Question
We ordered a carton of meat from a sale on Chanukah. The meat was advertised as kosher for Pesach. We purchased a large amount (250 Shekel) specifically for Pesach, as we do not eat meat except on Yom Tov because we live on a tight budget. When it arrived, we could not find any kosher for Pesach 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 their representative assured us that it is kosher for Pesach all year round. We requested the number of the Mashgiach to hear this confirmed directly by 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 shocked to hear him say that although it’s supposed to be fine for Pesach all the time, in the absence of a kosher for Pesach sticker, we should certainly NOT use it on Pesach. We then contacted the sellers, both to alert them that the Mashgiach does not agree with what their representative had answered us and to discuss the mekach to’us involved. Usually we would not make an issue, but in this case we have no use for the meat. After their representative consulted the ones in charge, they asked if we still had the carton. We did not. They then said that without the carton, all they could do was give us a 50 Shekel voucher. We thought this was wrong, given that we had spent 250 NIS on what seemed to us a mekach to’us. They insisted that they could do no more for us. They emphasized that since we had not saved the carton, they cannot do anything with just packages of meat. Also, several weeks had passed from the time we picked up the meat until the time we got back to them after having spoken to the Mashgiach. We actually first attempted to contact them only two weeks and one day from when we picked up the meat, but they told us to call back three days later, and with all the back-and-forth, several more days passed until they got back to us with their offer of 50 Shekel.
Answer
There are a number of sheilos involved in your question but nonetheless most of the details of the incident we will see are not relevant.
The first question is whether this is a mekach to’us at all. The basic question is whether receiving non-kosher for Pesach meat on Chanukah in place of kosher for Pesach meat constitutes a mekach to’us, even if it was advertised as being kosher for Pesach.
We must stress at the outset that a key element is the fact that the sale took place around Chanukah and not after Purim, for example, since around Chanukah for most people whether the meat is kosher for Pesach or not 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 Responsum 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 the case of a person who announced that he is interested in buying eggs that were laid by a chicken. Someone who heard his announcement sold him eggs that were not laid but were found in a chicken which was slaughtered. The Gemara rules that it is a mekach to’us because we assume that the reason he specifically requested eggs that were laid is because he wanted to raise a chicken and chickens do not hatch from eggs that were not laid.
The Gemara clarifies that if we knew that the customer in fact wanted eggs that were laid because of their better taste then the sale would not be 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 from an animal that was not castrated, he is generally only entitled to the difference in price since most people who want the better tasting meat can also eat the less tasty meat. Only a person of whom it is known that he would never 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 derive from this Responsum that pertain to your situation. First, we see that a person who received a similar but different food from what he requested, even if he made a point of it, cannot cancel the sale on the grounds of mekach to’us. Second, this halachah changes for a person who is known to behave in a unique unconventional manner.
We should further note a number of other points. First, the Terumas Hadeshen bases his entire answer on Rashi, but there are many other Rishonim who do not understand the Gemoro as Rashi does. For example, in the text of the Gemara that is recorded in the Rif and Rosh (Beitso (1, 9)) the case in the Gemara is different from the way Rashi records and understands it. According to their understanding, there is no source for the ruling of the Terumas Hadeshen. Second, many Acharonim point out that the Terumas Hadeshen’s ruling seems to be contradicted by a Mishna (Bava Basra 83B) which rules that if a customer received bad wheat instead of good wheat he can cancel the sale.
Some Acharonim (e.g. Maharshal (Yam Shel Shlomoh Beitso 1, 20) and Bach (233)) therefore, 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 like bad wheat in the Mishna. Only if one cannot eat the food is it 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 usually eat it even on Shabbos because of its expense, you certainly cannot consider the meat to be worthless and cannot void the sale for this reason. However, we must see 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 Veshov Hacohen (res. 64, also cited by Pischei Teshuvo) explains that even though normally one who overcharges less than a sixth does not need to return the money, here he must refund it. Therefore, if there is a difference in price between meat that is kosher for Pesach or not, then you would be entitled to a refund of your overpayment even if it was small. However, in fact there is no difference in price in your case so you are not entitled to any refund for this reason.
However, we mentioned that the Terumas Hadeshen rules that we must take into account an individual’s known idiosyncrasies. Given this behavior on your part, you are entitled to a refund of some money, if the seller believes you. The amount you are entitled to 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 be willing to spend to eat meat, and that is the amount you have to pay for the meat. Any amount you paid above that, you could ask to be refunded to you.
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 you were offered it at a twenty percent discount, you are not entitled to anything more than their offer.
In conclusion: Since you already paid for the meat you cannot cancel the sale and demand a return of your entire payment. The most you could rightfully claim would be the difference between what you paid and what the meat is actually worth to you.
The seller does not have to believe you that you would only buy kosher for Pesach meat even on Chanukah, but if he does believe you, he should give you a refund of the difference in price between what you paid and the meat’s actual value for you. It would seem that probably the twenty percent discount you were offered would suffice unless you are certain that it does not and the seller believes you.
If you wish to read further about mekach to’us, we discussed these issues at length in our sefer, Mishpatei Yosher.
