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Hilchos Choshen Mishpat

Volume I : Number 6

Liability For Bad Advice

Question:

A person was looking to purchase a used car. He approached a friend of his who has a reputation to have expertise in cars to ask advice regarding one specific car. The friend inspected the exterior of the car visually, and advised the potential buyer to buy it. Based on this advice, the car was purchased.

After driving the car for a few days, the buyer realized that there were severe problems with the engine of the car. Had there been a thorough evaluation of the car before purchase, these defects would have detected. He has tried to find the seller to demand a refund, but the seller is no where to be found.

Is the friend who advised the purchaser to acquire the car liable for the loss caused by his advice?

What is the Halacha?


Answer:

  1. If the friend received payment for his advice, he is obligated to pay for any direct loss that resulted from his advice. This is true even if the purchaser did not tell the adviser that he is going to buy the car based solely on his advice.

  2. If the adviser is not getting paid for his advice, we make the following distinction. If he really is an expert on cars but happened to make an unintentional mistake this once, he is not liable to pay for the loss. However, he must provide proof that he is an expert.

    However, if he is not an expert on this subject, and offered his advice anyway without telling the buyer that he has no expertise, or without telling him not to rely solely on his advice, if it was clear that the buyer was going to solely rely on his advice, the adviser must pay for the loss caused by his advice. This is because this case goes into the classification of Garmi (see below), in which a person is held liable for causing damage.


Sources:

  1. The Nesivos Mishpat (306:14) states that an adviser who is being paid for his advice is liable to pay for any loss that may result from his advice, even if the recipient of the advice did not expressly tell him that he is relying entirely on him. This is because the understanding is that he is accepting payment for providing correct advice.

  2. The Halachos stated above in B originate in the Gemara in Bava Kamma (99b) and are stated as the Halacha in Choshen Mishpat (306:6-7). The Shulchan Oruch, the Rema and the Shach (12) all conclude that the Halacha is like the Rif that an unpaid adviser who is not an expert is obligated to pay for loss caused by his advice only if he knew that his advice was being relied on, whether told explicitly by his friend or whether it is clear from the context of the question.

    If the unpaid adviser is not aware that his advice is going to be relied on, he has no liability. This is because he has the right to claim that he did not feel a need to be so careful with his advice since he assumed that the asker would seek advice from others also.


GARMI- Although it is forbidden to indirectly cause a loss to someone, generally speaking a Bais Din cannot award compensation for such damages. However, the damager is liable "B'Dinei Shomayim" (in the Heavenly Court, i.e., there is actual liability, just that the damages technically cannot be collected. This is similar to a case of someone who murders someone else but there are no witnesses, although we technically cannot punish him, he is clearly liable "B'Dinei Shomayim"). This type of damages is called GRAMMA.

However, there is one classification of indirect damages that a Bais din is permitted to award compensation for, called GARMI. What are the criteria for a case to be classified as Garmi? This is a very complex issue that the Rishonim have spent much time and energy grappling with. However the Rema (Choshen Mishpat 386:3) quotes the opinion of the Ritzbah (originally quoted in Tosafos in Bava Basra 22b [D"H Zos Omeres]) that the cases of Garmi are common cases of indirect damages in which the Chachomim felt that they must penalize the damager so that he should not take advantage of the fact that he would not be liable in court, and constantly inflict these damages on others.

The Shach there (24) states that since the liability for Garmi is a penalty by our Chazal, today, we have no right to classify cases as Garmi, unless we find a precedent for such liability in the Gemara. Our case of liability for bad advice is one such case that is mentioned in the Gemara and quoted as the Halacha in Shulchan Oruch as we stated above.

For further discussion on the laws of Gramma and Garmi, see the Shulchan Oruch Choshen Mishpat 386 - the entire Siman deals with this issue.


This class is translated and moderated by Rabbi Aaron Tendler of Yeshivas Ner Yisroel in Baltimore. Rabbi Tendler accepts full responsibility for the accuracy of the translation and will be happy to fax originals of the articles in Hebrew to anyone interested.

Feedback is appreciated! It can be sent to atendler@torah.org.

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Please Note: The purpose of this column is to make people aware of Choshen Mishpat situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the presence of all parties involved!


 






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