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
Part 1 of this article dealt with your first question and this part will be devoted to answering your second question, whether you may demand your money back if the seller offers to repair it.
In last week’s article we clarified that the sale is not classified a mekach to’us since you should have checked if the frying pan worked before paying for it. However, we determined that the sale is, nevertheless, not valid because you asked before paying whether it worked and the seller gave the impression that it worked. We deduced from Tosafos and the SA that therefore the sale was conditioned on the appliance being in working order. We will see in the present article that this differentiation is crucial in order to arriving at the correct answer to your second question.
We will first study whether a seller can prevent his sale from being nullified by repairing the defect in case the sale is a mekach to’us because the law in your case is derived from there. There are two rulings of the Rishonim that deal with this issue in the case of mekach to’us.
One is a responsum of the Rosh (96, 6) that is quoted by the Tur (CM 232). The Rosh was asked to rule in the case of Reuvain who sold a house to Shimon with the stipulation that Shimon will take possession after three months. Between the time of the contract and the time Shimon took possession, gentiles squatted in the house and dirtied some of the walls, and also removed some of the doors and windows. Shimon, the purchaser, wanted to void the sale since at the time of the consummation of the purchase the house was in damaged condition. But Reuvain, the seller, objected and offered to pay for the cost of the repairs.
The Rosh agreed with the seller. He states that his rationale was that since the contract said that Reuvain sold Shimon a specific house, and even in its damaged state the property is classified as a house, Reuvain did not violate the contract. Since the house just required repair and after the repair the house will return to its original state, it is sufficient for Reuvain to pay for the repair.
The second source is a responsum of the Ri Migash (res 51) that is cited by the Beis Yosef and Darkei Moshe in their notes on the Tur (CM 232). In this case Reuvain and Shimon exchanged houses. Shimon wanted to void the exchange since the house he received was damaged, but Reuvain objected and offered to repair the damages.
The Ri Migash ruled that who prevails depends on the nature of the damage. If the defect in the sale is from an external source and not in the object that was being sold, then the sale is valid. For example, if water from an external source entered the property, the seller can repair the damage and uphold the sale. However, if the house itself needed repair, e.g., a wall needed to be replaced, the receiver can void the sale. His argument is that since the new wall was not included in the original sale the seller cannot force the receiver to accept the house with a wall that was not part of the original sale.
Thus, it seems that there is a dispute between the Rosh and Ri Migash. The Rosh only requires that the house should still be called a house, whereas the Ri Migash requires that the house must not require any new parts. The difficulty with this is that the SA (232, 5) records the ruling of the Rosh, and the Ramo accepts the ruling of the SA and also adds the ruling of the Ri Migash. This indicates that the Ramo understood that the Rosh and Ri Migash are not in a dispute.
There are commentaries (e.g., the Ohr Someach, Mechiro 17, 9) who disagree with the Ramo and maintain that the Rosh and Ri Migash disagree. However, others also reconcile the two rulings. The Prisho (232, 5) limits the position of the Rosh to minor damages that are easy to repair. The Minchas Pitim, however, comments that the Ri Migash does not seem to differentiate if the damage is easy to repair or not, but rather if something new that is critical needs to be added.
The Aruch Hashulchan (232, 10) also reconciles the rulings of the Rosh and the Ri Migash. He understands that in the case of the Rosh the seller just stipulated that what he is selling is a house. Since even with the damages, what the buyer received is clearly considered a house, he is entitled to repair the damages. However, in the case of the Ri Migash the seller told the customer that the walls are intact. Therefore, if they are not, the seller cannot force the customer to accept the house. This explanation is also difficult because there is no indication in the Ri Migash’s words to justify the Aruch Hashulchan’s interpretation.
In your case, it seems that had the sale been classified a mekach to’us, since the part is inexpensive and people normally replace the part and the seller just said he is selling you a frying pan, according to most opinions the seller could have forced you to allow him to replace the rusty part and uphold the sale. However, we clarified last time that you cannot simply claim mekach to’us because you didn’t check if the frying pan worked, which you could have done easily. Therefore, this consideration is not relevant.
