Q: What is considered "defective merchandise" according to halacha?

A: Defining "defective merchandise" depends on social norms and the nature of the sale.

According to the Shulchan Aruch, "Anything that the area's people agree is a defect that invalidates this sale can be returned; anything that they agree is not a defect cannot be returned… because whoever buys and sells relies on the local practice (C.M. 232:6)." Nowadays, there is strong emphasis on quality control. Many defects would invalidate a sale. This depends on whether the item is marketed as high-quality or cheap.

A regular book with one misprinted, albeit readable line would probably not be considered "defective" (although the printer would have to provide a proper patch for those lines); if a line is missing from the book, that is a defect. A cheap pen that sometimes writes poorly would not be considered defective, while an expensive pen would. A piece of furniture that is noticeably scratched would be considered defective.

Q: I purchased a dining table for $2,500 and it had a large, noticeable dent on one of the legs. What recourse do I have? What is the seller's responsibility?

A: If you purchase merchandise and find it defective, the sale is in error and void. You are entitled to return it for a full refund. This is true even if the seller was also unaware of the defect (C.M. 232:3).

If the seller wants to refund $1,000 and uphold the sale, you can insist that you prefer an intact item to a defective item at reduced cost. Similarly, if you want to uphold the sale and demand a discount, the seller can refuse and insist on cancelling the deal and returning the monies (232:4).

If the table can be completely repaired "as good as new," such as if the leg is simply screwed in and an identical leg is available, the seller can opt to uphold the sale and pay for the repair. However, if the leg is solidly attached to the table and replacing it would weaken the table, you can refuse repair and insist on a refund (232:5).

Q: I bought a new sefer four months ago. I now started learning it, and found it missing a whole chapter. Can I still return it?

A: You are entitled to return defective merchandise whenever you discover the defect, even years later, provided that you did not continue using the item after discovering the defect (C.M. 232:3). However, if the store has a return policy which clearly limits the time to return, you would be bound by the terms of that policy.

There is an opinion that if you had the opportunity to check the sefer when you first bought it and did not, you forego your right to claim a defect, even without a stipulated time limit. Many authorities disagree and maintain that even though you did not bother to check the sefer when you bought it, you can still return it later (Pischei Teshuva 231:1). Aruch Hashulchan rules this way, since you had no reason to assume that the sefer might be defective and had to be checked (232:5). However, since some authorities maintain that you are not entitled to return the sefer, if the seller adamantly refuses to honor the return, he cannot be forced to accept the sefer back.

Q: I bought food from a store. After I ate it, a new kashrus alert declared it non-kosher. Am I entitled to reimbursement?

A: This depends on the reason for the kashrus alert. If the food was declared non-kosher because of a Biblical prohibition (e.g. improper slaughtering, meat cooked with milk), then the seller must refund the full amount of the money, even if the food was already eaten. If the prohibition was Rabbinic (e.g. chicken and milk, terumos and ma'asros nowadays) the buyer can return the food; if the food was eaten, the seller does not have to reimburse you (Choshen Mishpat 234:3-4).

Later authorities rule that even if the prohibition was rabbinic, if the buyer did not pay yet, he needs to pay only the cheaper price of non-kosher food (Pischei Teshuva 234:1). Furthermore, if the item is declared assur b'hanaah, forbidden to benefit from (e.g. chametz that was possessed by a Jew over Pesach), the sale is null and void even though the prohibition is rabbinic, and the seller must return the money even if the food was already eaten (C.M. 234:4).

Q: I ordered a new bed set, and noticed at night that one of the mattresses was damaged. Can I sleep on it meanwhile until the mattress is replaced?

A: The Shulchan Aruch writes that defective merchandise can be returned, provided that you did not use the item after noticing the defect. However, if you use it afterwards, this indicates that you accept the defect and wish to uphold the sale, and you thereby forego your right to return the mattress (C.M. 232:3).

Many authorities maintain that even if you were unaware of this halacha and thought that you are allowed to use the item meanwhile, you still forfeit your right for redress (Pischei Teshuva 232:1.) Of course, the seller may elect to replace the mattress anyway.

If you notified the seller of the defect before using the mattress, some authorities maintain that you do not forfeit your right for redress, since you clearly did not accept the defect (Ibid.). Even so, since the sale is void, you have no right to use the mattress without permission from the seller, unless it is absolutely clear that he does not mind or that he will simply discard it.

Q: Three months after buying a used car, I discovered that the dealer had turned the odometer back 100,000 miles. When I came to return it, the dealer insisted that since I used it meanwhile, I owe him the equivalent of three months’ leasing.

A: A sale of defective merchandise is void. The item remains the seller’s; he must repay the buyer. Shulchan Aruch rules that if one bought a house and later found it defective, he must pay rent for the time that he lived there (C.M. 232:15). Later authorities debate whether the need to pay rent applies also to movable objects or to items that are not intended for rental (Ohr Sameach Hil. Mechira 16:8). Due to this dispute, we apply the principle of muchzak: whoever is in possession of the money wins. If the dealer has the money, he can withhold the equivalent amount of leasing; if the buyer has not paid yet (e.g. the car was bought through seller financing) he would not have to pay.

