Story LinePurposeful PurchaseRabbi Meir Orlean
Mr. Landau came into Schein’s Shoe Store.
“Can I help you?” asked a young salesman.
“I need a good, comfortable shoe, but not too expensive,” said Mr. Landau. “A style similar to what I’m wearing in size 10.”
“I’ll find some options,” said the salesman, and he brought over five boxes of shoes.
Mr. Landau chose a pair and tried it on. “These shoes feel comfortable,” he said. “Are they leather? My feet are sensitive.”
“Yes, we sell only leather shoes in our store,” replied the salesman proudly.
“Then I’ll take them,” said Mr. Landau.
Mr. Landau paid and went home. Three days later, he returned with the shoes in hand.
“I wore the shoes for two days, but they didn’t feel right,” he said. “My son noticed that the shoes are not all-leather — only the uppers. The rest of the shoe is synthetic.”
“I can’t accept shoes for return after they’ve been worn,” said the salesman.
“But you misled me,” argued Mr. Landau. “I specifically asked if the shoes were leather, and you said that they were.”
“I never said that they were ‘all-leather,’” replied the salesman. “Shoes with leather uppers are also called ‘leather shoes.’”
“But I told you that my feet were sensitive,” said Mr. Landau. “Under doctor’s orders I always buy all-leather shoes.”
“I’m relatively new in the store,” said the salesman. “I don’t know what you buy. You asked if the shoes were leather, and I said that they were, since some people call shoes with leather uppers ‘leather shoes,’ even those with sensitive feet. Anyway, all-leather would have cost more!”
Mr. Landau decided to consult with Rabbi Dayan. “Is the sale invalid because I meant all-leather?” he asked.
“Since you already paid, the store does not have to accept the return,” answered Rabbi Dayan. “This is true even if most people would mean all-leather, unless the salesman knew that you always bought all-leather.”
“Please explain,” asked Mr. Landau.
“Regarding an ox that was sold, but proved to be wild, if purchased for plowing it is considered a mekach ta’us (erroneous purchase) and void, but if purchased for slaughter the sale is valid,” replied Rabbi Dayan.
“When there is doubt for what purpose it was purchased, Shmuel (B.K. 46a; B.B. 92a) rules hamotzi me’chaveiro alav har’eayah — the burden of the proof is on the plaintiff, even against the majority!
“Thus, even if most people buy for plowing, since some people purchase for slaughter, the seller does not have to take back the ox once the customer paid” (C.M. 232:23).
“What if the customer hadn’t paid yet?” asked Mr. Landau.
“In that case, since the customer holds the money, he could claim mekach ta’us and return the ox,” answered Rabbi Dayan.
“Some maintain that this is true even if most people purchase for slaughter, since here the customer is in possession and the burden of proof is on the seller; others disagree in this case that the majority upholds the sale.” (See Nesivos 232:12; Aruch HaShulchan 232:36)
“Does it matter what the customer usually buys for or what the price is?” asked Mr. Landau.
“Yes, indeed,” replied Rabbi Dayan. “If the seller knows that the customer is a slaughterhouse, we presume it is for slaughter; if he is a farmer who plows and does not deal with meat, we presume it is for plowing. Similarly, if there is a clear price discrepancy between an ox for plowing and an ox for slaughter, the price can be indicative” (Pischei Choshen, Ona’ah 12:15-18).
“How does this relate to our case?” asked Mr. Landau.
“If the seller knew that you always purchased all-leather shoes, it would be considered mekach taus,” replied Rabbi Dayan. “However, since he did not know, once you paid and the store holds the money, they can claim that leather uppers are also called ‘leather shoes.’”
From the BHI HotlineShoel or Not?
I saw an ad for a dining room table and went to the seller’s house to see it. I liked the table, we negotiated a price and paid him for the table. Since my car is not big enough to transport the table, the seller lent me his SUV to transport the table home. While his SUV was parked in front of my home, an unidentified person threw a stone that shattered one of the windows.
Q: Am I liable to pay for the broken window?
A: The first issue is whether you are a shoel (borrower) who is liable even in cases of oness — circumstances beyond your control.
Poskim discuss a similar case. Reuven purchased some wine but did not have a container to transport the wine home. Shimon, the wine merchant, loaned Reuven a utensil to use to bring the wine home. While Reuven had the utensil, it broke as a result of an oness. On the one hand, Reuven borrowed the utensil and as a shoel he should be liable even in cases of oness. However, the defining characteristic of a shoel is that he has all of the benefit from the relationship (kol hahanaah shelo). In this situation, since Shimon also benefited, since loaning Reuven the utensil allowed him to complete the sale, Reuven should be categorized as a socher (renter) who is exempt for liability in a circumstance of oness (see also Sema 72:21).
Precedent for this is when Levi loans money to Yehudah and takes something of Yehudah’s as security (mashkon). If Yehudah lets Levi use the mashkon, Levi is categorized as a socher rather than a shoel. The reason is that Yehudah also benefits from the relationship, since allowing Levi to use the mashkon helped him obtain a loan (C.M. 72:4 and Shach C.M. 72:30). [It must be emphasized that such an agreement might violate the prohibition of ribbis (see C.M. 72:1, Nesivos 72:18 and Aruch HaShulchan 72:11).]
This ruling has its limitations. The seller is considered a beneficiary only when he is looking to get rid of the merchandise since in such a situation, he benefits from the fact that the customer was able to take the merchandise home. However, when the merchandise is in demand and many people are interested in purchasing the merchandise, the customer is the sole beneficiary when he borrows the merchant’s utensil, and is thus categorized as a shoel (see Taz, C.M. 72:40). [There is also a third category of regular merchandise where both parties benefit; see Taz ibid. and Imrei Yosher 2:47.]
Accordingly, a used dining room table is difficult to sell and thus the seller has a strong interest in assisting the buyer in transporting it to his home. Since the seller also benefits from loaning his vehicle, the buyer is a socher and consequently, exempt from liability for oness.
Some authorities, however, contend that the buyer is in fact categorized as a shoel even in this case. The buyer is the primary beneficiary of the relationship and the seller’s benefit is incidental; therefore, the buyer is categorized as a shoel (B.M. 94b) and is thus liable for oness (Imrei Yosher 2:47 and Teshuvas Ben Poras 2:3).
Moreover, the seller’s benefit is a factor only when the transaction was not yet completed and use of the car is essential to complete the transaction. In such a case, one could argue that the seller also benefits. However, if the transaction was already completed and the buyer cannot renege on the purchase, the buyer is the sole beneficiary of the loan of the utensil or car and is a shoel (Imrei Yosher 2:47 and Teshuvas Ben Poras 2:3).
Money mattersAdditional Loan#412
Q: I guaranteed a loan from a gemach and provided them with an undated check. The borrower repaid the loan, but immediately borrowed again before the check was returned, relying on my check. Am I liable for the second loan?
A: The guarantor is liable only for the loan towards which he committed. Once that loan is repaid or canceled, the commitment is void, even if he would have agreed to serve as a guarantor for the second loan, unless he explicitly accepted responsibility for additional loans. (Shach 129:6; Aruch HaShulchan 129:9)
According to many, this applies also if the guarantor gave an open check, but did not know of the second loan (Pischei Teshuvah 129:1; Ketzos 48:3).
Nonetheless, if the borrower took a second loan before repaying the first, and after both became due repaid one, the lender can claim that he accepted the money towards the second loan, so that the first loan and its guarantee remain in force, unless the lender explicitly consented to accept the payment towards the loan with the guarantee (C.M. 83:2-3; Pischei Choshen, Halvaah 13:).