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 Shabbat Parashat Balak| 5767P'ninat MishpatDamage That Occurred While Checking a Vehicle Prior to Purchase - Based on Halacha Psuka, vol. 10 - A Condensation of a Psak by the Beit Din for Monetary Matters of Kiryat Arba, found on “DinTora” website
Case: The defendant wanted to buy a motorcycle from the plaintiff. During a test-drive the gas pedal broke. Who is obligated to pay to fix it?
Ruling: The Shulchan Aruch (Choshen Mishpat 200:11) rules as follows: “One who takes a utensil from a craftsman’s house to check it, if its price was set and it broke in his hands without it being his fault, he [the prospective buyer] is obligated to pay, as, because its price was set, it entered his possession from the time he lifted it up and the seller cannot back out. This is only when he lifted it up in order to acquire the whole thing, and the object to be sold is dear to the buyer. However, if it is an object that the seller despises and he seeks and pursues [the opportunity] to sell it, it is in the possession of the seller until he sets the price and the buyer lifts it up after the price was set.”
According to the Shulchan Aruch’s ruling, one who checks an object within the general process of buying it is obligated in onsim (damages including those under extenuating circumstances) when the following circumstances are fulfilled:
1. The object has a set price – There is a machloket on the parameters of a set price. The Rashbam explains that it is referring to a case where the objects are small and have a uniform price. According to the Rashba, it means that the seller already came to an exact determination of its price. The Magid Mishneh understands that the Rambam accepts the Rashbam’s opinion.
2. The buyer took the object with intent to acquire it.
3. The seller is not desperate to sell it.
In this case, none of the conditions were met. The seller is as anxious to sell it as the buyer is to obtain it. Therefore, the level of benefit that the buyer has is not greater than that of a shomer sachar (a hired watchman). In this case, the buyer also did not perform any action which can serve as a kinyan (act of acquisition). Finally, the price of the motorcycle is not set. The price quoted is the starting price, but it is liable to change as a result of the inspection and the issues that it uncovers. Therefore, the Shulchan Aruch’s ruling is not relevant in this case. Rather, the buyer is like a shomer sachar.This is because he gains from the possibility of inspecting the motorcycle which is likely to lead to the desired result that he will be able to buy it as he wants. In this case, the damage was that of an oness. Therefore, the buyer is exempt because a shomer sachar is obligated only in negligence, loss, and theft, not oness (damage under extenuating circumstances).
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