Resources for Nedarim 31

The גמרא says that if someone buys something on condition that they be allowed to show it to their in-laws first to see if they like it (similar to today’s return policies), the person is חייב באונסין on the way there and only חייב בגנבה ואבדה on the way back. The reason he is חייב באונסין on the way there is a מחלוקת ראשונים. The ר"ן here says that the buyer is considered a שואל at this time since it isn’t considered as if really bought the object yet. Therefore, since it is כל הנאה שלו he is חייב באונסין like a שואל. This fits well with the rest of the גמרא that compares this to other cases of getting הנאה. It also fits with the גמרא’s qualification that שמואל only said the above mentioned דין by a sale that is very easy for the seller to make. However, if, as the נימוקי יוסף spells out, the item is a regular level of difficulty to sell then the buyer is not חייב באונסין but rather only חייב like a שומר שכר since he doesn’t get so much הנאה, and if the item is particularly hard for the seller to sell then the buyer is only חייב בפּשיעה like a שומר חנם since he almost doing the seller a favor by trying it out. However, רש"י in בבא מציעא דף פּ"א as well as the ר"ן himself in עבודה זרה דף ט"ו say that the reason the buyer is חייב באונסין is because he owns it. So he needs to pay the seller for what he bought no matter what happens. The ר"ן there proves this from the גמרא there that says the following: you cant sell a בהמה גסה to a נכרי before Shabbos lest the נכרי want to test it before buying it and it will be Shabbos and the Jew may come to call to the animal and do מחמר. The גמרא does not seem to be concerned that even without מחמר the animal is doing work for the Jew. It must be that when someone buys something on condition that he tests it first that it is considered fully his. While רש"י and the ר"ן’s פּשט in the other סוגיות works well in the גמרא there, it is much harder to fit into our גמרא since our גמרא is discussing הנאה and if the buyer is the owner then it has nothing to do with הנאה.

There are several נפקא מינה’s between these two opinions as to whether someone who buys something with a return policy is considered the owner. First, can he be מקדיש it? Second, if it is his אתרוג which he bought but got permission to show it first to the Rav, is it considered לכם? Third, what if it was בעליו עמו or מתה מחמת מלאכה which are only a פּטור for a שואל but not an owner?

There is another fascinating question brought by the מנחת שלמה from the שיטה מקובצת: the גמרא says that the buyer agreed to pay טובת הנאה if he doesn’t end up buying the item. If so, why isn’t there an issue of ריבית? In other words, if the whole “purchase” is considered a loan, then how are you allowed to pay back the item plus something for טובת הנאה? This would be similar to the case of renting a gold ring or something where there is no loss in value and no wear and tear on the item where the דין is that it is considered ריבית ( see יו"ד סימן קע"ו סעיף א). רב שלמה זלמן ז"ל is very surprised that no one else is bothered by this question. The שיטה answers that it must be that there is some wear and tear on the item which רב שלמה זלמן ז"ל says must be from the in-laws handling it.

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