Hilchos Choshen Mishpat
Volume II : Number 20
A company hired a sales representative on a salary basis. His job is to
travel throughout the country purchasing raw goods, and selling the
product that the company produces. All travel expenses are initially paid
by the salesman, but he is later reimbursed by the company at the end of
the month. This reimbursment is included in his paycheck.
The salesman purchases his gas at a particular filling station, since
they offer gifts to regular customers that frequently fill up there.
The salesman would like to clarify whether or not he may keep the gift.
Do we say that since he is paying for the gas he deserves the gift, or
do we say that since the company is reimbursing him, the gift rightfully
belongs to the company?
Would the Halacha be different if he would use company money to pay for
the gas initially, rather than being reimbursed later?
- A. In the above case, where the salesman is using his own money to pay
for the gas, any gifts or other incentives (free fill ups, air travel
mileage, etc.) offered by the filling station belong to him.
- B. If an employer asks a worker to purchase something for him, and gives
him the money to do so, and the employee received a special discount on
the merchandise purchased, or received a free gift for purchasing these
items, the Halacha is as follows:
1. If the discount or gift is available to anyone who purchases these
things in this store, the money saved and the gift belong to the
2. If the employee made a special effort to travel to this store where
the discount was being offered, but he could have just as well purchased
the item in a closer store that did not have the discount available, he
has a right to expect some payment for his efforts to save the employer
money, but the discount and gift still belong to the employer.
3. If the seller gave the employee the discount only because of his
personal relationship with him, but it is not available to the public,
the employer and employee should equally divide the money saved or the
(1) The Shulchan Oruch (Choshen Mishpat 183:6) states that if someone
sends a messenger to purchase something for him, and gives him the money
to do so, and the messenger generates a profit in some manner, either by
receiving a discount or a gift, if this is an item that has a set price
on the market, the sender and messenger should equally divide the profit.
Most Rishonim explain that this Halacha is based on a Takanas Chaza"l - a
rabbinic injunction. On the one hand, if not for the efforts and ties of
the messenger the sender would receive no profit, but on the other hand
if not for the fact that the sender gave the messenger the funds with
which to purchase the item, there would also be no profit. Therefore, our
Rabbis have established that both sender and messenger should be
considered partners in generating this profit, and it should be divided
equally. The Shach, Taz, and Nesivos Mishpat (ibid.) all state that this
is the correct explanation of this Halacha.
It seems clear from the above that this Takanas Chaza"l only applies if
the money used in the purchase had been provided by the sender. Only then
can he be considered an "equal partner" in the profit generated.
Similarly, this only applies if the profit would not have been generated
by anyone other than this messenger, because of his business ties, power
of persuasion, etc. The seller is awarding the profit to the purchaser of
the merchandise, and in this case both the provider of the money and the
person making the effort to receive the discount must be considered
However, if the messenger would lay out the money for the purchase, even
if he just put it on his credit card and the sender was going to make out
a check directly to the credit card company, only the messenger is to be
considered the purchaser, and the seller awards the profit to him. The
seller really does not care that the messenger will be reimbursed for the
purchase, he has received his money and there is no longer any risk
involved in this transaction for him. As far as he is concerned, the
purchase is complete, and any reimbursement given to the messenger by the
sender is a separate transaction that he has nothing to do with. This is
the explanation for what we wrote in Answer A.
Additionally, if anyone purchasing these items could receive this gift or
discount, the messenger really did not contribute at all to generating
this profit, and it would belong to the sender. This is only if the
messenger is paid to run such errands for the sender, as in the case
discussed in our question. If the messenger could really have fulfilled
his obligation to his employer just as well by purchasing the same item
in a store in his community, but put in the effort and exertion to travel
to a distant place to receive the discount or gift, although he deserves
to be compensated for his efforts and expense on behalf of the employer,
he is still not considered a partner in this profit. The profit is only
being awarded by the seller because of the money which was provided for
by the employer, and not because of the extra effort or ties with the
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This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av
Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His
Column originally appears in Hebrew in Toda'ah, a weekly publication in
Jerusalem. It has been translated and reprinted here with his permission
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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!