Invalidating a Transaction Because of Defective Merchandise

From Halachipedia

What is Considered a Defect?

  1. Any defect that people in that place consider to be a defect such that they would return it is considered a defect for that product.[1] If people do not consider it a defect, even if it is inferior quality than he was expecting it isn't a defect.[2]

Using an Item after Finding out about a Defect

  1. After a person finds out about a defect and decides to return it, he may not use the product. If he does, he is not allowed to return it.[3]

Doubt about When the Defect Was Made

  1. If a buyer buys a product and finds a defect, but it isn't clear whether the defect was made while it was in the domain of the buyer or in the domain of the seller, it depends on where the product is when the defect was discovered.[4]
  2. If it was only discovered in the domain of the buyer, it is the buyer's obligation to prove that it happened in the domain of the seller. Otherwise, it is halachically assumed to have happened in the domain of the buyer.[5]
    1. Therefore, if the buyer already paid he cannot get his money back. Also, if the buyer didn't yet pay, he must pay.[6]
    2. Some authorities disagree on this last point and make a distinction. If the buyer didn't yet pay and the defect was discovered in the domain of the buyer, then if the item being sold had a halachic presumption (chezkat haguf) that it was not defective then the buyer must pay. However, if the item being sold did not have a halachic presumption that it was not defective, such as something that is known to become defective over time, the buyer does not need to pay.[7]
    3. If someone bought cheese and after a few days he opened up the package and saw that it was moldy. He should ask the experts in the field and if they say that this type of mold is certain to only develop after a long time and it must have already been moldy at the time of the sale, the sale is invalidated because of the defect. However, if the experts say that they're not sure if this type of mold could develop in the few days after he bought it, if he paid already he may not get his money back. If he didn't yet pay, according to the first opinion he must pay, but according to the second opinion he does not need to pay.[8]
    4. If someone bought beer and the buyer found that it was spoiled a short time after he bought it, if it is unclear if it was spoiled at the time of the sale, the buyer cannot get his money back. If he didn't yet pay, according to the second opinion he does not need to pay.[9]
    5. If someone bought an animal and found a defect that would make it teref and it is unclear if that defect developed in the seller's or buyer's domain, if it was only discovered in the domain of the buyer, everyone agrees that the buyer must pay. The reason is that there's a halachic presumption that an animal is not teref.[10]
  3. If kesot netivot 224:2
  1. ↑ Rambam (Hilchot Mechira 15:5), Shulchan Aruch C.M. 232:6
  2. ↑ Bava Batra 83b, Rambam (Hilchot Mechira 17:2), Shulchan Aruch C.M. 233:1
  3. ↑ Shulchan Aruch C.M. 232:3
  4. ↑ Ketubot 75b-76b, Shulchan Aruch C.M. 224:1-2, 230:10, 232:11, 232:16. This concept is known in the gemara as כאן נמצא כאן היה (trans. kaan nimsa kaan haya; lit. this is where it was found and this where it was). In whosever domain the defect, it is assumed that the defect was made while in that domain. Rambam and Shulchan Aruch 224:1 hold that it is considered in his domain as long as it is physically in his property. Rosh and Rama 224:1 hold that it is considered in his domain if he made a halachic kinyan, even if he didn't yet remove it from the physical domain of the seller.
  5. ↑ Ketubot 76b, Shulchan Aruch C.M. 224:2
  6. ↑ Bet Yosef as quoted by Sma 232:35
  7. ↑ Sma 232:35. Pitchei Choshen (v. 5 ch. 12 fnt. 92) discusses this dispute Bet Yosef and Sma.
  8. ↑ Shulchan Aruch C.M. 232:16, Sma 232:35
  9. ↑ Sma 230:14
  10. ↑ Ketubot 76b, Shulchan Aruch C.M. 224:1, 232:11
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