Volume 48 Number 45
Produced: Thu Jun 9 5:57:50 EDT 2005
Subjects Discussed In This Issue:
Buy / selling / Renting / Supermarket Promotions
[Carl Singer]
Our "hot" Single-Use Camera (4)
[Bernard Raab, Harry Weiss, Tzvi Stein, Shayna Kravetz]
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From: Carl Singer <casinger@...>
Date: Mon, 06 Jun 2005 07:24:51 -0400
Subject: Buy / selling / Renting / Supermarket Promotions
> Both airlines make it clear in on-board announcements that the headsets
> are being sold and may be taken away by the passenger and reused at home
> or on another flight.
Headsets have changed -- they are no longer electronic devices, but
simple plastic tubes that transmit sound. The economics have changed --
all-in-all to some airlines it's probably more expensive to collect,
sanitize and re-use them than to simply consider them "single use." BTW
-- Continental Airline's website had a coupon for free headset if you
booked on line.
> My supermarket offers certain items on sale at an unusually low price --
> sometimes below their own cost, I suspect -- in the hopes that when I
> come in to buy it, I'll also buy some other things and they'll end up
> with a net profit. Is it wrong for me to buy those items and nothing
> else, knowing that they've made little or nothing on the deal?
Of course supermarkets have loss leaders. They may, however, limit
quantities. Also product placement is such that they hope you will hike
through their store looking for these items and likely also purchase
higher mark-up items that are nearby.
>> In contrast, think of these transactions. (1) You go to a yard sale and
>> see a picture in a frame for $5.00. You expertise tells you that the
>> frame is solid gold. You pay the $5 and make a handsome profit. (2) It
>> was your yard sale and you later find out about the gold frame that you
>> sold for $5. On either side it's likely a valid transaction although
>> unfair.
>This hypothetical looks like one of the classical cases of Ona'at Mamon,
>prohibited by Torah law (Lev. 25:14). The buyer must not take advantage
>of the seller's ignorance of the value of the merchandize. Furthermore,
>Halakhah typically does not consider such a transaction a "valid sale."
>Usually at the protest of the seller, the sale becomes void (See the
>Sifra on this verse, and the Mishiot in the 4th Perek of Bava Metsiah).
>The money and the merchandize revert.
EXACTLY -- what may legally be a valid transaction is halachically
questionable. It's one of those areas where deenay d'malchusa deenay is
tough to interpret.
>Here's another analogy. The business model of commercial television
>relies on the consumer being attracted to a certain channel because of a
>program but also watching the commercials and causing an increase in
>profit for the advertisers. However, just because the business model is
>such does not obligate me to "conform" to that model. Suppose I know
>for a fact that during my favorite program, only products I have no
>interest in are advertised. Does that make it "theft" for me to watch
>the program? Suppose I go further and "mute" or walk away from the TV
>during the commercials or even "zap" them with my VCR? Does that make
>it theft?
You are not a party to the transaction between the commercial television
channel and advertiser. So you have no obligations. Your expected
behavior patterns do provide a basis for the value / cost of the
commercial time slot. I like to watch Jeopardy on my microwave and
knowing that everyone (?) is in suspense waiting for the final jeopardy
answer / question -- they have an extra long series of commercials prior
to same. Since the show is strictly timed and I have a very accurate
radio-controlled clock, I don't have to watch commercials lest I miss
the final. Answer: "It is the most beautiful city in the world."
Question: "What is Yerushalayim?"
Carl A. Singer
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From: Bernard Raab <beraab@...>
Date: Mon, 06 Jun 2005 17:36:33 -0400
Subject: RE: Our "hot" Single-Use Camera
>From: Shayna Kravetz <skravetz@...>
>Bernard Raab <beraab@...> writes in part:
> >Far from a "hapless middleman", the clerk is actually the "other party"
> >in the transaction.
>
>Hardly! She is an agent of the vendor with strictly limited authority.
