Question (Submitted by a Reader): I recently bought a set of Artscroll Chumash with Rashi from my friend in yeshiva. He had put up a sign saying that it’s used and has his name in it. However, after I bought it I noticed there were several additional problems with it: his name was written across the entire first page whereas I think it’s only normal to have his name in small. Additionally, there were stickers in it and coffee stains and a word was highlighted and some pages were bent up.
Does he have to return my money because it is considered a false sale? It should be noted that I didn’t ask to see the set because I understood that only the name in it. If I would have checked the set before the sale for sure I wouldn’t have bought it!
In a subsequent exchange the reader was asked if he already paid for the set and he replied affirmatively. He also replied that he had the opportunity to see the Chumash before paying for it but did not exercise this right. He also was asked how much he paid and replied that he paid 325 shekels and the store price for a new set is 445 shekels.
Answer: What you call a “false sale” is called a mekach to’us in halacha. The rule is that if one purchases a good and later discovers a serious defect he is entitled to return it. The rationale is that the basis of every transfer of ownership is a person’s intention. If a person does not intend to buy something he doesn’t acquire it. Thus, when you state that you wouldn’t have purchased the set if you were aware of its true state, you are claiming that the sale was a mekach to’us. If your friend believes your claim then the sale is invalid.
However, your friend does not have to accept your claim that these defects are signifcant to you to the extent that you would not have purchased the set.
The reason is that you could have checked the set before paying for it and you did not exercise this right. The Magid Mishna (Mechero 15, 3) brings that “some say” that if one had the opportunity to check the good he was purchasing before he paid for it and yet he waived that right, he forfeits the right to claim afterwards that the sale is a mekach to’us. The logic of this opinion is that if one did not exercise his rights it means that he was prepared to purchase the good even if it had a defect because if it was truly important he would have examined the good prior to payment.
There are opinions (See Mishna Lemelech ibid) who disagree with the opinion of “some say”. However, there is no clear-cut ruling like either opinion and thus the issue remains undecided. Therefore, one cannot coerce the seller to return any money (See Mishpat Sholom 232, 4) with the argument that it is a mekach to’us.