My wife recently purchased a dress and the very first time she wore it, it tore in a few places. Since obviously it was defective she went back to the store to return it. When she asked for the return of her money the store owner replied that the general practice is to give a certificate entitling my wife to purchase a different item from the store, but not to refund cash. My wife doesn’t want to buy something else at the store since she does not want to buy low quality clothing. Is he correct or can she demand the return of her money?
In Israel there is a consumer protection law that requires a seller to refund cash if the customer returns a bought item for any reason within a short period. Since this this law is not universal, we will discuss the issue strictly from a Torah viewpoint.
There are two possible reasons the storekeeper could be correct. The first is that perhaps the halachah entitles him to refuse to return cash. The second is that even if the halachah does not permit him to refuse, perhaps general practice overrides the halachah.
The sale is clearly classified as a mekach to’us . The criterion for determining if a sale is classified as a mekach to’us is common behavior. The SA writes (CM 232, 6) that if the local practice is to return an item with the defect that was present in the purchased item, the sale is classified as a mekach to’us.
When a sale is invalidated as a mekach to’us, the purchased item reverts to the seller and the seller owes money to the customer since he received payment for the defective item, which is returned to him. In order to decide what the seller must return and to determine whether the halachah allows him to refuse to return cash, we have to investigate the nature of the store owner’s debt from the standpoint of the halachah.
Since there is no Gemara that addresses this particular question, the issue was left to the Rishonim who have three approaches. In general, we find different ways in which a person can receive money that he must pay back, and the question is where money received in exchange for an item whose sale was voided on the grounds of mekach to’us fits in.
The approach of many Rishonim, including Rabbenu Tam (Tosafos BK 46B), the Ramban (Kiddushin 56B) and many others, is that if the store owner no longer has (or can identify) the specific money that he received from his customer, he has the status of a borrower. While the customer never formally extended a loan to the seller, nevertheless, these Rishonim maintain that since the seller now owes the amount of money that he received from his customer, the seller has the same status as one who formally borrowed that money. The Ramban explains that the reason is because the salient feature of a loan is that the borrower does not have to return the exact money that was lent to him (milveh lehotso’o nitno). Since, when the customer gave money to the store owner it was intended that the store owner use the money as he sees fit, these Rishonim rule that the money that the seller owes is halachically equivalent to a loan. It should be noted that this opinion is ruled by the Ramo (CM 232, 23).
The second approach is that of the Ri (Tosafos BB 92B). He maintains that since the sale is retroactively invalid, the seller never was given permission to use the money and he should theoretically return the exact money that he received from his customer. Thus, we view the money that was given to the seller as the customer’s money. Following this rationale, when the seller used the money he essentially damaged the customer’s property. Therefore, the money he owes now is classified as payment for the damage he did to the customer’s money.
The third approach is the Yerushalmi (Kiddushin 2, 9) which considers the money as stolen. The Rosh (Kiddushin 2, 31) cites the Yerushalmi and comments that if the Yerushalmi would not have classified it as theft he would have classified it as a loan (i.e. the first approach). The Tur, the Rosh’s son, actually rules (Even Ho’ezer 28) that the money is stolen money, and the SA (EH 28, 22) rules that if one used money received from a sale that was a mekach to’us to marry his wife, the marriage is questionable because perhaps the halachah is that the money is stolen money, in which case the marriage is invalid.
The Nachal Yitzchok (81, 32, 6) is troubled by the fact that both the Rosh and SA seem to contradict themselves since in other places they rule that money received from a mekach to’us is a loan. He answers – and that is the opinion of several poskim – that the Yerushalmi only classifies the money as theft if the seller was aware that he was selling defective goods since in that situation he used deceit in order to obtain the customer’s money. However, if he acted in good faith the money is a loan.
Thus, while everyone agrees that the seller owes the customer the amount of money that the customer paid for the defective item, we have three opinions as to the nature of this obligation. According to the first opinion the seller must repay a loan. According to the second opinion he must pay for damages. And according to the third opinion he must pay for having stolen the customer’s money.
What someone who owes money must pay depends on the nature of the obligation. (See Tosafos (BK 9A) who derives these rules from various sections of the Gemara.) If one repays a loan, he must pay with cash if he has any. The debtor is not required to sell anything in order to repay the loan but if cash is available he must repay with cash. One who pays for damages may repay with goods even if cash is available. It is important to note, however, that the Gemara (BK 7B) writes that the reason one may repay with moveable goods is because one is able to sell them someplace. Finally, one who pays for theft according to the Shach (354, 7) must repay with cash and, according to some opinions (Machane Efraim, Gezeilo 23 and others) he must even sell his possessions in order to obtain cash.
Returning to your question, according to the halachah the seller cannot force you to accept a certificate since no approach allows him to pay that way, without your consent. Even the approach that he is paying for damages only allows him to pay with items that have a market where they can be sold. However, since there is no market for store-issued certificates, the store owner cannot force you to accept his purchase certificate as payment according to halachah.
However, if it is general practice to refund customers of clothing by giving a certificate, the “custom” (minhag) will override the halachah since it is as if you and the store owner originally agreed to allow the store owner to repay you with a certificate in case there is a blemish in the clothing you bought.