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Product sold as Kasher for Pesach when it wasn’t

Question:

Lichvod Harav Fleishman,
We ordered a carton of meat from a meat sale on Chanukah. The meat was advertised as כשר לפסח. We purchased such a large amount (250 Shekel) specifically for פסח, as we do not make meat except on Yom Tov, generally. When it arrived, we searched well but could find any כשר לפסח sticker on the carton. Therefore we opened the carton, hoping to find stickers on the individual packages, but there were none.
We contacted the seller, and they assured us that it is כשר לפסח year round. We pressed further, requesting the number of the Mashgiach to hear this confirmed directly from him. It took us some time to reach him, as he was available only late at night, and at some point we were dealing with Corona in our home. When we finally reached the Mashgiach, we were pretty shocked to hear him say that although it’s supposed to be fine for פסח, in the absence of any כשר לפסח sticker, we should certainly NOT use it on פסח.
We then contacted them, both to alert them that the Mashgiach does not agree with what their representative had answered us (and possibly others, as well), and to discuss the מקח טעות involved. Usually we would just deal with the situation and not make an issue, but in this case we actually have no use for the meat.
After their representative consulted the ones in charge, they got back back to us asking if we still had the carton. Obviously we did not. They then said that without the carton, all they could do was give us a 50 Shekel credit. We thought this was wrong, given that we had spent 250 NIS on what seemed to us as a מקח טעות. They were adamant that they could do no more for us. We then asked them if had they consulted a Rav or Dayan before writing us off, as in our understanding they were not being “generous” by offering a small זיכוי (as they stated that they felt they were being), but were perhaps holding our money שלא כדין.
At this point they perhaps appreciated the question involved, and told us that if WE would ask a Dayan, they would accept the פסק. They asked us to emphasize that we had not saved the carton, so they have nothing to do with the packages of meat, and that several weeks had passed from the time we picked up the meat until the time we got back to them having spoken to the Mashgiach. (We actually attempted to contact them, having spoken to the Mashgiach, two weeks and one day from when we picked up the meat, but they told us to call back 3 days later, and with all the back and forth with them, several more days passed until they got back to us with their offer of 50 Shekel.)

We would greatly appreciate your view on what is proper to happen monetarily at this point.

Thank you very much,

Answer:

Answer by Horav Y. Fleishman shlit”a

There are a number of sheilos involved in your question. However, the first question is whether this is a mekach to’us at all. The basic question is whether receiving non-kosher for Pessach meat on Chanuka in place of kosher for Pessach meat constitutes a mekach to’us, if it was advertised as being kosher for Pessach.

We must stress at the outset that a key element is the fact that the sale took place around Chanuka and not after Purim since around Chanuka for most people whether the meat is kosher for Pessach is not critical.

In order to answer this question it is necessary to consider a section of Gemara in Beitzo (6B) and to carefully analyze a responsa of the Terumas Hadeshen (322) that is ruled by the Ramo (233, 1) to determine if your situation is comparable and if it is what are the halachic results.

The Gemara, as understood by Rashi, discusses an anecdote concerning a person who announced that he is interested in buying eggs that were laid by a chicken. However, someone who had heard his announcement sold him eggs that were never laid but were found in a chicken which was slaughtered. The Gemoro rules that it is a mekach to’us because we assume that the reason why he specifically requested eggs that were laid is because he wanted to raise a chicken and chickens do not hatch from eggs which were never laid.

The Gemara says that if we could have assumed that the customer requested eggs that were laid because of their better taste then the sale would not constitute a mekach to’us and the seller would only be obligated to reimburse the customer for the price difference between the two types of eggs.

The Terumas Hadeshen derives from this that if a person requested meat from an animal that was castrated, which is more tasty, and received less tasty meat because it was from an animal that was not castrated, generally he is only entitled to the difference in price since most people who want the more tasty meat can eat the less tasty meat. Only a person who is known that he never would eat the less tasty meat can cancel the sale and require the seller to return his entire payment since the meat he received was worthless to him.

