I recently went to an esrog dealer. Since I am not an expert in the halachos of esrog I selected a few that seemed very nice and asked permission to take them to a local poseik for his opinion. The poseik advised that I buy a particular esrog. On the way back to the esrog dealer, a kid ran into the box holding the esrogim and knocked one of the esrogim to the ground, bruising the esrog. Baruch Hashem it was not the esrog that I had been advised to purchase. However, am I responsible for the esrog since I was carrying it? I should add that I hadn’t seen the kid and was taken totally by surprise.


The main question that needs consideration is your relationship with the esrog. Whenever one has an object in his possession he has a certain relationship with it. If he is the owner it is his. If it belongs to someone else he has the status of a shomeir and the Torah recognizes four types of shomerim. Therefore, our focus is on clarifying your relationship with the esrog. Were you the owner or just a shomeir, and if a shomeir which type?

There is a statement of Shmuel in the Gemoro which deals with your situation. Shmuel didn’t explain what the relationship is but informed us what the din is. Shmuel said that if one takes an object from a craftsman in order to check it out, he is liable even for damages that were beyond his control and for which he was blameless (an oness).

There are two types of relationships where one is liable for this category of damages. An owner is obviously responsible since it is his. Additionally, the type of shomeir who is a sho’eil, a borrower, is also liable. Thus, there are two distinct possible rationales for Shmuel’s ruling. Shmuel might consider one who takes an object from a craftsman in order to check it out to be the owner of the object or to be the borrower of the object. The problem is that both rationales seem to be found in the Gemoro.

The Gemoro in Nedorim (31A) cites Shmuel and limits Shmuel’s ruling to a situation where the demand for the object is much greater than the supply. In such a case, the one who is considered to benefit if the sale is consummated is the customer and not the seller, since the seller can easily find many customers but the customer can’t find many sellers. This lends support to the view that the customer is a sho’eil and not an owner since if he were the owner it would not seem to make any difference whether demand is high or not.

Shmuel’s ruling is also cited in Bava Basra (88A). There the Gemoro makes no distinction about demand for the object, but limits Shmuel’s ruling to an object whose price is known. This strongly indicates that Shmuel’s reasoning is that the object was sold, since, if one borrows an object there is no need to fix a price, whereas if there is a sale it is crucial to fix a price since without a fixed price a customer does not have the required da’as (presence of mind) to purchase the object. A critical element in a person’s decision whether to buy or not is price. Something that is attractive at one price is unattractive at a higher price.

We should note that even if Shmuel considers the object as having been sold, nevertheless the customer has the right to return it to the seller since he only took the object in order to check it out. We are only interpreting Shmuel as saying that while the object is in the possession of the potential customer he is legally considered to be the owner.

We should note that there are quite a few differences between the sale of an object and the loan of the object. Some of the ramifications concern other halachas. For example, in case a gentile takes a Jew’s horse to try it out on Shabbos, if we say that the goy is its owner the Jew will not have any problem with the fact that the goy uses the animal to work for him on Shabbos since it’s the goy’s animal. However, if the goy trying it out is just borrowing the horse, the Jew would not be allowed to let the goy use it on Shabbos since the Jew is the owner.

Another difference, which is very important for us, is that if a sale is taking place, the buyer must make a formal kinyan in order to acquire it.

The Rambam (Mechiro 4, 14) and subsequently the Shulchan Aruch (200, 9) who follows his opinion, write: “One who takes an object from a craftsman’s house is liable for damages which were beyond his control …if he picked up the object with intent to acquire the entire object.” The Sema has difficulty explaining the condition that he must have intent to acquire the entire object.

However, the Gra (200, 34) explains that the Rambam just wishes to exclude one who takes a number of objects with the intent to purchase just one of them. The reason this is excluded is because at the time when the customer picked up each object he did not have intention to acquire it, because he hadn’t yet made a final decision about which object he wished to acquire. The Gra writes that the source for this exclusion is a ruling in the Gemoro (Bava Basra 88A) that if one spent a day selecting green vegetables he does not acquire any of them since he did not make a decision to acquire a particular green vegetable.

In fact, the interpretation of the Gra is the way many Rishonim including the Rashbam explain the Gemoro. Therefore, even if this wasn’t the intention of the Rambam it is decisive in halacha. Therefore, in your situation you weren’t the owner of the esrog at the time it was bruised.

However, as we mentioned earlier, there still is the possibility of your being liable as a sho’eil if the purchase is attractive to you as the customer. The reason is that even if we understand that Shmuel’s rationale was that the one who was checking it out is usually a buyer, nevertheless when, due to other factors, it is not a sale, the one who has the object in his possession is still at least a shomeir of some kind. If the sale is very attractive to the potential buyer then he has the status of a sho’eil as the Gemara stated in Nedorim.

In conclusion: Since you selected more than the amount of esrogim that you intended to purchase, you were not even the temporary owner of any of them, and if the sale did not stand to benefit mainly you, the customer, then you were not a sho’eil. Therefore, you are not liable for the bruise since it was damaged in a manner that was beyond your control.








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