CCAR RESPONSA
Contemporary American Reform Responsa
11. Unknown Defect in Building
Material
QUESTION: Our sanctuary and social hall contain asbestos tiles
in their ceilings. The congregation is planning on removing them. At the last board meeting a directive was passed instructing our legal committee to file proceedings against an asbestos manufacturer. Is it moral to bring a liability suit against a manufacturer who was unaware of the potential health hazard of his product when it was installed? (Rabbi M. Levin, Kansas City, MO)
ANSWER: This entire matter is governed by a simple Biblical statement,
“When you sell property to your neighbor, or buy anything from your neighbor, you shall not wrong one another” (Lev. 25:14). This law has been further developed in the Talmud and later codes. Maimonides made the seller responsible for disclosure of any defect to the buyer (Hul. 94a; Yad Hil. Mekhirah 18.1; Tur Shulhan Arukh Hoshen Mishpat 227; Shulhan Arukh Hoshen Mishpat 227.6; Sefer Hamitzvot Lo Ta-aseh #250). There is disagreement over the possibility of waiving such liability. Maimonides felt it could not be waived (Yad Hil. Mekhirah 15.6). Asher ben Yehiel disagreed (Tur Hoshen Mishpat 232.7); the discussion on waiver of responsibility was continued in the later responsa.
Traditional texts discuss specific items in which defects have been
discovered. One of the primary grounds for recovering the purchase price involves an item which may have a dual use and the buyer finds it not suitable for his purpose. This would be true of eggs, which may be eaten or hatched, seed which may be consumed or planted, an ox which may be used for plowing or slaughtered for food, etc. If the buyer did not inform the seller of his intended use, then he has no recourse (B. B. 90a; YadHil. Mekhirah 16.2).
In
these instances, and others like them, the seller had to provide a sum which made good on the defect, but the items purchased were not returned to him. However, if the defect was major and in a permanent item like a building, then the buyer generally had the right to return the building to the seller, though he might settle for payment of repair costs. For example, Asher ben Jehiel spoke of a building which had been severely damaged by vandals during the period of the sale. In that instance, the damage was repairable, and so the seller was responsible for payment of the repairs. However, if the damage had been more serious, and if the item could not have been restored to its original state, then the seller would have been forced to take it back (Asher b. Jehiel, Responsa, Section 96, #7; Joshua Falk to Tur Hoshen Mishpat 232.5; Joel Sirkes to TurHoshen Mishpat 232.4).
Each of these instances dealt with
defects which were readily discernible and not latent as in the case of the asbestos. Furthermore, they dealt with defects which were discovered in a reasonable period of time, certainly before the item was heavily used. I have found no responsa which deal with a latent defect or cases in which damages and liability were claimed decades later.
The matter of damages is
much more complex because it depends whether this situation is classified as garmei or gerama. Garmei implies liability and gerama does not. There is a considerable amount of discussion on these two terms without clear conclusions (B. K. 24b, 48b, 55b ff, 60a, 98b, 110a, 117b; B. B. 22b; Tur Hoshen Mishpat 232.21 and commentaries; Shulhan Arukh Hoshen Mishpat 232.20, 386.4 and commentaries). The general rule seems to be that the governing authorities impose damages when the public order makes it necessary or desirable. When the damages are indirect, can not be foreseen, and no public benefit is involved, then there is no liability (Tur Hoshen Mishpat 232.20; Shulhan Arukh Hoshen Mishpat 232.21). For a recent discussion of this, see Epstein, Arukh Hashulhan Hoshen Mishpat, Vol. 8, 386.1 ff; M. Elon, Hamishpat Ha-ivri, Vol. I, pp. 173 ff.
In each of the discussions cited above, the defect was found either
immediately or after a reasonable length of time; it was apparent and not latent. That is not the case in the question which you have asked.
We must, therefore, conclude that
traditional Jewish law would not hold the seller responsible for defects of damages after a long period of time has elapsed, especially as the defect was latent and unknown to both buyer and seller at the time of the transaction.
The entire matter may also be considered under
the general classification dina demalkhuta dina, and as the courts of the United States have decided that the seller is responsible in this matter and that it is for the public good, it would be permissible for the congregation on those grounds alone to bring a liability suit.
April 1985
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