Volume 48 Number 38
Produced: Mon Jun 6 4:41:12 EDT 2005
Subjects Discussed In This Issue:
Buying or renting?
[David Prins]
Our "hot" Single-Use Camera (8)
[Shayna Kravetz, Binyomin Segal, Akiva Miller, Louis Finkelman,
Tzvi Stein, Ari Trachtenberg, Carl Singer, Eliyahu Gerstl]
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From: David Prins <prins@...>
Date: Fri, 3 Jun 2005 13:18:12 +1000
Subject: Buying or renting?
Bernard Raab wrote (v48i33):
> Many years ago, when in-flight entertainment aboard airplanes was first
> introduced, it was common for the flight attendants to announce that
> passengers may "purchase" a headset for $2.00. (Yes $2.00!) At the time,
> I had quite a collection of headsets, since I frequently did not return
> my headset at the end of the flight, when they were collected. For many
> years now, the announcement has been: "passengers may *rent* a
> headset...." Since that change, I have always returned my headset. The
> principle of "caveat emptor" (let the buyer beware) is accompanied by a
> parallel principle of "caveat venditor", let the seller beware.
Some airlines still do sell rather than rent headsets for about $2. In
Australia, Virgin Blue sells headsets in-flight for A$2.50, which is
equivalent to about US$1.90. Jetstar's price is A$3.00 (equivalent to
about US$2.30).
Seewww.virginblue.com.au/helpInfo/travelInfo/duringYourFlight/index.php?section=In
light+Service and www.jetstar.com/flyingWithUs/inAir
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. The airlines do not collect or wish to receive
back headsets that have been sold.
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From: Shayna Kravetz <skravetz@...>
Date: Thu, 2 Jun 2005 11:44:20 -0500
Subject: Re: Our "hot" Single-Use Camera
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? It's true that one might make a
case for her representations about the goods' quality and type as being
binding on the /real/seller, but even that may be problematic.
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.
BR again:
>I can assure you that the "owner/vendor" does not expect (or want) his
>customers to be contacting him with questions and propositions.
Au contraire! The owner/vendor certainly does, from a legal point of
view, and that's why you will find the owner/vendor's name somewhere on
the object. While this may be a pretence in some respects (nobody wants
a thousand calls a day asking "what happens if I press this button twice
instead of once..."), in others it is absolutely genuine.
And while we're all arguing about civil liability, I haven't seen anyone
mention 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?
Kol tuv from Shayna in Toronto
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From: Binyomin Segal <bsegal@...>
Date: Thu, 2 Jun 2005 07:37:12 -0500
Subject: Re: Our "hot" Single-Use Camera
> From: David Riceman <driceman@...>
> Do you pay sales tax on this camera? I don't think you would pay sales
> tax on a rental.
As I just rented a car this past weekend and have the receipt here in
front of me, I can attest that, at least in the state of Illinois, Dr
Riceman is incorrect. My car rental included a "sales tax". The
existence or lack of sales tax would not categorically demonstrate the
transaction's status.
binyomin
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From: Akiva Miller <kennethgmiller@...>
Date: Thu, 2 Jun 2005 12:47:00 GMT
Subject: Re: Our "hot" Single-Use Camera
Carl Singer wrote <<< Our moral / halachic compass must tell us that
misappropriating the digital camera is wrong. No amount of dreying will
change that. Converting the camera to multiple-use is clever, smart,
ingenious -- but taking it is still wrong. >>>
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?
No, it is not wrong. Not forbidden, and not even wrong. Those are the
rules of the game. In fact, they're the ones who wrote those rules, by
being the ones to put the items on sale at that price.
They could have chosen to make the sale price dependent on some
conditions, and in many cases they do exactly that, such as when the
sale price is available only if your total purchase comes to a certain
minimum amount. But there are other times when they choose not to insist
on such conditions.
So too here. They could easily *rent* us the camera rather than selling
it, just like the headsets on the airlines. And until they do so, we're
simply playing the game by their own rules.
Akiva Miller
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From: Louis Finkelman <louis.finkelman@...>
Date: Thu, 02 Jun 2005 06:33:43 -0400
Subject: Our "hot" Single-Use Camera
Carl Singer asserts, in a recent Mail-Jewish:
> 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.
Shalom, Eliezer
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From: Tzvi Stein <Tzvi.Stein@...>
Date: Thu, 02 Jun 2005 07:56:13 -0400
Subject: Re: Our "hot" Single-Use Camera
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?
Just as the station/network owner knew when producing the programming
that some proportion of viewers would not view or be influenced by the
advertising, he went ahead anyway, because he thought he would still
make a profit. The same thing with the camera... the manufacturer
surely knew that all the efforts into making it "unhackable" would not
be 100% effective. He surely had several design possibilities proposed
to him, and he could have made the camera even more difficult to "hack"
but he did not think that the incremental return justified the added
expense. He also could have included a "rental" contract that the
consumer would have to sign but decided against that because it would
interfere with sales. He made decisions based on what he judged would
give him maximum profit with full knowledge of all the risks.
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From: Ari Trachtenberg <trachten@...>
Date: Fri, 03 Jun 2005 09:42:15 -0400
Subject: Re: Our "hot" Single-Use Camera
From: Carl Singer <casinger@...>
>Our moral / halachic compass must tell us that misappropriating the
>digital camera is wrong. No amount of dreying will change that.
>Converting the camera to multiple-use is clever, smart, ingenious --
>but taking it is still wrong.
My ethical compass agrees with Carl's on this issue. However, I also
think that there are times when an agreement or contract itself is
unethical to the buyer. A classic example is in the "lease" of computer
software, whereby you are forced to agree to a draconian contract
because not doing so cuts you off from a fundamental technology
(e.g. Microsoft Office). Thus, it is not always sufficient to merely
consider what the seller had in mind, but one must also consider if the
seller's intentions are themselves ethical.
Best,
-Ari
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From: Carl Singer <casinger@...>
Date: Fri, 03 Jun 2005 09:47:11 -0400
Subject: Re: Our "hot" Single-Use Camera
Ari Trachtenberg wrote:
> My ethical compass agrees with Carl's on this issue. However, I also
> think that there are times when an agreement or contract itself is
> unethical to the buyer.
[See rest just above]
This brings to mind the Latin "caveat emptor" -- let the buyer beware --
and how it contrasts with the relevant halacha.
Carl A. Singer
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From: Eliyahu Gerstl <acgerstl@...>
Date: Fri, 03 Jun 2005 18:12:23 -0400
Subject: RE: Our "hot" Single-Use Camera
<zvi.Stein@...> Wrote:
> >[ACG:]During the seventies some books bought in Israel had a notice
> >stamped on their inside that they were only for sale in Israel....
>[ZS:]The book example is not comparable at all to the digital camera
>case. In the book example, there is a law regarding exports being
>violated as well as a clear written "condition" stamped on the book.
>...
Zvi's right.
Although I think that my comment was incorrect for yet another reason.
I accepted previous comments by other listmembers in which it was
apparently assumed that IF conditions were placed on the transaction
(and I agree that it is rather difficult to find any explicit
conditions) there would still have been a "sale". I then tried to look
at whether conditions could be placed upon a "sale" that would make it
void retroactively if those conditions were breached.
However I now think my entire approach to the problem is incorrect. At
some point, the conditions placed on the transaction would be contrary
be there being a sale and with it the transmission of ownership. If
there were such restrictions then transaction would become one of a
bailment for hire.
I think therefore that real underlying legal and Halachic issue is
whether the transaction is a sale or a loan.
KT
Eliyahu
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End of Volume 48 Issue 38