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Bava Metzia, 81

1) THE LIABILITY OF A POTENTIAL BUYER WHO EXAMINES AN OBJECT FOR SALE

QUESTION: The Gemara discusses the degree of liability of a buyer in a conditional purchase, where one who takes an object from a craftsman to send to his Kalah ("Arusaso") to find out if she wants them. He stipulates that if she does not want the object, then he will return them and pay a minimal cost for having taken the object on a trial basis. The Halachah is that if the object was damaged or destroyed through an Ones on the way to the Kalah, then the buyer is fully responsible to pay for it. If the Ones occurred during the return trip, then he is exempt, because during the return trip he was only a Shomer Sachar (who is exempt from liability in cases of Onsin).

Why is the potential buyer obligated for Onsin for an object which he took on a trial basis to check if he wanted to keep it?

The Gemara in Nedarim (31a) understands that his liability for the object on the way home to check it is that of a *Sho'el*. The Gemara there says that he is obligated as a Sho'el because he, the potential buyer, is the sole beneficiary ("Kol Hana'ah Shelo") of the usage of the object, for the case is where the object is in high demand and is easily sold. The fact that he is the sole beneficiary is also the basis for the liability of a normal Sho'el, and thus the potential buyer is comparable to a Sho'el.

However, the Gemara in Nedarim seems to contradict the Gemara in Bava Basra (88a). The Gemara there says that one who takes an object to examine it before buying it is liable for an One only when the object's price has been fixed. This implies that the liability for Onsin is because the person is considered to be a buyer (who has an option to return the object), because the fact that the price is fixed shows that he is definitely interested in buying the object and the price to him is not a concern; he merely wants to examine it to see if it is in good condition. The element of a fixed price plays a role only in a *sale*, where one is interested in buying the object, but as far as a Sho'el is concerned, the presence of a fixed price is totally irrelevant. Thus, the Gemara in Nedarim and the Gemara in Bava Basra seem to contradict each other as to whether his liability for Onsin is that of a buyer, or that of a Sho'el.

ANSWER: The SHITAH MEKUBETZES here reconciles the two Gemaras by explaining that both Halachos are correct. If the price was fixed, then the one who takes the object to examine it can be considered a buyer, in which case he is liable even if the object is not easily sold (and is not "Kol Hana'ah Shelo"). If, on the other hand, no price was fixed, then he cannot be considered a buyer, but he might still be liable for Onsin as a Sho'el if the object is easily sold and the sale would be considered a favor for the buyer. Hence, when he takes the object to examine it, it is purely for the sake of the buyer ("Kol Hana'ah Shelo") and he is deemed a Sho'el and therefore is liable for Onsin. (See NESIVOS HA'MISHPAT 186:1 for further discussion regarding the answer of the Shitah Mekubetzes.) (Y. Marcus)

OPINIONS: The Gemara says that in a case in which two people each give each other an object to guard for the other on the same day, each Shomer is exempt from liability for Onsin because of the Halachah of "Ba'alav Imo," which states that when a Shomer is watching an object for the owner while the owner is with him, the Shomer is exempt (cf. Shemos 22:13-14). The Gemara explicitly says that two people acting as Shomrim for each other constitute "Ba'alav Imo." What is the Halachah when two people *borrow* objects from each other? Does borrowing from each other also constitute "Ba'alav Imo?"

(a) RASHI (DH Shemirah b'Ba'alim) maintains that when one person (Reuven) borrows an object from a lender (Shimon), and then Reuven, the borrower, himself lends a different object to Shimon, the lender, Reuven is not considered "Ba'alav Imo." That is, Reuven is not considered to be doing work with Shimon such that Shimon would be exempt from Onsin. Rather, they each have the full liability of a Sho'el.

(b) The RAMBAM (Hilchos Sechirus 10:2) maintains that when Reuven borrows an object from Shimon, and then Reuven himself lends a different object to Shimon, Reuven *is* considered "Ba'alav Imo."

The S'MA (CM 305:8) explains that the Rambam holds that since one who borrows an object is obligated to guard the object, he is considered to be working for the lender and is thus "Ba'alav Imo."

In explaining the view of Rashi, the NESIVOS HA'MISHPAT (305:2) writes that Rashi holds that since a Sho'el is the sole beneficiary of the agreement ("Kol Hana'ah Shelo"), even his obligation to guard the object is considered to be done for his own benefit. According to this explanation, it could be that Rashi would hold that a Socher also would not be considered "Ba'alav Imo" to the owner of the object, because he is guarding the object for his own benefit (that is, to be able to keep it guarded in order to use it).

RAV ELCHANAN WASSERMAN in KOVETZ SHI'URIM (Kesuvos 34b, DH Hani'ach Avihen) offers a different explanation for the opinion of Rashi. Since a Sho'el is obligated even for an Ones, the object is considered to be his possession temporarily. Consequently, he has no obligation to the object's owner to guard it, but rather he must guard it for his own benefit, in order to be able to return it after the termination of the She'eilah. According to this explanation, in the case of a Socher -- who is not liable for Onsin -- the Socher's obligation to guard the object would certainly be for the benefit of the owner, thus giving him the status of "Ba'alav Imo" to the owner, even according to Rashi.

(Both the opinions of Rashi and the Rambam are cited by the SHULCHAN ARUCH CM 305:6.) (Y. Marcus)

81b