>Would you be prepared to rely on the clerk to give you a refund out of
>her own pocket if you found the goods defective? Would you expect her
>to have product liability insurance?
Of course not. That would make the clerk a principal, not an agent.
>BR again:
>
> >If the "owner/vendor" does not wish to rely on the clerk's
> >representation (probably a wise decision) he will put whatever terms he
> >wishes to convey on the product itself, in clear language. Absent such
> >language, the sale is a simple sale!
>
>How much clearer can the words "Single-use camera" be? That is a clear
>statement that the vendor is providing you (I am trying to avoid
>choosing between "selling" and "renting" here) this camera for a single
>use. From a technical legal point of view, if there is no separate
>written contract of sale, the advertising, labelling, etc. become our
>only guidelines to establishing the intent of the parties and, hence,
>the contract. Your finagling its internal works to bypass that
>condition is, in my opinion, a civil breach of contract.
This one might be at least arguable, although I believe without merit
IMHO. I would argue in rebuttal that the product's name alone does not
and cannot restrict its use. I may buy a book, even a first-edition with
fancy leather binding, and use it as a doorstop if I wish, or computer
monitor and convert it to a TV set. This is why the issue of "selling"
vs. "renting" is quite crucial here. If it were a library book or a
rented computer monitor, I may quite properly be restrained from any
such "off-label" use. But scientists "make a living" by buying equipment
and modifying it for "off-label" use in research. It is totally common.
But by all accounts I have read (I have no personal experience with this
product yet) this is clearly a sale. If it is to be a conditional sale,
the condition needs to be stated clearly at the point of sale. At the
every least, I would expect the seller to put a notice on the product
which states something like: "This product may be used only once and
must be returned for processing to an authorized processor only". With
that statement on the box, the issue would be settled, and hacking would
be ruled out as a legal option. For whatever reason (user-friendliness,
enforcability?) the manufacturer seems to have not taken that
option. But I would bet that the decision was carefully considered
before the camera was put on the market. If that is correct, then there
is no issue of:
>... either g'neivat da'at or hona'at d'varim, both of which seem to me
>to have some possible application here. What is the /halachic/
>position? When we're given the camera, don't we become a shomeir for
>the owner under these circumstances, with a duty to preserve the camera
>in good condition and return it in accordance with the agreement?
For you to be a shomer, the assumption is that you were given, or are
borrowing, an item which is not yours. Again, you are assuming that we
are "given the camera" and ownership remains with--who?, the
manufacturer, the distributer, the store owner? That seems not to be the
case.
b'shalom--Bernie R.
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From: Harry Weiss <hjweiss@...>
Date: Mon, 06 Jun 2005 08:26:29 -0700
Subject: RE: Our "hot" Single-Use Camera
>From: Shayna Kravetz <skravetz@...>
>How much clearer can the words "Single-use camera" be? That is a clear
>statement that the vendor is providing you (I am trying to avoid
>choosing between "selling" and "renting" here) this camera for a single
>use. From a technical legal point of view, if there is no separate
>written contract of sale, the advertising, labelling, etc. become our
>only guidelines to establishing the intent of the parties and, hence,
>the contract. Your finagling its internal works to bypass that
>condition is, in my opinion, a civil breach of contract.
The question still boils down to is it a sale or lease. To me it seems
more like a sale. In a lease the owner always keeps track of who has
the property. Here if one pays cash, there is no record of who own the
property. it is sold in a store as a sale.
The purpose written is totally irrelevant. If I buy cooking oil and put
in on salad, I am not breaking any contract. If I buy cable for a weed
eater and use it for an eruv, I am not breaking any contract. Once I
buy something it is mine to do with as a I please.
Another model very simialr to this is cellular telephones. They are
sold for well below the cost of the phone. In most cases there is a
contract that requires one to buy service from the vendor for a minimum
period. They also sell the no contract phones, which comes with a
certain amount of time. One can buy additional time. In both cases if
one decides they no longter wish to use the phone, or they no longer
wish to take pictures, they are not obligated to return it, but they
dispose of it as they wish.
