Often, a person will order or purchase an item from a merchant and be
dissatisfied with what he receives, either because of a defect or because
it was not up to the standard that the customer expected. Under what
circumstances do we say that the entire sale is null and void and the
customer may request a full refund of his money, and when do we say that
the merchant has the right to offer to fix the item, and does not have to
return the entire sum paid for it?
If a building contractor sold a new home to someone, and the purchaser
found that it was not built to the agreed-to specifications, or that some
of the doors or furnishings installed in the home were defective, the
building contractor must replace or fix the defects within a short
period of time. Even if the cost of replacing or fixing these items is
very expensive, the purchaser can not claim that the sale is void and
back out of the agreement, if the contractor is willing to make the
However, this is only if the customer will ultimately receive what he had
originally agreed to purchase. If, as a result of fixing these defects,
the value of the home will decrease, or it will be necessary to break down
walls and build new ones in their place, which will give the impression
that the home is now a pre-used home, the customer is permitted to void
the sale. A Bais Din making this determination would have to acquaint
themselves with common construction practices in the area in which this
If someone ordered an item from a merchant and specified that he must
have it by a certain time, and is relying on the merchant to deliver it
by that time, and for some reason the delivery was held up and the
customer did not receive the item on time and no longer has use for it,
the sale may be voided by the customer even if the merchant was not
negligent or at fault in any way. If the customer had pre-paid for the
item, the merchant must refund the money.
However, if the customer did not specify at the time of the purchase that
he needs it by a certain time, even if he did call the merchant later and
requested delivery by a specific time, and the shipment was held up, the
sale may only be voided if the customer can prove that the delay was due
to the merchant's negligence.
Someone who purchases an item that is subsequently found to be
defective, may request that the sale be voided and his money returned, or
that the item be exchanged for a non-defective one. However, he has no
right to demand that the merchant allow him to keep the item and discount
the price due to the defect. If he insists on keeping this specific item,
the merchant can request the full price. Obviously, if the merchant is
willing to compromise and refund part of the paid price, he may do so.
Unless it was clearly stipulated at the time of the sale that there would
be no cash refunds even for defective goods, the merchant has no Halachic
right to prevent the customer from voiding the sale and receiving the
full money paid. He may not demand that he accept a non-defective item,
or only offer in-store credit.
Answer A is discussed in the Teshuvos HaRosh, and is quoted in the Tur
and Shulchan Oruch (Choshen Mishpat 232:5) and in the Nesivos (in
Chiddushim 7). The underlying principle of this Halacha is as follows:
If an item was sold, and was subsequently found to have a defect that
does not render it unusable, and does not cause the item to have a
different name, the sale may not be voided by the customer. He may only
demand that the seller bring it up to the standard that it should have
been at the time of the sale. However, if the defect renders it unusable,
or even if it doesn't reder it unusable, but because of the defect it
does not have the original name of the purchased item, for example, it
is now called a "used home" rather than a "new home", the customer may
argue that this is not the item that he purchased and may void the entire
sale. Additionally, even if it is usable and the name has not changed, if
it can be proven that customary business practice in that area is to void
a sale for such a defect, the customer may do so. This is stated by the
Prisha on the Tur there (5).
Answer B is discussed in the Shach in Choshen Mishpat (21:3) and the
Nesivos Mishpat there (3), and is based on the Halacha in the Shulchan
Oruch (232:4) and the Shaalos U'Teshuvos Shvus Yaakov (Vol. 3, Siman 169).
This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av
Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His
Column originally appears in Hebrew in Toda'ah, a weekly publication in
Jerusalem. It has been translated and reprinted here with his permission
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Please Note: The purpose of this column is to make people aware of Choshen Mishpat
situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each
individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the
presence of all parties involved!