Rabbi Fuerst posited the following case: A group of siblings agreed to
purchase a set of 12 cups for their parents as a gift. Sibling A did the
ordering and when the cups came two of them were cracked. The merchant told
him to keep the cups and the merchant would send another full set. Does the
sibling who did the ordering have to share the “free“ cups with his
siblings. Rabbi Fuerst says no because the first sale is a mekach taut and
the second sale becomes the only sale.
I’d like a better understanding of how this mechanism works assuming that
the first sibling is acting as an agent of the other siblings. thoughts?
bsorot tovot
Joel Rich
RJRich asked:
Rabbi Fuerst posited the following case: A group of siblings agreed to
purchase a set of 12 cups for their parents as a gift. Sibling A did the
ordering and when the cups came two of them were cracked. The
merchant told him to keep the cups and the merchant would send
another full set. Does the sibling who did the ordering have to share
the ?free? cups with his siblings. Rabbi Fuerst says no because the
first sale is a mekach taut and the second sale becomes the only sale.I'd like a better understanding of how this mechanism works assuming
that the first sibling is acting as an agent of the other siblings.
thoughts?
Well, there are two thought processes to analyze. You take it for granted
that the sibling who placed the order is a shaliach, and also take it for
granted that if he is a shaliach, that the broken cups belong to all.
I'd like to question both assumptions.
1) There was no kinyan and no advance payment, so how did the sibling
placing the order become a shaliach? If one sibling fails to pay up, I do
not see how he can be compelled in court to do so, as there was no kinyan
to obligate them to each other.
2) Even if the sibling placing the order would be a shaliach, the broken
cups were not given to him by the brother['s shelichut]; instead, though
the presumed shelichut brought about the perfect storm, those broken cups
were gifted by the seller to the ordering sibling, and the cups were never
the property of the sholchim.
What do you think?
I assumed, but it was not stated, that the ordering sibling paid for the
merchandise on order and the other siblings "owed" their share of the cost
to him.
In your understanding, if the merchant stiffed the ordering sibling, he's
on his own as well?
bsorot tovot
Joel Rich
Halakhically, in you new scenario, yes, the ordering sibling would be
on his own.
Of course, none of that should prevent voluntary sharing of benefits and
burdens. The fact you could easily find a scenario where the ordering
sibling is disadvantaged shows that there is goodwill generating benefit
to generally behaving cooperatively even when one seemingly needlessly
benevolently incurs costs.
Kol tuv,
Arie Folger