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Pinchas-Selling Slightly defective Merchandise at a discount without informing the customer



I import and sell dry goods in my stores. Recently, I received a shipment of summer blankets. The blankets are perfect except that they have noticeable white spots on them. I would like to sell them as if they are first quality at a ten percent discount to account for the imperfection. The reason I prefer selling them this way is that if I sell them as seconds or label them as imperfect I will have to mark them down by about fifty percent and incur a loss. Is my plan permitted under Torah law?


There are three distinct issues that must be considered: ono’o-overcharging, mekach to’us– a sale that is based on false premises and geneivas da’as-misleading someone.

Before deciding whether there is an issue of ono’o we should mention a few pertinent rules. One rule (CM 227, 2-4) is that if the price that is being charged deviates by a sixth from the fair price the sale is valid but the deviation must be returned to the victim. If the deviation is greater than a sixth the entire sale is canceled and if it is less the sale is valid and stands as is. The Shulchan Aruch (227, 6) cites the Rosh who leaves open the question whether one who overcharges by less than a sixth still violates the prohibition against overcharging. Thus, the question whether there is a violation of ono’o depends on how your price compares to other people’s prices.

Thus, it depends on what other stores do. If other stores sell blankets with this type of defect at a fifty percent discount you will be violating the laws of ono’o. However, if others would charge a similar price or if there is no fair price since each case is different, you will not violate the prohibition.

Turning to the issue of mekach to’us it is important to understand the concept and its rationale. When a sale is classified as a mekach to’us, either one of the parties may cancel the sale because the sale was based on incorrect information. The reason is that transactions are only valid if both parties fully desired to effect the transaction. Therefore, transactions that are based on incorrect information may be canceled.

There are two factors that we need to consider in order to determine if your customers will be entitled to undo their purchase on the grounds that the sale constitutes a mekach to’us. The first factor is whether the defect is significant enough to render the sale a mekach to’us.

The Rambam (Mechiro 15, 5) is the source both for the criteria which qualify which defects are significant enough to undo a sale and the rationale for these criteria. He writes that the rationale is that when one purchases something there is a tacit agreement between the seller and the buyer that any issue that was not spelled out explicitly in the sales agreement will be governed by local custom. Therefore, your customers will be entitled to return any blanket that customers customarily return due to defects of this nature. In order to apply this criteria to your situation you will have to determine whether it is customary for stores to accept returns by their customers for defects that are as significant as these spots.

Even if the spots are significant enough there is something that you can do that will prevent sales from being subsequently rendered invalid due to this defect. The source for many of the rules governing mekach to’us is the rules laid down by the Gemara regarding marriage. The reason is that the Torah’s perspective is that when a man marries a woman he is effectively acquiring her, in a sense. The Gemara (Kesubos 75B) states that we can safely assume that people do not wish to acquire a wife who is blemished. Therefore, if a man discovers a blemish in his wife only after his marriage he may undo his action.

However, the Mishna (Kesubos 75A) writes that if the blemish is noticeable, the groom is not able to undo the marriage even if he claims that he was unaware of the blemish. Even if the blemish is in a place that is usually covered by clothing but everyone bathes in a public bathhouse (customary in Roman-Mishnaic times) the husband does not have a right to invalidate the marriage. The Gemara (75B) says that the reason is that since people do not normally get married without first checking whether their bride has blemishes, we assume that if a groom married a girl he checked her out and decided to marry her in spite of her defect.

The Chafetz Chaim writes that in his time a father is not entitled to invalidate his daughter’s engagement (and the dowry he committed himself to at the time of the engagement) on the grounds of mekach to’us if he was told that the groom is a talmid chacham and he subsequently discovered that he is not a talmid chacham at all. He writes that the reason is because it was customary (then) for father-in-laws to have a qualified person test their future son-in-law before the engagement. If the father-in-law did not follow this custom he forfeited his right to invalidate the engagement on these grounds.

While we cannot compare every purchase to marriage and postulate that any defect that could have been uncovered, even if it required significant effort, cannot subsequently serve as a reason to invalidate a sale, nevertheless, the Rif (res 163, cited by Beis Yosef CM 232) derives an important general principle. The principle is that a defect which people generally notice before purchasing an object cannot serve as the basis for subsequently invalidating a sale. The reason is because we assume that the customer was aware of the defect and decided to make the purchase in spite of the defect. Just like when acquiring a wife people make inquiries before engaging and we always assume that the groom did so, so too we assume that customers make the customary examination before purchasing something.

Turning to your blankets, if you display the blankets for sale so that people can clearly see the spots when they look at the blankets in the store, you will avoid subsequent liability on the grounds that your sale was a mekach to’us. The reason is that people normally look at blankets before they buy them since they want to see the color, pattern etc. and one who does so will notice the spots.

This is similar to what the Gemara (Kesubos 57B) rules, that a person who buys a slave is not entitled to subsequently invalidate the sale on the basis of an external defect. The reason is that we assume that the customer noticed the defect before he bought the slave and decided that, nevertheless, he wished to purchase the slave. If subsequently he claims that the sale constitutes a mekach to’us we assume that it is due to other considerations that the customer changed his mind and he is just using the defect as an excuse to cover up his change of heart.

This is especially true in your case since if a person did not even look at the blanket before buying it he obviously does not care about the blanket’s appearance. Since you say that the only defect in these blankets is their external appearance the customer cannot later claim that his purchase was based on false assumptions since either he noticed the spot or in any case did not care about it, for example, if he always places his blankets inside blanket covers.

Coming to our final issue, geneivas da’as, this is an independent issue. Even if a sale cannot be canceled on the grounds of it being a mekach to’us the seller may still violate the prohibition of geneivas da’as. For example, if the seller covers up a defect that people care about but it is not customary to accept returns based on this defect since it is not critical, the seller, nevertheless, is guilty of geneivas da’as even though there was no mekach to’us. For example (See Me’iri BM 60A, Bach CM 228, 6) if a seller makes his wares appear as if they are of high quality but only charges the price of low quality without saying that they are of high quality, the customer cannot subsequently cancel the sale on the grounds of mekach to’us. However the seller still violated the prohibition of geneivas da’as. The reason is that many people prefer buying high quality goods at a high price to inferior goods at a cheap price.

We should mention that if you package the blankets in a way that customers will not notice the defect until they open the package, whether they will be able to return the blankets on the grounds of mekach to’us or not you will violate the prohibition of geneivas da’as. This is stated by the Rambam on two occasions. In one place he writes (Mechiro 18, 1), “It is forbidden to deceive another when engaging in commerce… If one is aware that his wares are defective he must inform his customer.” In another place he writes (Mechiro 15, 6), “It can be assumed that customers wish to purchase only non-defective goods.” However, if you package the blankets in a way that customers will notice the spots before purchasing them there is no issue of geneivas da’as because you are not deceiving your customers.

In conclusion: If you package your blankets in a way that the spots will be noticed by customers when they look at the packages and your price is not out of line with accepted prices you may sell the blankets without any special label.





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