The reason we discussed the halacha concerning mekach to’us is because it is the source for the analysis of the halacha in your case, even though your case was not a mekach to’us. We learned in the previous article that even though the sale was not a mekach to’us you are entitled to cancel the sale because the seller clearly intimated in response to your question, that the frying pan was in working order. From the standpoint of the halacha this means that your purchase was contingent on the frying pan being in working order – and it was not in working order. Thus, your question is: if a sale is invalid because the seller failed to fulfill a condition, can the seller repair the object and thereby fulfill the condition?
The source for an answer to your question is a question of the Magen Avrohom that is based on the Rosh that was cited previously. The Gemoro (Pesachim 3A) rules that if someone rented an apartment for Pesach with the understanding that the owner did bedikas chametz but it turned out that he did not do so, the renter is not entitled to invalidate the sale on the grounds that the sale is a mekach to’us. The Gemoro says that the reason is because it is a mitzvo to check for chametz and people want to perform mitzvos. Therefore, we should assume that if the renter wants to cancel the rental it is not because it was not checked but for some other reason that is not a legitimate reason for canceling (e.g., he found something cheaper). The SA (Orach Chaim 437, 3) records the Gemoro’s ruling and brings an opinion that the owner has to reimburse the renter for the money he spends to hire someone to check for chametz.
The Magen Avrohom asks that since the owner has to pay for the checking in any case, why does the Gemara say that the reason the renter cannot void the rental is because we assume that people want to perform mitzvos? We could have used the Rosh’s ruling as a reason why the rental is not void, since if the owner pays for checking for chametz he rectifies the defect in the rental?
The Magen Avrohom answers that the Rosh’s ruling that the seller can prevent the cancellation of the agreement by rectifying the defect applies only to sales that were not conditioned on the absence of this specific flaw. However, in the case of the Gemoro the rental was conditioned on the house having been checked for chametz. Therefore, if it were not a mitzva to check for chametz, even if the owner fixes the house’s flaw by paying for checking the house, the renter can void the sale. That is why it was necessary for the Gemoro to say that the reason the renter could not cancel the rental is because it is a mitzva to check for chametz.
The Mekor Chaim (437, 7) clarifies that when the Magen Avrohom writes that in the case of the Gemoro the rental was conditioned on the house having been checked for chametz he does not mean that this condition was explicitly spelled out as a condition. He proves this contention because if a house is rented explicitly on condition that the house was checked, even though it is a mitzva to check the rental would be void. The reason is because in that situation, the renter clearly stated that he was not looking for mitzvas and was only interested in a checked apartment. Rather, the Magen Avrohom was discussing a person who was informed by the owner prior to the rental that the house was checked for chametz which renders the rental conditional on the house having been checked without the renter having stipulated this condition.
In your situation as well, we learned last time that the reason your purchase was conditional on the frying pan being in working condition is because you asked and were so informed by the seller. Thus, your situation has the same type of condition as the house of the Gemara and according to the Magen Avrohom, the Gemara teaches us that the owner cannot prevent the customer from voiding the agreement by rectifying the defect. Thus, we have derived that according to the Magen Avrohom you can refuse the seller’s offer to fix the defect and you can void the sale.
However, the Mekor Chaim proves from the Ramo that he disagrees with the Magen Avrohom and maintains that even when an agreement bears this type of condition the seller can rectify the defect.
The Mekor Chaim answers the Magen Avrohom’s question by differentiating between a defect that renders the object unusable and one that does not. He notes that one is not allowed to live on Pesach in a house that was not checked. Thus, since the house was unusable in the state it was given to the renter, the owner could not void the renter’s cancellation by paying for checking that house. According to this approach, you can also turn down the seller’s offer because the frying pan that you received was unusable.
Thus, according to the Magen Avrohom and the Mekor Chaim you can refuse the seller’s offer to repair the defect.
However, many poskim (Mogein Ho’elef, Ohr Someach, Minchas Pitim and others) disagree with the Mekor Chaim because they argue that in the case of the Rosh the house was not livable and yet the Rosh ruled that the seller can prevent the sale’s nullification by repairing the walls and windows. They suggest other approaches to answer the Magen Avrohom’s question. According to these poskim, the seller can prevent you from nullifying the sale by repairing the frying pan.
In conclusion: There are differing opinions if the seller can refuse to return your money by offering to replace the defective part. Thus, since the seller has your money, you cannot force him to return your money if he offers to repair the frying pan.
