Question
I bought a shaver and the second time I used it to give my son a haircut the shaver hurt my son because it pulled on his hairs. I promptly returned it to the store and requested a refund. The storeowner replied that he is really just an agent of the supplier and not responsible, but he would try to return it and get me a refund from his supplier. In the end, the supplier refused to return any money to the storeowner. As a result, the storeowner refuses to return my money claiming that he is not a party to the dispute between me and the supplier since he just sells closed boxes and obviously is not at fault. He claims that this is the custom nowadays since stores just sell what they receive from their suppliers and they have no way of determining whether the items are defective. Is he correct?
Answer
The basis for your right to nullify the sale and return the shaver is because the sale is classified a mekach to’us– a sale made by mistake. The Rambam (Mechiro 15, 6) explains that, unless stipulated otherwise, an intrinsic condition of every sale is that the product is unblemished. Since the item you bought does not satisfy this condition the sale is void.
In your situation this is not the issue between you and the storeowner and in principle he agrees with you that the sale is void and that the supplier should refund your money. Your issue is that the storeowner contends that it is not his problem but yours since he had no way of knowing that the shaver was defective and you should go claim against his supplier.
While in the time of the Gemara and the Rishonim stores did not sell items in sealed boxes, nevertheless, we can determine the answer by studying how the Gemara ruled in analogous situations.
One case that is discussed in the Gemara (Kesubos 76B) is an animal which, after slaughtering, was found to have inside it a needle that penetrated the wall of its stomach rendering it a treifo. It is clear from the Gemara that the butcher has the right to return the animal to the farmer who sold it to him because it is a mekach to’us since it was clear that he only wanted to buy kosher animals. This is ruled by the Shulchan Aruch (232, 11). Thus, even though the farmer was justifiably unaware that the animal was blemished, nonetheless, he must refund the butcher’s money since it was clear that the butcher only wanted to buy kosher animals.
While this case proves that mistaken sales can be voided even if the seller is blameless, it does not prove this is the case where the seller himself bought the item that he sold from a third party who is blameworthy and liable for the defect. However, we can find proof for this point in a ruling of the Maharam of Rottenberg cited by the Mordechai (BM 291). The issue was that someone bought gold jewelry but when he broke it open he discovered that it really was gold-plated tin. The customer claimed that it was a mekach to’us but the seller claimed that he just sold what a gentile had sold him as gold jewelry and he was unaware of the true nature of what he sold you. This is very similar to the storeowner’s claim in your case. The Maharam ruled that nonetheless the sale was void since, even if the seller was cheated, he may not in turn cheat his customer. The Maharam’s ruling is ruled by the Rama (232, 18), rendering it authoritative.
Another similar case is discussed in the Gemara from which we can not only prove that you are entitled to return your shaver to the store in spite of the fact that the storeowner himself was deceived, but we also can derive an important condition.
The Gemara (BM 42B) discusses a case of orphans whose guardian purchased an ox from a cattle dealer on their behalf and he in turn gave the ox to the shepherd who tended all of the orphans’ animals. After a few days the ox died of starvation. It was discovered that the reason for its death was that the ox didn’t have teeth and therefore, could not consume the food the shepherd was leaving for it to eat. The Gemara says that the dispute was only between the cattle dealer who claimed that he was unaware that the ox lacked teeth and the shepherd, since the cattle dealer had already refunded the orphans’ money. The Gemara rules that, if the cattle dealer swears that he was unaware that the ox lacked teeth, the shepherd must pay the cattle dealer because he behaved negligently by failing to notice that the ox wasn’t eating because it lacked teeth.
Many commentaries, including the Tur (CM 232), understand that if the Gemara writes that the dealer refunded the orphans’ money it must be that he was obligated to do so because the sale was a mekach to’us. Thus, we see that the deal is classified as a mekach to’us in spite of the fact that the dealer swore that he was unaware that the ox lacked teeth, in which he was justified since he was only a dealer who bought and sold without examining the items prior to sale. According to these commentaries, we now have additional proof that your seller is responsible in spite of his being justifiably unaware at the time of the sale that he was selling you a defective shaver. In both your case and the Gemara’s case the seller in turn has a claim against the one who sold him the defective item but that does not free him from returning the money he received from his customer.
Many commentaries, beginning with the Tur, are perplexed by the Rambam’s recording of this anecdote. Based on this Gemoro the Rambam writes (Mechiro 16, 11) that if a person buys an animal from a dealer and doesn’t notice that the animal lacks teeth and the animal dies, the customer loses. He reasons that the customer should have noticed that the animal lacked teeth and returned it to the dealer who could have still returned it to the one who sold him the animal. Since by failing to return the animal to the dealer the customer caused the dealer to forfeit his right to a refund, the customer suffers the loss.
The Tur and others ask that the Rambam’s ruling seems to be contradicted by the Gemara since it indicated that the orphans (who were the customer) were always entitled to a refund in spite of the fact that the seller was only a dealer.
The Bach answers that the Rambam does not deviate from the Gemara at all. The Rambam agrees that the customer is entitled to a refund even if the seller’s behavior was totally justified. He just is adding another ruling: if the customer’s negligence caused a loss to the one who sold him the animal, the customer is liable for the seller’s loss. Therefore, even though the customer is initially entitled to a refund of his purchase, his payment is offset by the amount he owes the seller because of the loss he caused him. The reason is because, since the sale was voided, the customer has the status of a shomeir-a watchman over the seller’s object. He is therefore liable for his negligence like every other shomeir. Since many poskim (Shach, Gro, R. Akiva Eiger and others) agree with the Bach, his approach is authoritative.
This has important bearing on many sales that are void because they are classified a mekach to’us. Once the customer is aware that the item he purchased is defective he should notify the seller immediately since it could be that the seller will forfeit his right to return the defective item to his supplier if he does not make a claim immediately. If this happens the customer will lose his right to a refund. In your situation this did not happen since you informed the storeowner promptly and he did not lose anything on account of your behavior but it is an important condition to bear in mind.
While the above is the letter of the law, your seller further claimed that the custom is that storeowners only refund their customer’s money if they in turn receive a refund from their suppliers. If his contention is correct he would be justified in refusing to return your money since custom supersedes the pure halacha in monetary issues. However, only a custom that is common knowledge supersedes the law because it serves as an unspoken condition of the sales agreement. Since certainly this custom, if it exists at all, is not common knowledge, the law prevails. Based on the sources we brought, you are entitled to a full refund and the storeowner should deal with his supplier.