Beis Din would have to ascertain, though, whether there is a minhag hamedina on this issue. If there is a clear practice not to pay rental, the dealer would not be able to withhold money for leasing even if he were in possession.

Q: I bought a dozen eggs and many of the eggs in the carton had blood spots. Can I demand a new carton of eggs to replace them?

A: You should be entitled to return the eggs for replacements, since eating eggs with blood spots is prohibited. However, the Shulchan Aruch writes that nowadays the practice is not to return them, and that in this context the common practice (minhag) supersedes halacha (Choshen Mishpat 232:19). This is because the laws of buying and selling depend on the understanding between the involved parties, and everybody buys and sells based on the common commercial practice.

Similarly, if an animal is slaughtered and found to be treif, the Shulchan Aruch rules that the seller has to refund the money (Choshen Mishpat 232:11). However, Pischei Teshuva writes that apparently the custom nowadays is not so and the custom prevails, so that Beis Din has to verify the local practice in each place (Choshen Mishpat 232:6).

This principle is significant in other situations where the common commercial practice is at variance with the standard halacha, as we will see in the next issue.

Q: A local clothing store advertised a clearance sale and stated: “All sales are final: no refunds or exchanges.” I bought a packaged shirt that proved defective. Can I return it?

A: Shulchan Aruch writes that even if a seller stipulates that the customer is not entitled to a claim of defective merchandise, he is still entitled to claim, unless the defect was specified (C.M. 232:7). This is because of either of the following two reasons: a person has to be aware of what he is foregoing, or because the customer can claim that he did not really expect a defect and was not sincere in foregoing his rights (SM”A 232:16). Therefore, you should be able to return the shirt.

Despite this, you may not be able to return the shirt for a different reason. As mentioned last week, the common commercial practice supersedes the standard halacha. In case that the common practice considers such sales final even if merchandise proves defective, you cannot return it.

Q: I bought a printer that carries a manufacturer’s one-year warranty. When I plugged it in to use it, it did not work at all. Must I ship the printer to the manufacturer for replacement, or can I demand that the store exchange it?

A: Although the seller of your printer also bought the printer in a closed box and had no way of knowing about the defect, he is still responsible to sell working items to his customers.

Therefore, since the printer did not work at all and was defective from the start, the sale is void and the seller has to exchange it or refund your money.

This would apply even if the seller would be unable to reclaim the money from his supplier, such as if the supplier went out of business (Rama C.M. 232:18).

In this situation, as we have seen many times before, if the common commercial practice is that the manufacturer’s warranty relieves the seller of any responsibility, we would follow this practice.

Q: I bought three containers of cottage cheese before the “sell by” date. They sat in my fridge for almost a week, and when I opened them, they were spoiled. Am I entitled to exchange them?

A: If you kept the cottage cheese containers in proper refrigerated conditions and they spoiled before the “sell by” date, you can exchange them, since they were clearly defective. If you discovered that they were spoiled shortly after the date, it depends on how badly spoiled they were. If they were badly spoiled, they must have already begun to spoil when you bought them, so you can still exchange them (C.M. 232:16).

However, if they are only slightly spoiled, the seller is not obligated to exchange them, since the cottage cheese may have still been fresh when sold and only spoiled in your fridge. Since the defect was first discovered when the products were in your possession, the burden of the proof is on you, as the seller is in possession of the money and we assume that they spoiled here (230:7; 232: 11, see also Sm’a 232:35).

Despite this, some stores allow you to exchange spoiled merchandise with no questions asked and just require the sales receipt.

Q: I purchased Tefillin for my son at his bar-mitzvah. He had them checked five years later when he was in Yeshiva, and the parshas were found to be pasul. Am I entitled to new parshas from the sofer that wrote them?

A: This depends of on nature of the p’sul. If the defect was clearly there from the time that they were purchased – e.g. a missing or improperly written letter – the sofer owes you new parshas even if this was discovered many years later (C. M. 232:3).

However, if a letter was cracked or faded, the sofer does not owe you new parshas. The reason for this is that it is possible that the parshas were kosher when he sold them to you, and the ink faded or cracked over time.

Even if a letter was cracked in a manner that may have been there from the time the Tefillin were first bought, the sofer would still be exempt out of doubt. Since the defect was discovered in your possession, we assume that it developed here later on (C. M. 224:1 and Kessef Hakodoshim 232:11).

Q: I bought a 220V fridge and smaller, universal voltage appliances for aliyah at the local electronics store. If they are found defective after unpacking in Israel, who bears the shipping costs of the items?

A: Although the seller or manufacturer must refund or replace the item(s), they are not halachically responsible for the incurred shipping costs or for the fact that customs authority may not allow items in without taxation. If it’s not worthwhile for the customer to import a replacement, he can ask for a refund instead. [U.S. law, however, does seem to allow for some consequential damage.] Only if the seller was aware of the defect and that the person was planning to take it overseas is he responsible for incidental damage caused, based on the concept of garmi (directly caused damage).

On the other hand, the cost of shipping to return the defective fridge from Israel is the seller’s responsibility. However, if the buyer didn’t notify the seller that he intended to take it overseas (as with the smaller appliances), then he must return them to the seller (C.M. 232:21).