Monday, January 20, 2014

R. Elyashuvs Psak

ואלה המשפטים                       
Rochel borrowed an egg from her neighbor. She cracked it,opened it  and found a blood spot, so she threw it out.
Does Rochel have to repay an egg to her neighbor?

Shulchan Aruch Choshen Mishpat  232:19
“If someone sells eggs to his friend and it was found to be
spoiled and inedible, It is considered a Mekach Taous,(mistaken sale)
and the money must be returned. Today we don’t rule
like this. And a Minhag is Mevatel (nullifies) a Halacha”
(The buyer is stuck with the spoiled eggs)

Accordingly we would think, same applies to Rochel.
She is stuck with this egg and has to repay an egg to her
R.Y.S. Elyashuv zt”l ruled, Rochel doesn’t have to pay back
the egg.

R.Y.S.E. said , the Halacha/Minhag in Shulchan Aruch (232:19)
is applicable only where the eggs were sold for profit (business).
In  business the Minhag, is once sold, the buyer is stuck with it.
(buyer beware) The reason is because the seller can always claim
he would have found another buyer who would have accepted it, as is.

In the case of Rochels neighbor, where there no profit
was involved, there we have no such Minhag.

Therefore we go back to the original Halacha of Mekach Ta’ous.
The neighbor had no monetary loss. Had the egg remained with
her, she too would have thrown it away.  Rochel doesn’t have to pay.

[The two reasons to pay, are not applicable.
1.      Rochel needs to pay for the egg that belongs to her.(bought from neighbor)
It doesn’t belong to her It was a Mekach Ta’ous

2.       Rochel disposed her neighbors egg.(damaged neighbors egg)

No loss to neighbor]

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