Recently, when I forgot to buy grape juice for Shabbos, I went to my neighbor and asked to borrow a bottle of grape juice. My neighbor replied that he didn’t have any grape juice but he could lend me a bottle of wine. I told him that I don’t really like wine but, since there was no alternative, I would take the bottle of wine. We made up that I would return to him the same wine after Shabbos. When I went to the store to buy an identical bottle of wine I was shocked to discover that the bottle I borrowed cost two hundred dollars. I would have never borrowed such expensive wine, especially since I really don’t like any wine. On Friday night I could have made Kiddush on challah and for the day I could have found another solution. Am I obligated to return such expensive wine?
The first step, as always, is to understand what happened from a halachic perspective. Since your agreement was to return the exact type of bottle in place of the bottle you received, what you did was to borrow a bottle of wine.
In Hebrew there are two separate words. One (lovoh) means to borrow something with the understanding that something equivalent will be returned, but not the original object. This is generally the case when borrowing money. The other (sho’al) means to borrow something with the expectation that the original object will itself be returned, such as when borrowing someone’s car or a tool of his.
In this case, you borrowed the wine in the first sense, since the expectation was that you would return an equivalent bottle of wine but not the original one. This would generally be the case when borrowing something consumable such as food. We find in the Gemara that the concept of borrowing is not confined to money but extends to objects as well. For example, the Gemara (BM 61A) discusses borrowing food in the context of ribbis.
Thus, what you did were two actions: 1] You borrowed a bottle of wine, and 2] You drank it. Both of these actions were done by mistake since: 1] You would not have borrowed such expensive wine on purpose, and 2] Had you discovered after borrowing it that it was so expensive you would not have drunk it. Therefore, we will study the legal ramifications of each of these actions as performed based on a false impression.
When one purchases something based on a false impression of what it is, we classify the sale as a mekach to’us and the sale is invalid. An example that is discussed in the Gemara (BB 92A) concerns a person who purchased an ox in order to plow with it, but who received an uncontrollable ox that was only suitable for slaughtering. The Gemara rules that if it was clear at the time of the sale that the customer’s intention was to use the ox for plowing, the sale is invalid and the customer is entitled to a full refund of his money. The rationale is that in order for a sale to be valid it is not enough to just perform actions such as an act of kinyan, but both parties have to want it to take place. When one acts in error there is a lack of consent or desire for the transaction to take place and this makes the transaction invalid.
For example, in the case of the ox, a kinyan was performed on an ox which was only fit for slaughtering. But since the buyer wanted an ox to plow with, he did not really want to acquire the ox upon which he performed his act of kinyan. Since the buyer did not really want the transaction to take place, therefore his kinyan was invalid.
Similarly, it would seem that the same should be true when the interaction between two parties is not a sale but a loan of the first kind. Thus if a loan of the first kind took place based on an error, then the loan is not valid and the object which was “borrowed,” in reality legally remained in the possession of the lender. The reason is because when one borrows an object in this way, he is legally acquiring this specific object. However, instead of having to pay money for it as in a sale, he has to pay back the same type of object.
In your situation you, the borrower, did not intend to borrow or to drink such expensive wine. Therefore, if the concept of mekach to’us extends to loans as well, from a legal point of view the wine remained in the possession of your neighbor and you actually drank his wine.
In fact, we find evidence that the concept of mekach to’us does apply to loans as well. The Mishna Lamelech (Malveh 8, 1 end, and his contention is supported by the Machane Efraim Ribbis 37 and Chavos Da’as 161, 5) proves that if a person lent money with interest because the two parties thought that taking interest was allowed, and later the borrower realized that he is not allowed to pay interest and thus will refuse to pay interest, the lender may demand the immediate return of his money since he can argue that he only extended the loan in order to receive interest. When one extends a loan he is normally unable to demand repayment before the end of the term contracted, because he committed himself, at the time the loan was granted, to allow the borrower to use the money until the end of that term. However, since in this case his commitment was made based on incorrect information, the commitment is a mekach to’us and thus invalid.
Similarly, since your commitment to repay was based on incorrect information, you never legally borrowed the wine that you received. Rather, the wine remained the wine of your neighbor and thus in legal terms what happened was that you mistakenly drank your neighbor’s wine.
Having established that there was no loan, we have to consider the issue of payment for the wine. As we noted, the legal description of what you did was to drink your neighbor’s wine in error. This is exactly the same situation as when a sale was invalid due to a mistake – the classical case of mekach to’us – since in both cases something is sitting by a person who mistakenly thinks it is his. The fact that in one case what caused it to come into the hands of the recipient was an invalid sale and in another case it was an invalid loan, has no bearing on the law.
The case where an object came into the hands of the recipient because of a mistaken and invalid sale is discussed in the Shulchan Aruch (CM 232, 21). The case is that someone bought seeds to plant and the seeds failed to sprout. Since the seeds were bought to plant and not to eat, the sale was invalid and the customer is entitled to a full refund of the money he paid to acquire the seeds. Even though he does not return the seeds to the seller he is still entitled to a full refund and we don’t say that the customer has to pay for the seeds that he damaged by trying to plant them. The reason is because his behavior was normal for one who purchases seeds to plant. (See Ritvo BB 92A.)
An application of this is the case of one who purchased a sefer and wrote his name and/or notes in the sefer and later discovered that the sefer was missing a few pages. The Pischei Choshen (Ono’o chapter 13, footnote 28) rules that the customer may, nonetheless, return the sefer since the sale is a mekach to’us. He is still entitled to a full refund even though by writing his name in the sefer he prevented the seller from fixing the sefer and selling it to another customer at a discount.
Similarly, the Shulchan Aruch (ibid.) rules that if someone buys an object and requests delivery of the object to his home and he later discovers that the object was imperfect and thus the sale is invalid because of mekach to’us, the seller must pay the cost of shipping the object back. The reason the seller cannot claim that the added expense is due to the customer’s transporting it to his home and thus not his responsibility, is because the customer acted with the seller’s permission.
Similarly in your situation, since you had your neighbor’s express permission to drink what was actually his wine you are not liable for damaging his wine by consuming it.
We should note that this reasoning is true even if your neighbor was unaware that he lent you very expensive wine. We see in the Gemara (BM 42B) that the concept of mekach to’us applies even if the seller himself was unaware of the imperfection. The concept of mekach to’us has nothing to do with blame. It is simply, as we wrote earlier, a result of lack of desire and consent for the transaction to take place.
Even though you do not have to pay for the damage you did to the wine, you do have to pay for the benefit you had from it. In the case of a very expensive wine, the benefit is much less than the damage. This is similar to what the Gemoro (BK 20A) writes in case an ox eats someone else’s expensive food that was sitting in the public thoroughfare. Even though the ox’s owner does not have to pay for damages his ox caused, he does have to pay for the benefit he had from the food in not having to feed his ox cheap ox food.
Similarly, we find this concept in the case of orphans who, after they slaughtered a cow, which they saw among their inherited possessions, and ate its meat, found out that the cow really belonged to another person. The Gemoro (Kesubos 34B) rules that the orphans don’t have to pay for the full damages since they were reasonably unaware that it belonged to someone else. However they still must pay for the benefit they derived from eating the meat.
In conclusion: You do not have to return a bottle of the expensive wine that you drank but you do have to pay for the benefit you derived from the wine. In the coming article we will Be”H determine how much money that is in your case.