I purchased silver-dipped leichter and when I opened the package at home, I saw a couple of scratches on it. I went to the store to return it but the owner claims that a few scratches is common for this item and is not considered damaged. Additionally, he claims that I should have examined them in the store, and once I left the store I relinquished my right to return them due to an imperfection.

Q: Is he correct that he is not responsible, or may I stop the check and return the leichter to him?

A: There are two issues under dispute. A) How do we determine what is considered a defect that cancels a sale; and B) Does a customer lose the right to return defective merchandise if he does not examine it for defects in the store?

The gauge used to determine whether a defect is grounds to cancel a sale is whether people, in general, would cancel a sale due to such a defect. A minor, generally ignored imperfection is not grounds to cancel the sale unless the customer reserved for himself the right to return it. The reason is that people conduct business matters in accordance with local customs (C.M. 232:6). It seems from Shulchan Aruch that even though customers would not have purchased the merchandise with the slight imperfection, it is not sufficient grounds to cancel a completed transaction, since most people don’t consider such a minor imperfection significant enough to cancel a sale. Even if the customer did not yet pay for the item, he may not cancel the sale and is obligated to pay.

Consequently, each situation must be considered to determine whether or not the imperfection is so significant that most people would return the item. This determination obviously takes into account the cost of the item and extent of the imperfection.

Regarding the second matter, one who discovers a defect in an item that he purchased has the right to return that item, even if he does not discover the defect until many years after the purchase. However, a customer who intends to return the defective merchandise may not use it once he discovers the defect, since by doing so he forgoes the right to return it (C.M. 232:3).

Some authorities maintain that if the customer could have examined the merchandise immediately and did not bother to do so, he loses the right to return it later for a refund (Sema 232:10). (This assumes that the merchant did not explicitly assure the customer that the merchandise is not blemished [Divrei Malkiel, E.H. 86 (6)]). Accordingly, in your case since you could have opened the box to examine the leichter before leaving the store and did not do so, you relinquished your right to return the merchandise if you subsequently found it to be defective. Other authorities reject this position as representative of a minority opinion (Divrei Chaim, C.M. 36) or limit the scope of its application (Nesivos 232:1). Therefore, if it is determined that the leichter are scratched to the point that most people would return them, it is permitted to stop the check and return the leichter to the merchant.