Bad Goods: Products Liability in Halacha

Adapted from the writings of Dayan Yitzhak Grossman

May 15, 2025

The Associated Press reports:

A South Florida jury has awarded $3 million to a man who was severely injured by a defective airbag in a 2020 crash…

Jose Hernandez was driving his 2005 Honda Civic in Miami in December 2020 when another vehicle hit him as he tried to make a left turn, his attorneys said. The collision should have caused only minor injuries, but the car’s Takata airbag inflator improperly exploded, shooting a piece of metal shrapnel several inches long into Hernandez’s right arm, the lawsuit said…

At least 28 deaths have been linked to Takata air bag inflators in the U.S. and at least 36 worldwide, according to regulators. More than 400 people in the U.S. have been hurt. Large-scale recalls began in 2013.

Takata used ammonium nitrate to create a small explosion to inflate air bags in a crash. But the chemical can deteriorate over time due to high heat and humidity and explode with too much force. That can blow apart a metal canister and send shrapnel into the passenger compartment.[1]

While halacha has a robust framework of rules regarding mekach ta’us (a sale to which one of the parties—typically the purchaser—agreed based on a misconception), it does not have such a framework regarding products liability. So while there are detailed rules about the right of a party to a mekach ta’us to reverse the sale and get his money or property back, a seller’s liability to compensate a purchaser injured by a defective product is much less clear. In this article, we survey the sources in this area.

The Mishnah in Bava Basra establishes the rule that a seller who sells seeds for the purpose of planting and the seeds do not sprout is financially responsible.[2] In the course of its discussion of this Mishnah, the Gemara records a dispute about the scope of his responsibility:

The Rabanan taught in a breisa: What is the seller required to pay the buyer? Only the money for the seed, not the expenses the buyer incurred during the unsuccessful planting. And there are those who say that as a penalty, the seller is also required to pay the buyer’s expenses.[3]

The Yad Ramah (R’ Meir Abulafia) explains that this dispute pertains only to a case where the seller did not know the seeds were defective, but if he did know and sold them anyway, all agree that he is liable for the buyer’s expenses, because this is in the category of dina degarmi (a subcategory of indirect damage (grama) for which the perpetrator is civilly liable).[4],[5] But other Rishonim and Acharonim take precisely the opposite position, maintaining that the dispute is only where the seller did know that the seeds were defective, but if he didn’t, all agree that he is not liable for the buyer’s expenses.[6]

The Shulchan Aruch seems to accept the position of the Ramah. He rules that the seller is generally not liable for the buyer’s expenses, but he implies that he would be liable if he knew the seeds were defective.[7] But the Imrei Binah (R’ Meir Auerbach) writes that “it is certainly difficult” to compel even a seller who knew that the seeds were defective to pay the buyer’s expenses in light of the Rishonim who hold otherwise.[8]

The Nesivos Hamishpat discusses the case of someone who deliberately sells nonkosher meat as kosher, and his buyer commingles the meat with his kosher meat, so that upon discovering that the meat he bought wasn’t kosher, the buyer must treat all his meat as nonkosher. The Nesivos rules that the seller is liable for the buyer’s loss.[9] Although he cites various other bases for his position and does not mention the precedent of the defective seeds, his ruling is seemingly consistent with the position of the Ramah and Shulchan Aruch in that case.

Several years ago in this forum, in an article on vaccine manufacturer liability,[10] we cited a teshuvah of the Maharsham about a woman who purchased a chemical leavening agent from a peddler to bake honey cakes for a wedding. The cakes failed, apparently because the peddler inadvertently supplied the wrong ingredient.[11] The Maharsham, addressing the question of the seller’s liability for the loss of the buyer’s honey and flour, begins his analysis with a discussion of the case of the seeds, considering whether dina degarmi applies even to inadvertent damage (shogeig). He argues that in his case the question is moot, because the seller’s duty of care characterizes his conduct as virtually deliberate (karov lemeizid). Still, he concludes that the seller is not liable, because there are some views that one who acted out of self-interest rather than malice is not liable under dina degarmi, and the seller can plead “kim li (I hold)” like those views.[12]

Thus far we have considered whether the seller of a defective product can be held liable for expenses that he caused the buyer under the doctrine of dina degarmi. In the case of the seeds, this may be the only basis to hold him liable, because it seems difficult to argue that the seller or his product directly harmed the buyer.[13] In the case of the Maharsham, however, as well as in our case of the exploding airbag—where the seller’s product directly damaged the buyer’s person or property—there is another potential basis for holding the seller liable: mamon hamazik (damage caused by one’s property). But the Maharsham rejects this in his case on the grounds that since the buyer himself could have inspected the product before using it and discovered the problem, mamon hamazik does not apply, so the only basis for liability is dina degarmi.

In summary, the rules of products liability are as follows:

• The seller of a defective product who didn’t know that the product was defective is certainly not liable, as a matter of normative halacha, for any injury to the seller.
• There is a major dispute among Rishonim and Acharonim whether a seller who did know (and perhaps even one who should have known) that the product was defective is liable for injury. The Shulchan Aruch rules that he is, although some important Acharonim say that this point is questionable.
• If the buyer was unable to inspect the product and discover the defect before using it, there is additional basis to hold the seller liable.[14]

[1]Florida jury awards man $3M for defective airbag that caused serious injury during crash. AP News. https://apnews.com/article/crash-airbag-takata-florida-award-cc06c52796f07906541bf154b5fb98a7.

[2]Mishnah Bava Basra 6:1.

[3]Ibid. 93b.

[4]See Erring on the Side: Is Pfizer Liable for Harmful Side Effects of its Products? Dec. 22, 2022.

[5]Yad Ramah ibid. os 62, cited in brief in Tur C.M. siman 232. It is unclear whether the Tur means to acknowledge a dissenting opinion that exempts even a seller who knew that the seeds were defective from liability; see Drishah ibid. os 20. The Chidushei Hagahos (os 7) in the Mechon Yerushalayim (5771) edition of the Tur suggests that this point hinges on a textual variation between different manuscripts and printed editions of the Tur.

[6]Tosfos Bava Basra 92a s.v. Hamocheir peiros; Hagahos Maimoniyos Hilchos Mechirah perek 16 os 1; Shu”t Radvaz cheilek 1 siman 197. Imrei Binah Hilchos Dayanim siman 21 s.v. Gam af (in digital form here) argues that this is also the opinion of the Ra’avad, Ramban, and Rashba. Cf. Mishpat Shalom 232:20 and Mishmeress Shalom there os 18, and Shu”t Maharsham cheilek 5 siman 11 s.v. Ach dilfi zeh.

[7]Shulchan Aruch ibid. se’if 21, as explained in Biur HaGra ibid. os 35. Cf. Drishah ibid.

[8]Imrei Binah ibid.

[9]Nesivos Hamishpat siman 234 Biurim os 1.

[10]Cited above in n. 4.

[11]Shu”t Maharsham ibid.

[12]The Maharsham notes that in his case there is an additional argument against holding the seller liable: the uncertainty about whether it was indeed the the seller’s mislabeled product that caused the damage.

[13]But see Nesivos Hamishpat siman 232 Biurim os 10, who does indeed declare that causing someone an unnecessary expenditure is indeed considered “hezeik mamon gamur, velav goreim hu.” Minchas Pitim (C.M. at the end of 209:4) cites this position of the Nesivos and comments “vetzarich iyun.”

[14]Cf. R. Yaakov Sabato, Hefseidim Shenigremu Ketotza’ah Mikabalas Sechorah Pegumah.