There are two very notable conclusions we can derive from this responsa that pertain to your situation. Firstly, we see that a person who received a similar but different food from what he specifically requested cannot necessarily cancel the sale on the grounds of mekach to’us. Secondly, he rules that the halacha changes for a person who behaves in a unique unconventional manner.

We should note a number of points. Firstly, even though the Terumas Hadeshen bases his entire answer on Rashi’s commentary, nevertheless there are many other Rishonim who do not understand the Gemoro in the manner of Rashi. For example, in the text of the Gemoro that is recorded in the Rif and Rosh (Beitso (1, 9)) the anecdote in the Gemoro is different from the way Rashi records and understands it. Therefore, according to their understanding the source of the ruling of the Terumas Hadeshen is non-existent. Secondly, many Acharonim ask that it would seem that the Terumas Hadeshen is contradicted by a Mishna (Bava Basra 83B) that rules that if a customer received bad wheat instead of good wheat he can cancel the sale. Some Acharonim (e.g. Maharshal (Yam Shel Shlomo Beitso 1, 20) and Bach (233)) disagree with the ruling of the Rama. However, others (e.g. Sema (233, 5), Sha’ar Mishpot (233), Beis Yehuda (CM res. 67)) answer that being less tasty does not fall into the category of being “bad”. Only if one “cannot” eat the food it is classified as “bad”.

Therefore, since the Rama rules the Terumas Hadeshen and others disagree but others defend the Terumas Hadeshen one cannot force an entire return of money that was paid on the grounds of mekach to’us based on agreement or disagreement with the Terumas Hadeshen. Thus, if according to the Terumas Hadeshen your sale does not constitute a mekach to’us you cannot invalidate the entire sale and demand the return of your entire payment.

As we mentioned earlier, the Terumas Hadeshen differentiates between one who never would eat this kind of meat (he describes it as having a foul odor and being of poor quality) for whom “the meat is valueless” and one who would only prefer not eating the meat. Since you eat meat, but just don’t splurge on meat, even on Shabbos, you certainly cannot qualify the meat as valueless and cannot void the sale. However, we must understand what the Terumas Hadeshen rules in case the customer cannot void the sale.

In case the sale cannot be voided, the Terumas Hadeshen rules that the seller must return the difference in value between the better quality and poorer quality meat. The Vehsov Hacohen (res. 64, also cited by Pischei Teshuvo) explains that even though normally one who overcharges less than a sixth does not return the money here he must. Therefore, if there would be a difference in price between the meat you bought if it was kosher for Pessach then you would be entitled to a return of your overpayment even if it was small. However, there is no difference in price in your case so that would not entitle you to a reduction in price. However, we mentioned that the Terumas Hadeshen rules that we must take into account an individual’s known idiosyncrasies. Therefore if they are willing to believe you that you would not buy the meat for a regular Shabbos, you are entitled to a return of some money. The amount of money you are entitled to receive is the amount you paid that is above the meat’s value for you. If you normally eat chicken on Shabbos you must consider how much more you would spend if you were offered meat and that is the amount you have to pay for the meat. As a general rule, the Gemoro (Bava Kama 20A) rules that a person would pay two thirds of the value but perhaps here it is more. By offering you a fifty shekel discount they are selling you meat for a twenty percent discount on their normally cheap prices. Unless you are certain, and they believe you, that you wouldn’t buy the meat for Shabbos if offered a twenty percent discount you are not entitled to anything more that their offer.

In conclusion: Since you already paid for the meat you cannot cancel the sale and demand a return of your entire payment. However, if the seller believes that you would not buy the meat for a regular Shabbos you are entitled to a discount equal to the difference in price between the price you paid and the meat’s value for you.

If you wish to read further about mekach to’us, we discussed these issues at length in our sefer, Mishpatei Yosher.

 

 

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