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?
In last week’s article we learned that you do not have to return wine that costs two hundred dollars. We considered two possible reasons why you could have been responsible to return a two hundred dollar bottle and we ruled out both of these possibilities.
The first reason you could have been responsible is because when one borrows he automatically becomes responsible to return something identical to what he borrowed. If one borrows money he must return the equivalent amount of money, if one borrows food he must return the same type of food. However, in your case since it was obvious that you did not intend to borrow two hundred dollar wine you did not intend to obligate yourself to return such expensive wine. Even though you did commit yourself to return a similar bottle, that commitment was based on an incorrect assumption and is similar to a sale, which is classified as a mekach to’us, where the rule is that even though the customer obligated himself to pay for what he received, nevertheless, that obligation is invalid. Similarly, the obligation you accepted upon yourself, namely, to return the identical bottle is invalid.
The second possible reason that you could have been liable is because since you did not legally acquire his wine effectively you “damaged” his wine by drinking it. We proved that when one mistakenly damages by normal usage another person’s object that he thinks is his he is not liable for the damages that result from his error.
Having proven that you do not have to return a two-hundred dollar bottle, we left open the question of what you do have to return. In this article, we will discover that there are two independent sources to create liability for a lesser amount than the full two hundred dollars.
The first source is that you did not totally err. You expected to receive wine and you did receive wine. Your error was only that you did not think that you would receive such expensive wine. Therefore, as much as you could have expected the wine to be worth you are liable for. This is similar to the Gemara (BK 61B) that is ruled by the Shulchan Aruch (418, 13) that if a person set fire to another person’s haystack he is not liable for objects that were hidden inside the haystack which are not usually hidden in there. The reason is that the one who set the haystack ablaze never accepted upon himself liability for these hidden objects. However, he is responsible to pay for a haystack filled with hay since for that he did accept responsibility. We should note that the Shulchan Aruch (388, 1) rules like Tosafos (BK 62A) that this rule applies even if a person damaged directly and not by means of fire.
A case which is very similar to yours is ruled by the Mordechai (BK 207). A person lost a sword he had borrowed from another person. After it became lost the borrower discovered that he had borrowed an unusually expensive sword. The Mordechai proves from the Gemara, which we just cited, that the borrower only has to pay the value of a typical sword (The Ketsos (291, 4) only disagrees and maintains that the borrower must pay the full-value of the sword in case the borrower used the sword after he realized that it was expensive, but in a case like yours, where you did not realize that the wine was expensive the Ketsos would agree that you are only liable for what wine typically costs). Thus, we see again that even though the borrower is not liable for the full value of the sword, nonetheless he is liable for what he expected the sword to be worth.
In your case, you had permission to drink the wine that halachically belonged to your neighbor just that your neighbor expected payment in full and you expected to pay much less for his wine (i.e. you did not anticipate that you would need to pay for the difference in value). A similar case was discussed by the Terumas Hadeshen (317) whose decision is ruled by the Rama (246, 17). In his situation, a son-in-law ate by his father-in-law, thinking at the time that he could eat for free but eventually his father-in-law demanded payment. The Terumas Hadeshen ruled that the son-in-law must pay. There is a dispute between the Maharit (Even Ho’ezer 21) who understands that the reason the son-in-law must pay is because he “damaged” his father-in-law’s food by consuming it and the Ketsos (246, 2) who argues that since the father-in-law gave the son-in-law permission to eat the food the action of the son-in-law cannot be classified as an act of damage. Rather, the Ketsos maintains that the reason the son-in-law must pay is because he benefitted from the father-in-law’s food at his father-in-law’s expense. This dispute would pertain to your case as well. According to the Maharit, you are liable because you damaged your neighbor’s wine. As we saw before, as much as you thought you owed for damaging you must pay (Here, where you did not intend to damage your neighbor, even those who disagree with Tosafos, in general, would agree that you do not have to pay more than the amount you thought the wine was worth, as we saw in the previous article.). Therefore, the amount you anticipated the wine could be worth, you must pay. Similarly, if one understands the Terumas Hadeshen like the Ketsos you must pay the amount you anticipated the wine could be worth since you committed yourself to pay that amount, which shows that the wine was worth that much for you and effectively you benefitted that amount from the wine at the expense of your neighbor.
Therefore, we have established that you are liable for the amount that you should have anticipated that perhaps the wine was worth.
In your case, where you told the lender that you do not like wine and do not buy wine for Kiddush you need not pay any more that this amount. However, another person who does enjoy wine would have to pay more because there is a second reason a person has to pay when he eats another person’s food.
The reason is that one must pay for the benefit he derives from another person’s possessions if the owner suffers even a small loss even if the one who benefitted would not have been liable for damages. This is called by the Gemara (many places including BK 20B) ze nehene veze choseir.
There are several situations that are discussed by the Gemara and poskim where a person ate someone else’s food and was not liable for damages but nevertheless was required to pay the value of the benefit he derived from the food he ate. According to the previous Ketsos, the case of the Terumas Hadeshen is one example of this phenomenon.
A situation that is discussed in the Gemara is where orphans found a cow among their deceased father’s possessions and thinking that it was theirs they slaughtered it and ate the meat. Tosafos (BK 27B) explains that they are not liable for damaging the cow because they were an oness-they had no reason to suspect that the animal was not theirs. Nevertheless, the Gemara (Kesubos 34B) rules that they must pay a “cheap price” for the value of the meat and this is ruled by the Shulchan Aruch (341, 4). The reason they must pay this price is because they benefitted from the meat at the expense of the true owner of the cow. However, they were not required to pay the full price because they normally did not buy such expensive meat. The Gemara does not specify what is the meaning of a “cheap price” for the meat.
However, there is another Gemoro that discusses another example of this phenomenon and there an amount is specified.
The Gemara (BB 146B) discusses a groom who brought gifts of food to his fiancée’s family and then his fiancée broke up the engagement. The Gemara rules that the fiancée’s family must pay for the food they consumed. Even though when they ate the food they did not anticipate that they would have to pay, nevertheless, since in truth they benefitted at the groom’s expense (since he would have never given them presents if he would have anticipated that the engagement would be broken by his fiancée) they must pay. Again the assumption was that they would not have eaten such expensive food if they would have anticipated that they would eventually have to pay for it. The Gemara again writes that they must pay a “cheap price” for the food but here the Gemara specifies that a “cheap price” means two thirds of the full-value.
Many Rishonim (Ramban BM 42B, Ritvo: BB 146B, Kesubos 34B etc.) write that this is not an iron-clad price but each case must be judged individually with the underlying principle being that the one who benefitted must pay for the amount of benefit that he derived. This is the explanation of the Sema (341, 10) of what the Shulchan Aruch means when he rules that the orphans must pay two thirds of the full-price for the meat they consumed. The Sema says Chazal reckoned that even one who normally does not eat meat, because of its cost, would eat meat if he was able to acquire it at two thirds of the usual price.
Thus, we have a rule that we can apply to one who enjoys good wine and borrowed wine that costs much more than he anticipated. We must estimate how much he would have been willing to pay for such good wine. Even if, for example, he never bought wine that cost more than seventy five dollars we have to consider what price he would have been willing to pay for wine that retailed for two hundred dollars. This does not apply to you since you don’t enjoy wine and would not have paid anything extra but it applies to one who does enjoy good wine.
In conclusion: You, who don’t enjoy good wine, have to pay what you reasonably could have expected the wine you borrowed to be worth. Another person who does enjoy good wine, in your situation, would have to pay the amount we estimate he would have been willing to pay for such good but expensive wine.