Cell phones are designed to work with only one provider, but if one
takes it a changes a few chips it may work with another system. There
is nothing illegal about that, since I own the phone I buy.
HP makes far more money on ink then printers. With the price and
rebates on many printers, they may also be below cost. Does any one say
I am prohibited from buying a 3rd party ink cartredge.
The fact that a manufactures gambles that people wil buy a certain
amount of suppilies or services when one buys their product, does not
require one to use it.
It is not geneivas daas, since all one is agreeing when they buy, is
that they will take ownership of the item.
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From: Tzvi Stein <Tzvi.Stein@...>
Date: Mon, 06 Jun 2005 11:37:24 -0400
Subject: Re: Our "hot" Single-Use Camera
> From: Shayna Kravetz <skravetz@...>
> How much clearer can the words "Single-use camera" be? That is a clear
> statement that the vendor is providing you (I am trying to avoid
> choosing between "selling" and "renting" here) this camera for a single
> use. From a technical legal point of view, if there is no separate
> written contract of sale, the advertising, labelling, etc. become our
> only guidelines to establishing the intent of the parties and, hence,
> the contract.
I disagree strongly. Advertising and labelling most assuredly do *not*
form a contract. No where have I, the buyer agreed to anything on the
advertising or labeling. I find it surprising to even see such a
concept suggested. Are you saying that if I buy a product that is
advertised as a "breakfast cereal" and I eat it for dinner instead, I am
breaching a contract? Or if I buy a cup that is labeled as "disposable"
and never dispose of it, but just wash it and keep re-using it, I'm also
breaching a contract? Come on!
>When we're given the camera, don't we become a shomeir for the owner
>under these circumstances, with a duty to preserve the camera in good
>condition and return it in accordance with the agreement?
Umm... shomer for the owner? I *am* the owner! It is treated in any
way by the company as a sale!
And what is this "agreement" that people keep bringing up. There is no
such agreement anywhere on the camera, and certainly nothing the buyer
agrees to expressly.
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From: Shayna Kravetz <skravetz@...>
Date: Mon, 6 Jun 2005 13:05:58 -0500
Subject: Re: Our "hot" Single-Use Camera
After I wrote:
[See quote above]
Tzvi Stein objected:
>I disagree strongly. Advertising and labelling most assuredly do *not* form
>a contract. No where have I, the buyer agreed to anything on the
>advertising or labeling. I find it surprising to even see such a concept
>suggested. Are you saying that if I buy a product that is advertised as a
>"breakfast cereal" and I eat it for dinner instead, I am breaching a
>contract? Or if I buy a cup that is labeled as "disposable" and never
>dispose of it, but just wash it and keep re-using it, I'm also breaching a
>contract? Come on!
Technically, in the absence of a written contract, the advertising is
evidence of the terms of the store's offer and when you pay your money
and take away the object, you accept that offer by your conduct. There
may be no written contract but (as the embarrassed holder of an LL.B.) I
promise you that legally there is a contract between you and the camera
shop. And your examples assume that you've /bought/ the objects in
question which is, of course, begging the whole question that we're
struggling with here. I think we can agree that, if you bought the
camera, it's yours to do with it as you will. The real issue is, have
you bought it or is this something other than a simple sale?
>Umm... shomer for the owner? I *am* the owner! It is treated in any
>way by the company as a sale!
As I said, begging the question. If this is not a simple sale, you are
not the owner.
>And what is this "agreement" that people keep bringing up. There is no
>such agreement anywhere on the camera, and certainly nothing the buyer
>agrees to expressly.
There is an implicit agreement to transfer certain rights to the camera
from the camerashop to you. It may not be written down and its exact
terms are what we are struggling to define but it does exist and you are
legally bound by it.
Kol tuv from
Shayna in Toronto
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End of Volume 48 Issue 45