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Compromise and Aftermath: Although beit din reasons that pl could nullify the sale and adjust the amount to be returned, the sides made a compromise in which pl would return the car, and beit din worked with them on figuring out how much def would pay, by working on price lists. As this was happening, pl continued to use the car (no instructions had been given on that point), and the engine was ruined from cumulative overuse. Def is no longer willing to take the car back at any price.
P'ninat Mishpat (827)
Beit Din Eretz Hemda - Gazit
811 - P'ninat Mishpat: Dividing Returns on Partially Cancelled Trip – part II
812 - P'ninat Mishpat: Using Car that Was Supposed to be Returned
813 - P'ninat Mishpat: A Used Car with a Tendency Toward Engine Problems
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Ruling: Majority opinion: Since the car was to be returned, pl had no right to continue using it. Although continued use of a sales item after a blemish is discovered usually precludes nullifying the sale due to mechila (Rambam, Mechira 15:3), that does not apply here after pl went to the trouble of suing to return it (see Shulchan Aruch, Choshen Mishpat 232:4).
Although one who borrows something without permission is like a thief, who has to pay for the stolen object if he is unable to return it intact, for whatever reason, there is a machloket whether that is the case when he did not realize he did not have permission to do so (as believed to be the case here). Even so, a borrower has to pay for all damages to the object even if it was not at all his fault unless the object "died as of a result of proper use" (meita machamat melacha = mmm). Although our case is mmm, the exemption does not apply here based on mmm’s logic. One explanation of mmm is that it is considered that the borrower was deceived by receiving an object that cannot safely do what it was borrowed for (Ramban). Another is that the lender relinquishes rights to payment when the borrower uses it (Rambam). Neither of those explanations applies to pl who did not even have permission to use it, and therefore he has the full obligation of a borrower for any damage. Therefore, the true value of the car at the time it was improperly borrowed should be reduced from the amount def was supposed to pay pl.
The minority opinion views pl as borrowing with permission, considering that he had bought the car and used it, and def did not ask him to stop. Therefore, he is exempt either due to mmm or because until it is returned, he is still considered the owner of the car.
Beit Din Eretz Hemda - Gazit
P'ninat Mishpat A Commercial Rental for a Closed Business – part II
based on ruling 80047 of the Eretz Hemdah-Gazit Rabbinical Courts
Igrot Hare’aya Raffle of Property in Eretz Yisrael for Tzedaka
Igrot Hare’aya – Letters of Rav Kook: – #220
P'ninat Mishpat Payments after a Gradual End of Employment
(Based on ruling 82024 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'NINAT MISHPAT: A Mess of Loans, Repayments and Grievances – part II
based on ruling 83033 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: Smoking Rights in a Rental? – part I
based on ruling 85076 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: A Seller with Questionable Rights to the Property – part I
based on ruling 84062 of the Eretz Hemdah-Gazit Rabbinical Courts
Shoftim Can a Sheitel be Prohibited Because of Avodah Zarah?
A Background Discussion about the use of Indian Hair
Rabbis in Midrash
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