Question:
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?
Answer:
- 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 repairs.
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 has occurred.
- 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.
Sources:
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).
Feedback is appreciated! It can be sent to[email protected].
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 and approval.
We hope you find this class informative and stimulating! If you do not see a subscription form to the left of the screen, access the Advanced Learning Network to subscribe to Business-Halacha.
For information on subscriptions, archives, and other Project Genesis classes, send mail to [email protected] for an automated reply. For subscription assistance, send mail to [email protected].
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!