Question
My wife bought a dress but after a few days she decided that she doesn’t really like the dress. There was nothing defective and the time that one is entitled to return merchandise already passed. Therefore, the store was under no obligation to take back the dress but my wife figured she’ll try anyway to return the dress. When she brought back the dress the storeowner said he would not refund her money but he was prepared to give her a certificate entitling her to choose a different dress which he would honor for the next two years. After a year my wife returned to the store to choose a dress. However, when she arrived there was a sign that the store will shortly close down and they were having a clearance sale. She looked over the stock but there was little left and she didn’t find anything that she liked. When she spoke to the storeowner, he told her that he only obligated himself to give her a dress from what he had in stock and if she can’t find anything suitable it is her problem. Is his argument correct?
Answer
Before answering your question, we will first clarify what legally transpired and then study what the law says about your situation.
The fact that the dress was not defective is very important because had it been defective you would have been entitled to return the dress and the storeowner would have been obligated to return cash and could not force you to accept a certificate. The reason is because if it was defective the sale would have been classified a mekach to’us-a sale that is based on false premises. When a sale is classified as a mekach to’us the sale is reversed retroactively and the goods revert to the seller since the sale never was valid and the money that was paid by the customer must be returned to him. In order to determine if the storeowner may pay with a certificate and not return cash, we need to determine the status of the money that was paid by the customer until it is returned to the customer.
The status of the money is a dispute among the Rishonim. The authoritative ruling of the Ramo (232, 22) is that the obligation that the storeowner has to the customer has the status of a loan since he is not required to return the exact coins that he received from his customer. Since a borrower of money must return money and not goods (See Tosafos BK 9A), when a customer returns a defective item, he can demand his money back and refuse to accept a certificate unless it is a known-custom or it was stated initially that money will not be returned even if the purchase was found to be defective.
However, in your situation the dress was not defective and the storeowner had no obligation to accept the dress and he was not obligated to give you anything. Therefore, when you and the storeowner agreed that you will return the dress in exchange for a certificate what you did was to sell the dress to the store and you agreed to accept a certificate as payment for the dress.
We now have to consider the legal nature of the certificate that you received. A certificate is not legal tender but obligates (or serves as proof of an obligation) the storeowner to give the bearer of the certificate (or just the original customer depending on what is written in the certificate), goods that he has in stock which are worth up to the amount that is written in the certificate. Thus, it is a shtar chov—a debt note with limited obligation since whereas a normal shtar chov entitles the bearer to collect anything that belongs to the debtor, the certificate only entitles the bearer to collect from the storeowner’s stock. Additionally, by stating at the outset that you are entitled to use the certificate for two years the storeowner limited the lifetime of the certificate to two years.
We find in the Gemara a concept of an obligation that can only be collected from specific items. The specific items from which the bearer can collect are known as an apotekey. Rashi (BK 11B) says that the word is an abbreviation for the Aramaic words that translate to-on this it will stand. The Mishna in Gittin (40B) discusses a case of a borrower who specified at the time the loan was extended that a particular slave of his will serve as the apotekey for payment for a loan and then the slaveowner freed his slave. (This is known as an apotekey mefurash and Tosafos (41A) states that this is the type of apotekey that the Gemoro is discussing.)
Since the only item that the lender had been obligated to give to his borrower was this particular slave, once the slave was freed the lender was no longer entitled to be repaid. Since it was the action of the slaveowner in freeing the slave that caused the lender’s inability to collect the loan, the slaveowner is called a mazik-one who damages another. Since the slave did not actually belong to his lender but was merely the object of the borrower that had been designated to serve as repayment for his debt, the damage that the slaveowner did to his lender is called mazik shebudo shel chaveiro-one who damages another person’s lien.
The Mishna that discusses this case states that whether the slaveowner is liable for the damages that he caused to his lender is a dispute between Rav Shimon ben Gamliel who maintains that he is liable and the Rabbonon who disagree. The Rishonim explain that their dispute is the general issue if one is liable for damaging a lien. The consensus of the Rishonim (Rambam and Rosh and according to our version, the Rif) and the ruling of the SA (CM 117, 6) is that the opinion of Rav Shimon ben Gamliel that the slaveowner is liable for the damages that he caused to his lender is authoritative. Tosafos and others write that these damages are causative damages that are classified as garmi.
