing an examination constitutes an acceptance of the flaws, since he could have had it examined and discovered all the flaws.
Even according to those authorities who maintain that when a customer does not examine the purchased item he forgoes the right to return it, if the examination would involve effort or expense, we do not say that by not examining it he forgoes the right to return it (Maharashdam, C.M. 385, cited by Mishpat Shalom 232:3).
Therefore, if you know that the buyer will not have the car examined by a mechanic, you must disclose all the defects and you cannot assume that since he will not have it examined he is knowingly forgoing the right to return it.
Based on writings of Harav Chaim Kohn, shlita
Q: A worker assured me that his fee was fair, but I discovered later that he overcharged me significantly. Do I have legal recourse?
A: It is prohibited to unfairly overcharge (or underpay) for work and exploit the other party’s lack of knowledge (Sma 227:51; Pischei Teshuvah 227:21).
Nonetheless, legal recourse for ona’ah of workers is limited, since the Torah limits ona’ah claims to objects and excludes ona’ah involving people. Therefore, for a po’el who is paid to work specific hours and committed his service to the employer, there is no recourse. However, in the case of a kablan–contractor, who is paid a flat fee for the job and committed to provide the final product, some compare this to a purchase that has legal recourse of ona’ah, while others maintain that he too has no ona’ah (C.M. 227:29, 33, 36; Sma 227:59; Rav Akiva Eiger 227:36).
When a person hired a worker together with his tools, some say there is ona’ah on the percentage of the fee related to renting the tools (Rema 227:33; Machaneh Ephraim, Gezeilah #11; Ketzos 331:1; Pischei Choshen, Sechirus 8:2-3). 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 eâ€‘mail firstname.lastname@example.org. To receive BHI’s free newsletter, Business Weekly, send an eâ€‘mail to email@example.com.