Hilchos Choshen Mishpat

Volume III : Number 19

Returning Defective Merchandise

Question:

Reuven purchased a small electrical appliance in a store. The appliance was sealed in a factory sealed package. After bringing the appliance home, Reuven discovered that it was defective. Upon returning to the store, the merchant told him that he should contact the manufacturer for a replacement or refund. Reuven wants the merchant to save him the trouble by refunding the money and filing his own claim with the manufacturer.

According to Halacha, who is correct?

Answer:

1. As long as the merchant is an independent business owner (as opposed to being a sales agent for the manufacturer), he is obligated to give the buyer a full refund for any defective item purchased from his store. He can not force the buyer to file a claim directly with the manufacturer.

   However, there are certain items regarding which it is customary that the manufacturer deals with defects, either directly or through the use of local service centers or representatives. In this case, we say that the buyer agreed at the time of purchase that he would abide by the prevailing customary procedure, and he can not force the merchant to provide the refund. (1)

2. If the defective item was wrapped in transparent packaging, in a manner in which the buyer could have seen the defect before purchasing, but did not examine the item closely enough, or if the practice among buyers of this type of item is to try the item out before buying it, and the buyer did not do so, there is disagreement among the Rishonim whether or not the buyer can back out of the sale at all. Therefore, according to the Din, the buyer can not demand a refund from the seller. However, if there is a clear custom that even in such cases the buyer has a right to return the item and demand a refund, we follow the prevailing custom. (2)

   If the buyer was unable to examine the item for defects until after the purchase, according to all opinions he may void the sale upon finding the defect. Similarly, even if he might have seen the defect before purchase, but purchased on credit (e.g. with a credit card) or with post dated checks, according to all opinions the buyer may void the sale if the item is found to be defective.

3. There are times when, even though the seller is obligated to accept the defective item in return, he is not obligated to give a cash refund, but may give an in-store credit, as we discuss below in the sources. However, even in this case, the buyer may choose any other item in the store, and the merchant can not limit his options in any way. (4)

Sources:

(1) It is clearly stated in the Shulchan Oruch (Choshen Mishpat 232:18) and the Rema there, that any time a purchased item is found to be clearly defective (Mum Gomur), and the buyer did not have the opportunity to examine the item before the sale was completed, the sale is void and the merchant must fully refund the full price to the buyer. This is true even if the merchant was unaware of the defect at the time of the sale, and even if he will suffer a loss because he will no longer be able to return the item to the manufacturer.

What qualifies as a "clear defect"? The Shulchan Oruch there (232:6) states that this is a defect that most people in that society agree is substantial enough to warrant a return for a full refund. Anything less, even if this particular buyer considers it a major defect, does not justify voiding the entire transaction unless it was clearly stipulated at the time of the transaction that the item should not have any defects at all.

(2) The Maggid Mishna (Hilchos Mechirah 15:3) states that even if an item is found to be defective, if the consumer had the opportunity to examine it before the purchase and declined to do so, the seller is not obligated to agree to void the sale. The SM"A (232:10) agrees with this. However, the Pischei Teshuva there (1) states that the language of the Rambam and the Shulchan Oruch seems to indicate that they are of opinion that even in such a situation the sale is void if a defect is ultimately found.

The Maggid Mishna also states there that in a situation where the buyer did not have the opportunity to examine the item before purchase, he need not return it for a refund immediately upon finding it, but may do so whenever it is convenient for him.

(3) The Maggid Mishna agrees that in this case, if the item was purchased on credit, even if the buyer had the opportunity to examine the item but did not, he may void the sale upon finding a defect. The reasoning behind this is because the fact that he went through with the sale without examining the item, is no indication that he forgives any defects that he may find, since he knows that even if he finds a defect after the purchase, he can withhold payment on the item.

(4) It is well known that there are stores that do not allow cash refunds and instead they allow in-store credit. Ostensibly, this is more convenient for them in dealing with tax authorities. Even though they could offer refunds if they wished to, they prefer not doing so to avoid audits, etc. A person who purchases in such a store does so on condition that he agrees to these terms, and can not force the store to return his money, even if a defect was found.

However, since this credit is in place of the cash refund that the buyer was supposed to receive, he may purchase any items in the store that he wishes, and the merchant can not force him to purchase an item of the same type as the defective one.

In stores where it is not clearly posted and well known that this is the policy, it is doubtful if they can force the buyer to accept in-store credit for a defective item instead of a cash refund.

If the seller really has no obligation according to Halacha to void the sale, for example if the buyer changed his mind after purchasing the item and wishes to return it (but there was no defect or misrepresentation at all), if the seller does agree to accept the item in return, he can obviously impose any conditions that he wishes on such a return.

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This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av Bet 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. His columns have recently been compiled and published in a three volume work called Mishpetei HaTorah, which should be available in your local Sefarim store.

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This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av Bet 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. His columns have recently been compiled and published in a three volume work called Mishpetei HaTorah, which should be available from your local Sefarim store.

Feedback is appreciated! It can be sent toatendler@torah.org.

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.

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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!