Thus, we have determined that one is liable for damaging someone’s lien. It is important to note that the SA (CM 66, 23) rules that one is liable for damages even if his action was not motivated by a desire to cause harm.
In your situation, when the store paid you for the dress with a certificate the store limited its obligation to pay you to those goods that it had in stock whenever you chose to use the certificate and it was understood that the storeowner would keep the store properly stocked. If the store had returned money, you would have been able to use the money to purchase anything in the world. By contrast, by giving you a certificate the store limited your ability to collect payment for your dress to those items that it would have in stock within two years. Therefore, it would seem that when the store sold items and decided not to replace them by purchasing new stock, the store damaged your lien. Therefore, the storeowner is liable for having damaged your lien just like the slaveowner was liable for damaging his lender’s lien by freeing the slave. While it is true that the storeowner is closing his store for economic reasons, nevertheless, since you suffered a loss, you should be entitled to recoup your loss.
However, there is a similar situation that is discussed in the SA which seems to indicate that the storeowner is not liable. In order to understand the issue, it is necessary to introduce a law concerning the responsibility of heirs to pay their parent’s debts.
According to Torah law, the liability of children to pay their parent’s debts is limited to the immovable property (real estate) that they inherited from their parent. (The Geonim extended their liability to moveable property but this is not relevant in the case we will discuss.) Even if the heirs actually sell the property to another Jew the customer has to surrender the property to the parent’s creditors and the heirs must refund their customer for his loss.
The Rosh (res 79, 10) ruled that if heirs, whose father owed money to Jews, sold all the immovable property that they inherited from their father to gentiles, they do not owe any money to their father’s creditors in spite of the fact that the gentile customers will not surrender the property to their parents’ creditors. The Tur (CM 107) cites the Rosh’s ruling and asks why aren’t the heirs liable for the damage that they caused their father’s creditors by selling the property to gentiles who will not honor the parent’s debt, since they damaged the creditors’ lien. The Tur offers no defense for the Rosh’s ruling but out of respect for the Rosh who was his father he does not disagree. The SA (107, 4) cites both opinions without issuing a ruling.
Thus, perhaps the storeowner is not liable for having damaged your lien since he could cite the Rosh’s ruling in his defense.
However, in any case the Rosh’s ruling requires explanation since, as we learned, one is liable for damaging a person’s lien. The Nesivos (107, 6) explains that the Rosh’s rationale is that in principle the heirs did not damage the creditors since according to Torah law the gentile customers are obligated to surrender the land to the creditors and it is only because we can’t force the gentile customers to abide by Torah law that the creditors will in fact not be able to collect. He explains that for the damage that the heirs caused the creditors to be unable in practice to collect one is not liable. (He calls it garmi degarmi.).
If we follow the approach of the Nesivos, even the Rosh would agree in your case that the storeowner is liable because the people who bought his stock are not legally obligated to surrender their purchase to you. Therefore, even the Rosh would agree that the storeowner is liable for damaging your lien since the storeowner directly damaged your lien. Furthermore, the Shach (107, 8) and Gra (107, 20) rule against the Rosh. Thus, even though there are other approaches to understand the Rosh, it would certainly be proper for the storeowner to pay you.
It is important to clarify that the storeowner does not have to pay you the face value of the certificate since the certificate was not worth that amount and one only must pay for the sales value of the item that he damaged. Therefore, the amount that the storeowner should pay you is the sales value of the certificate when the store was fully stocked.
We should note briefly that perhaps there is a second approach to arrive at a ruling that the storeowner is required pay you. Some people understand that when a store issues a certificate it obligates itself monetarily to the bearer of the certificate to maintain stock that will enable it to honor its obligation. Therefore, in your case the storeowner obligated himself to maintain stock for two years. If this is the way people understand the nature of a certificate, the store has to honor its obligation and either bring stock or pay you (the much cheaper alternative) the sales value of the certificate because it is required to honor its obligation.
In conclusion: There are strong reasons why the storeowner must pay you the sales value of your certificate when the store was fully stocked.
