Who Gets the Free Gift?

Question

Noson is the administrator of a yeshiva. His duties include purchasing supplies for the
yeshiva (food, cleaning materials, etc.) as well as dealing with the authorities. The
yeshiva has lent him a car to enable him to get around. Noson pays for the gas with his
own money, and the yeshiva reimburses him at the end of each month. He has found a gas
station that gives a free mug for every purchase of 150 shekels, and has managed to
collect the entire series of ten mugs.

Noson now wishes to know whether he can keep the mugs. On the one hand, he paid for the
gas with his own money. On the other hand, the yeshiva might be considered the real
purchaser, since it reimburses him for these expenses. What should he do?


Answer

The Shulchan Oruch (Choshen Mishpot 183:6) discusses what happens if an
agent is sent to purchase an item which has a fixed price and the vendor gives him an
extra amount. The law is that the agent and his employer share the bonus equally. The Sema
(Note 18) presents two explanations for this law. The Rif, the Rosh and the Ittur
hold that the bonus should really belong to the agent, since the vendor actually gave it
to him. However, since the agent was only able to obtain this gift because of the
employer’s money, they share it. Each contributor is entitled to his share of the
bonus. Rashi explains that the reason for their splitting the bonus is because we are not
sure what were the vendor’s intentions. Did he mean to give it to the agent, who
physically made the purchase, or to the employer, on whose behalf it was made? Since we
are in doubt, they share the bonus. According to this explanation, if the vendor specified
that he was giving the bonus to the agent, it is unquestionably entirely his. However,
according to the other opinion, even in this case he would have to share the gift with his
boss. The money for making the purchase – and thereby obtaining the gift – came
from the employer! The Shach, the Taz and Nesivos (unlike the Sema) agree that the law is
like the first opinion.

It would therefore follow that if the purchase were to be made with the agent’s
own money, he would be entitled to keep the entire bonus for himself. Even if he will
later be reimbursed for his expenses, at the time of sale he alone supplied all the
factors that were instrumental in "earning" the bonus – his connections
and his money. Once the agent has paid the supplier, the deal has been completed.
The purchase is considered valid even if the agent does not receive reimbursement. Thus,
the fact that the agent will have his money returned played no role in gaining the bonus.

We have discussed the law when it was the agent’s connections that prompted the
gift. What if this particular supplier gave such a gift to all his customers? The law
would then be that whoever supplied the money for the purchase receives the entire bonus.
Here, no connections were needed to earn the gift. One only needed to make a purchase. The
one who supplies the money is considered to be the purchaser. Thus, if the agent paid for
the purchase with the boss’ money, the entire bonus goes to the boss. If the agent
could have obtained these goods locally, but went out of his way to buy from this
particular supplier, he is entitled to extra wages – but no gift.

THEREFORE, IN OUR ORIGINAL QUESTION, since Noson made the purchase with his own money,
he is entitled to keep the mugs. The gas station was offering a bonus to all its
customers, i.e., those who actually made a purchase of a certain value. Had he paid with
the yeshiva’s check, he would have to give all the mugs to the yeshiva, since they
supplied the funds for making the purchase. In such a case, he would be entitled to extra
wages if there was a gas station near to him and he went out of his way to buy where they
gave the gift.