Question
I recently bought a suit from a store in Tel Aviv. When I picked it up from the shatnez laboratory they said it had shatnez in many places and it wasn’t worthwhile to remove all the shatnez. At my request they closed everything up so that the suit looked brand new. I returned to the store and told the owner that I wish to return it and explained why. The owner is a traditional Jew who didn’t know anything about shatnez but since he respects the Torah, he agreed that if the Torah obligates him to accept the suit he will take it back, and if not I have to take it. Most of his customers are irreligious Jews who unfortunately are not concerned about shatnez. My question is if he is required to accept the return.
Answer
The reason you may be entitled to return the suit is that perhaps the sale is classified as a mekach to’us-a sale based on inaccurate information. Thus, we must study those laws.
The basis for mekach to’us is that people do not want to buy defective items. (The Gemara (Kesubos 72B) states this concerning marrying a wife.) Therefore, even if a person does not stipulate at the time of his purchase that he is buying the item only if it is not defective, that is inherently a condition.
The Shulchan Aruch (CM 232, 6) rules that what is considered a significant defect is determined by custom. Only if people customarily return items that are found to have a particular defect, does the customer have the right to return an object that has this particular defect.
It is important for our situation to note who determines what is customary. The Chinuch Beis Yehuda (res. 108) ruled concerning horse traders that custom is determined by all of the local horse traders including the gentile traders, since Jews do not have any special custom. However, if a defect does not concern gentiles, we do not include the gentile population in the population that determines the local custom. For example, if the defect was that an animal is a treifo, since gentiles are not concerned about this defect their behavior has no bearing on what is considered local custom.
In your situation the seller and you belong to two different classes of people. The seller and the majority of his customers are not concerned about shatnez. However, you belong to a different group, the group of religious Jews who are concerned about shatnez. Among these people it is customary to return items that have this particular defect. Moreover, even among the general population, people return items that are not usable. Therefore, the fact that you wish to return a suit that is not usable for you is normal behavior.
However, your question is whether you have the right to force the seller who was unaware of this issue and does not belong to your group, to allow you to return the suit.
We note that the right of a customer to return a purchase is not because the seller did anything improper but just because people do not want to spend their money on defective items. For example, if an animal is found to be a treifo, even though there is no way for the seller to have known this before the animal was slaughtered, nevertheless, the Gemara (Chulin 50B, ruled by SA CM 232, 11) rules that the customer has the right to force the seller to refund his money on the grounds that the sale constitutes a mekach to’us where it was obvious that the customer bought the animal in order to eat the meat, which it turned out that he cannot do.
Returning to our question, it seems that even if the seller was unaware of the customer’s needs, the customer has the right to return his purchase since the rationale for canceling sales that are a mekach to’us is that the customer never intends to buy a defective object. Therefore, the fact that the seller was unaware of the customer’s desires has no bearing when deciding whether a particular sale is classified as a mekach to’us. The only determinant is, according to this, the customer’s intention.
However, some Rishonim seem to maintain that the intention of the seller is the determinant.
The case that is discussed by the Gemara (BB 92A) where there are two groups of customers is where some people buy oxen in order to slaughter them and others buy them in order to plow their fields. In the case of the Gemara a person bought an ox and then, when the customer discovered that the ox was wild and not fit for use to plow his field, he asked to void the sale. The seller countered that he sold the ox in order to be slaughtered, for which the animal was suitable. The Gemara says that if the customer is a person who only buys oxen in order to plow his field, then the customer can force the seller to void the sale.
This seems to indicate that the determinant is the intention of the customer and indeed many Rishonim (e.g., the Ri Migash, Ritvo, Hashlomo, Meiri) understand the Gemara in this manner.
However, the Rashbam disagrees with these Rishonim and understands that the Gemoro limits the customer’s right to cancel the sale if his practice is to only buy animals for ploughing, to situations where this custom. This implies that if the seller is unaware of the customer’s custom, the customer may not void the sale even if he can prove that he only bought oxen in order to plow his field. This seems to indicate that it is the seller’s intention that is determinant. It is important to note that the Shulchan Aruch (CM 232, 23) follows the approach of the Rashbam. (See the Gra note 38 and Nesivos (note 35).)
However, many (e.g., Pilpula Charifta BK 5, note 2, Beis Meir res 16) explain that the reason the Rashbam conditions the customer’s ability to void the sale on the seller’s awareness of the customer’s custom is because, since there are two possible uses for oxen, if the customer really only wanted to use the ox to plow, he should have informed the seller of his custom since otherwise the seller might assume that he wanted to buy the ox for slaughtering. If one follows this understanding, even the Rashbam maintains that the buyer’s intention is the determinant. It is only that failure by the customer to inform the seller evinces lack of particularness on the part of the customer.
Moreover, the reason why it was necessary, according to the Rashbam, for the customer to inform the seller of his intention does not apply in your case since there is only one use for a suit, and thus it was clear to the seller that you were buying the suit in order to be able to wear it. There is nothing that he did or did not do because you failed to inform him that you do not wear shatnez. Therefore, even the Rashbam agrees that there is nothing amiss with your failure to alert the seller that you do not wear shatnez and you have the right to cancel the sale according to him.
Your case is comparable to one who buys an animal that is determined after slaughtering to be a treifo where, as we mentioned above, the customer is entitled to void the sale because he cannot eat the animal. In that case the poskim do not condition the customer’s ability to void the sale on the seller’s observance or awareness of Torah law. The reason is because it was clear that the customer bought the animal in order to eat its meat, which he was not able to do when animal was found to be a treifo.
There is one more case that is discussed by the SA that sheds light on your question. The Terumas Hadeshen (1, 322) discusses a person who requested better quality meat but received meat of lower quality. The Terumas Hadeshen rules that the customer cannot void the sale as a mekach to’us because the difference in quality is not sufficiently significant. However, he says, if it is known that the customer is unusually particular and never eats the lower quality meat then he is entitled to cancel the sale. The expression used by the Terumas Hadeshen indicates that it suffices that the customer’s behavior is known and it is not required that it be known to the seller. This would again indicate that the customer’s needs alone determine if a sale constitutes a mekach to’us.
We note however, that even though the expression used by the Terumas Hadeshen indicates that he does not require that the seller be aware of his customer’s specific behavior, the Nesivos (chiddushim 233, 6) has a doubt whether the Rashbam cited earlier would require that the seller be aware of the customer’s behavior in order to allow the customer to cancel the sale.
Nevertheless, as before, even if in the case of the Terumas Hadeshen we require the seller to be made aware of the customer’s particularity in order to allow the customer to negate the sale, it has no bearing on your situation. The reason is the same reason as before. In the case of the meat one can fault the customer for failing to inform the seller of his idiosyncrasies in order to ensure that he receive the quality that he desired, especially in light of the fact that he was different from the norm. However, in your case there is nothing that the seller would have done differently had you informed him that you don’t wear shatnez since he was not aware that any of his suits contained it.
We note that Rav Mordechai Gross wrote (Teil Talpiot 68, page 71) that he posed your question to Rav Eliashev zatsal, and he ruled that the customer may cancel the sale as a mekach to’us even though the seller was not religious.
In conclusion: According to Jewish law you are entitled to return the suit to the store and have your money fully refunded.
