Chanukah was in the air. “Can we buy jelly doughnuts for Shabbos?” Chaim asked his mother.
“Yes,” she replied. “The bakery is having a special for Chanukah.”
“How many should I get?” asked Chaim.
“We’ll need about 20 for the family and guests,” said his mother. “Here’s money; you can bike over and buy them.”
Chaim put on his helmet and got ready to go. “One more thing,” said his mother. “The bakery also has milchig doughnuts. Please make sure to get pareve ones.”
Chaim went to the bakery. Piles of doughnuts were spread out on tables. He saw the doughnuts labeled milchig on the side.
Chaim chose doughnuts from the pareve section. Just to make sure, he asked the baker: “Are these doughnuts pareve?”
“Yes,” the baker replied. “Milchig is over there.”
After a delicious Shabbos meal, Chaim’s mother brought out the doughnuts for dessert. “Thanks to Chaim for getting the doughnuts,” she said to the family.
People began eating the doughnuts. “These are really tasty!” Chaim’s brother commented.
Most of the people managed to finish their doughnuts before Chaim’s mother had a chance to sit down and eat. Finally, she took a bite. “Delicious,” she said to Chaim.
Chaim’s mother took one more bite, and frowned. “Are you sure that the doughnuts you got were pareve?” she asked. “This tastes like cheese.”
“I’m sure,” replied Chaim. “The milchig ones were labeled on the side table. I even asked the baker.”
“I’m almost positive these are milchig,” Chaim’s mother said. “I’m going to have to check with the bakery after Shabbos. I suspect they mistakenly placed a batch on the wrong table!”
“What happens if it turns out to be a mistake and they’re milchig?” Chaim asked his father. “Are we entitled to a refund from the bakery?”
“Interesting question,” Chaim’s father replied. “I’ll ask Rabbi Dayan in shul.”
At Minchah, Chaim’s father asked Rabbi Dayan about the doughnuts.
“You are entitled to return the doughnuts that remain for a refund or exchange,” said Rabbi Dayan, “but are not entitled to a refund for the doughnuts that were eaten.”
“Can you please explain?” asked Chaim’s father.
“Foods of different varieties, with different tastes, are considered separate items,” replied Rabbi Dayan. “Milchig and pareve doughnuts are different items. Therefore, the purchase is void, even if the price is the same and the milchig doughnuts can be eaten at a different meal” (see C.M. 233:1; Aruch Hashulchan 233:4).
“What about the doughnuts that were already eaten?” asked Chaim’s father. “If the sale is void, why are we not entitled to a refund for them?”
“Although the purchase of the doughnuts is void, you still have to pay for the benefit that you received from them,” answered Rabbi Dayan. “Assuming that the price of the milchig and pareve doughnuts is the same, you received equivalent benefit, which balances the refund” (Pischei Choshen, Onaah 13:12).
“But what about the fact that we ate prohibited doughnuts? They were milchig, and it was after a fleishig meal?” asked Chaim’s father.
“Regarding non-kosher food that was sold as kosher and already eaten, Halachah distinguishes between a Torah prohibition and a Rabbinic one,” answered Rabbi Dayan. “If the prohibition is from the Torah, the customer is entitled to a full refund; if the prohibition is Rabbinic the customer cannot demand a refund, since he already benefited from the food. Even more so in your case, where the doughnuts were kosher, but that you didn’t wait the requisite time after meat. Kosher fraud laws might allow penalties, though, for such kashrus mislabeling” (C.M. 234:3-4; Nesivos 234:3).