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:
- 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.
- 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:
- 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.
- 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!
