BS”D
Question
I recently saw an advertisement from a store that they had a bookcase for sale. When we spoke on the phone, I asked if the bookcase that they advertised was plywood and when the storeowner replied affirmatively I ordered one. It was clear that a critical factor in my order was that the seller said it was plywood. The store uses a trucking company to whom I had to pay one-hundred-fifty dollars for delivery. When I unpacked the furniture I saw that it was pressboard, which is inferior to plywood. The storeowner agreed to refund the amount I paid for the bookcase. I feel the storeowner should reimburse me as well for the one-hundred-fifty dollars I spent on delivery. Am I correct?
Answer
The owner was certainly required to reimburse you for the bookcase since the sale is classified as a mekach to’us. The source is a Terumas Hadeshen (res 322) who writes that if it is clear that you would have not purchased the other type of object, the sale is a mekach to’us. Thus your question is a general one: Does one who sold an item whose sale was canceled since it was a mekach to’us need to refund the transportation costs that were paid by the buyer?
This very question is discussed by the Rama who is cited by the Tur (232, 20). He rules that if the seller was aware of the defect, he has to reimburse the customer for his expenses, but if he was unaware he is not liable. He explains that the reason the seller is liable in case he was aware of the defect is because the expenses are considered garmi.
The reason the Rama says the psak depends on whether the seller was aware of the defect, is because he maintains, like many others, (See Shach 386, 6) that the reason one is liable for causative actions, which are classified as garmi, is a fine, a knass. We find in the Gemara (Gittin 53) in a case where a person mixed someone else’s food with terumo (causing its value to decline since the possible buyers of the food are now only kohanim who may eat terumo) that fines were imposed only if the action was done on purpose and not if it was done by mistake.
We should note that the Rama did not require that the seller intended to hurt the customer. He just required that the seller be aware of the defect. The reason is that even those who rule that one is not liable for accidental garmi agree that if the one who damaged was careless, he is liable. This can be derived (See e.g. Noda Biyehuda CM 1, 37) from the Gemara (Bava Kama 99B) which rules that if an expert said that a coin was not counterfeit and actually it was, the expert is liable. Even though the expert did not intend to damage the one who requested his opinion, nonetheless he is liable because he is considered to have been careless. Similarly in your situation, since the seller should have known that the bookcase was pressboard he is liable, according to the opinion of the Rama. We should note that the Shulchan Aruch (232, 21) rules like the Rama.
Several Acharonim question the Shulchan Aruch’s decision to follow the opinion of the Rama. They note that there is a major dispute between the Rambam and Ra’avad (Zechiya 6, 12) in a case where a couple became engaged and the bride subsequently broke the engagement. The dispute is whether the bride must reimburse the groom for the expenses he incurred which are customary for grooms who become engaged.
The Rambam maintains that the bride must reimburse the chosson for his expenses unless she can justify her breaking the engagement. Thus, for example, if the groom paid for an engagement party the bride will have to reimburse him. The Rambam’s reason is because she caused him a loss. The Ra’avad disagrees and maintains that the bride is not liable.
The Acharonim ask that it would seem that the Rama’s ruling is only in accordance with the opinion of the Rambam but the Ra’avad would disagree and it is not clear that the Rambam’s position is decisive. However, the Beis Mayer (Responsa 17) disagrees and writes that in his opinion even the Ra’avad would agree with the Rama because in the case of the engagement the bride initially intended to wed. It was only later that she changed her mind, and that is why the Ra’avad ruled that she is not liable for the expenses of the groom. However, in the case of a blemish, the seller right away engaged in an action that would cause a loss to the customer. Therefore, even the Ra’avad would agree that the seller is liable.
We should note that the question of these Acharonim is only relevant in cases like yours where the store had only one type of bookcase for sale and that is what you ordered. However, if the store sold both pressboard and plywood bookcases and the problem is that they sent you a pressboard bookcase instead of the plywood bookcase that you ordered, then there is no question that this cannot be compared to the Ra’avad. The reason is that we wouldn’t classify this as a mekach to’us. Rather the store simply never delivered what you ordered and they still owe you the bookcase that you ordered which they must still deliver to you using the money that you paid for delivery.
We should note further that the Shulchan Aruch (232, 21) rules that the sale is canceled as soon as you inform the seller of the defect. Therefore, it is the seller’s responsibility to bring the bookcase back to his store, or he can sell it in your city to a different customer, if he finds one.
In conclusion: You are correct in demanding that the store refund the money you paid for delivery.
