Question

I recently purchased an electric curler. I brought it home and the very first time I plugged it into the outlet it shut off the electricity. I called the store and they said I should return it and they will give me a different one. I gave it to my sister to return to the store on her way home from school. She put it down in school and when she finished school it was gone. It should be noted that she didn’t leave it in a very safe place. Can I still ask the store for a refund since the curler anyway wasn’t in working condition and also it was their curler that was stolen?

 

Answer

Before answering the actual sheiloh it is important to categorize this situation. Since the curler was defective the sale is classified as a mekach ta’us-an invalid sale. The rule (Choshen Mishpot 232, 6) is that any damage that people consider to be significant suffices to invalidate the sale. The reason (ibid, 7) is that every transaction is based on people’s clear-cut intentions and it is understood that people do not intend to buy defective objects. Even though the store did not know that they were selling you a defective curler, the sale is nevertheless invalid, since the reason the sale is invalid is not because of guilt of the seller but because of lack of intention on the part of the buyer to buy a defective good.

Since the sale was invalid, the curler did not belong to you. You had in your possession the store’s curler and the store had your money which it was required to return to you. When someone else’s object is in one’s possession his halachic status is generally that of a shomeir. In the case of a mekach ta’us there is a major dispute whether the customer is a shomeir chinnom (the opinion of Tosafos and the Ritva’s in theur commentaries to Bava Metsio 42B) or shomeir sochor (the opinion of the Ra’avad). The difference between the two is whether the customer is responsible for theft since a shomeir chinnom is not liable for theft whereas a shomeir sochor is.

However, in your situation your sister was careless and even though it was stolen, even a shomeir chinnom is responsible, since the theft was a result of careless behavior.

There is a second approach to understanding the customer’s relationship to the defective item. The Rama (Bava Basra 98A, note 62) and the Even Ho’ozel (Mechiro 16, 3) explain that the reason the customer is liable for theft is not because he is a shomeir on the object but it is a convention that governs the return of damaged objects. It is an unwritten convention that when a person wishes to have his money refunded, he must first return the seller’s object, because people do not view the return of the purchased item and the return of the money to the customer as two independent events. Just like the rule of what constitutes a mekach ta’us is determined by the attitude of the general public, so too the customer’s entitlement to a refund depends on people’s attitude. We should note that this approach is especially proper today since just like the customer is entitled to a refund from the store, so too the store is very often entitled to a refund from his supplier, for which the store must return the defective item. Therefore, in general stores refund a purchase only after the defective item is returned

There is a major difference between these two approaches which may be significant in your situation. If one understands that you were a shomeir on the store’s object, then you would owe the store the value of their defective curler but they would have to return to you your entire payment. The value of a defective object is not the same as one without a defect. Since you paid for a non-defective object you obviously paid more than the value of the damaged curler and the store would still need to return to you some money. One must first determine how valuable the defective curler was to the storeowner. (Often it is the price the store paid for it since the storeowner can return it to his supplier in exchange for a refund of the amount he paid.)

However, if one follows the approach of the Rama and Even Ho’ozel, the storeowner could hold on to your entire payment since you failed to fulfill the basic requirement to return the defective good.

As noted before, this is usually the correct approach nowadays and the store may deny your request for any refund. We should add that the entire discussion is valid only in case the storeowner believes and trusts the customer. If he does not, there is an additional reason not to return any money because he may demand proof that the item was defective before returning anything.

 

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