Question
I run an institution and we needed to buy a large electric frying pan. I spoke to someone who wanted to sell a used frying pan for a very cheap price. I asked him if the frying pan was in working condition. He replied that he used it only ten times and it worked fine. He mentioned in passing that he hasn’t used it recently, and in the meantime, he kept it in his parking lot.
I bought the frying pan and paid for it. The first time I tried to use it, it didn’t work. I took it to a repairman and he said that an inexpensive electronic part became rusty and needs to be replaced. He explained that the cause is the fact that it sat outside and wasn’t used.
Am I entitled to return it since it seems to me that it is a mekach to’us since the fact that one can’t use the frying pan is a major defect in the frying pan? Also, if I am correct and indeed it is a mekach to’us but the seller wants to change the part and force me to keep the frying pan, can he force me or can I refuse his offer and demand my money back?
Answer
In order to decide if it is a mekach to’us – a sale based on mistaken premises – we have to understand the concept of mekach to’us and see if it applies in your situation.
The Rambam (Mechiro 15, 6) based on the Gemoro (Kesubos 72B) writes that the reason a buyer can reverse the sale to him of an object that turns out to be defective because it is a mekach to’us, is because we assume that people do not wish to buy objects that have a defect. Therefore, even though nothing was explicitly stipulated, an inherent condition of every sale is that the sale is conditional on the object being non-defective. Therefore, it seems that your sale was a mekach to’us since your frying pan was defective.
However, like any other condition, the presence of a defect does not automatically invalidate the sale. Rather, the condition gives the buyer the power to invalidate the sale. However, like any other condition for the buyer’s benefit, the buyer may waive this condition.
The problem in your situation is that the seller informed you that the frying pan was stored in his parking lot. The reason this is a problem for you is a ruling that is cited by the Magid Mishna (Mechiro 15, 3) that if a buyer could have uncovered a non-major defect and yet he paid for the object without checking for the defect, he forfeits his right to invalidate the sale. While there are many (e.g. Mishne Lemelech ibid, Maharshdam res. CM 385, Nesivos 232, 1) who disagree with the Magid Mishna, the buyer cannot force the seller to return his money since there are also many (e.g. Rif res. 153, Radvaz (4, 136), Mahariya (3, 223)) who agree with the Magid Mishne. Since it is the buyer who is trying to get money back, based on the rule that hamotsey mechaveiro olov horayo (one who wishes to obtain money must prove his case), if this is your situation, you would not be able to demand the return of your money since this halachic dispute is unresolved.
According to almost all opinions, and this is the halacha, if you had not yet paid for the frying pan you would be entitled to return it because it wasn’t incumbent on you to check out the frying pan. Unless the seller will incur a loss there is no time limit for the invalidation of a sale that is classified as a mekach to’us. (The source is the Mishne Lemelech (Mechiro 15, 3) which is agreed to by many.) However, since you did pay for the frying pan perhaps according to this Magid Mishne you should have checked out your purchase.
In order to decide whether the Magid Mishne’s position applies in your case we must understand the reasoning behind this opinion. The rationale is that one can only reverse a sale of a defective object if he never agreed to buy the defective object. However, in general if a customer accepted the purchase initially and only later changed his mind, he cannot invalidate the sale. This opinion reasons that one who pays for an object that could easily have been checked for the defect before paying, shows he is willing to forego the defect. Even though people normally don’t want to buy a defective object, sometimes there are special reasons (e.g. the price is unusually cheap as it was in your case) why a person may be willing to ignore a defect. If he pays without checking, the customer shows that he doesn’t mind a non-major defect.
Custom plays an important role in determining whether failure to check out a purchase indicates willingness to accept a defect. For example, when one buys a used-car it is customary to have it checked by a mechanic. Therefore, one cannot invalidate his purchase of a used car because of a non-major defect if he did not have the car checked by a mechanic.
Probably, before paying for a used frying pan, one who really minded a defect would at least plug it in and see if it works properly. But even if not, in your case where you were informed that the frying pan was left outside in a parking lot, you should have checked to see if it works before paying for it. This is similar to a ruling of the Maharsham (res. 2, 231) in the case of a person who bought and paid for eggs after being informed by the seller that he does not take responsibility for the quality of the eggs. When he heard this statement, the customer should have been alerted to the possibility that the eggs could be of poor quality.
Similarly, when you heard that the frying pan was left outside in a parking lot you should have been alerted that it could be that the electric frying pan sustained damage in the interim. Therefore, simply based on the laws of mekach to’us you would not be able to demand return of the money you paid.
However, for a different reason you can invalidate the sale. Since you asked the seller if the frying pan worked and only agreed to buy after you were given the impression by the seller that indeed it worked, it is considered that you conditioned your purchase on the frying pan working. Even if you had not asked but the seller had told you at the outset unequivocally that the frying pan was in working condition it would be as if the frying pan working is a condition in the sale.
This ruling is based on Tosefos (BM 66A), which is ruled by the Ramo (207, 1)), that if a seller of a field informed his buyer at the outset that he will reimburse the buyer in case, due to a legal claim, the buyer loses the field, then indeed the seller is liable for such a loss. Even though this guarantee was not explicitly stated as a condition, nevertheless it has the legal status of a condition since it was stated at the outset. Since you asked at the outset whether the frying pan worked and the seller gave the impression that it did work, your purchase was conditioned on the frying pan being in working order.
Having determined that you are entitled to invalidate the sale we have to consider your second question, namely whether you can insist on returning the frying pan in case the seller offers to change the defective part and everything else is in working order. However, since this is a delicate issue which requires elaboration we will discuss it in the coming article Be’ezras Hashem.
In conclusion: We clarified that if the seller had not offered to repair the defect you are entitled to return the frying pan because you conditioned your purchase on the fact that the frying pan works.
Important addendum to last week’s article
We should point out that the entire article was based on the assumption that the widow really was the owner of the possessions that she brought into her second marriage. However, very often the property a widow brings into her second marriage does not belong to her but really belongs to her children. The reason is because in Torah law a wife does not inherit her husband. Rather, the children inherit their father. If the deceased wrote a halachically valid will giving the wife some or all of his possessions then she is the heir and the article applies. However, if the woman’s first husband did not write a halachically valid will, the possessions she brought into the second marriage from her first husband already and always really belong to her children. If she predeceases her second husband, her children and not her second husband already own those possessions.
