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 an accurate evaluation of the car before purchase, these defects would have been detected. He tried to find the seller to demand a refund, but the seller is nowhere to be found.
What is the Halacha, is the friend who advised the purchaser to acquire the car liable for the loss caused by his advice?
- 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 comes under the classification of Garmi (see below), for which one who caused damage is held liable.
- The Nesivos Mishpat (306:11) 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 from 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 follows the opinion of 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 query.
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 inquirer would seek advice from others too.
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, but the claim is not actionable in Bais Din. 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 indirect damage is called GRAMMA.
Nonetheless, there is one classification of indirect damages that a Bais Din is required to award compensation for, which is called GARMI. However, the criteria for classifying an indirect damage as Garmi rather than Gramma are the subject of much debate amongst the Rishonim. In the Shulchan Aruch the Rema (Choshen Mishpat 386:3) quotes the opinion of the Ritzbah (originally quoted in Tosafos in Bava Basra 22b [D”H Zos Omeres]) to the effect that the cases that the Gemora classifies as Garmi have no particular shared characteristics – they are simply commonplace cases of indirect damages for which the Chachomim felt that they must penalize the damager, in order that he should not take advantage of the fact that he would not be liable in court and frequently inflict such damages on others.
The Shach (loc cit, 24) states that since the liability for Garmi is a penalty established by our Chazal, nowadays we have no authority to classify additional cases as Garmi, unless we find a precedent for such liability in the Gemara. However, our case of liability for bad advice is indeed a case that is mentioned in the Gemara and quoted as the Halacha in Shulchan Oruch as we stated above, and thus the dispenser of bad counsel would be liable for any losses suffered to the inquirer as a result of his inappropriate advice in the circumstances listed 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 article was written originally in Hebrew by Rabbi Tzvi Spitz, and later presented to the public in English by Torah.org. It is now brought to you by Bais Havaad with permission from the copyright holders. To see more of such articles you can visit www.torah.org.