Question
I went to a store and asked for a nussach Ashkenaz machzor. The storekeeper said he doesn't have any in his store but he has in storage. He then went to his storage and brought me a machzor which he placed in front of me. I paid him for the machzor and for engraving my name. A while later I picked up the machzor. When yom tov came I was dismayed to see that the machzor was nussach Sefard. Am I entitled to return the machzor as a mekach to'us?
Answer
At first glance since you asked for nussach Ashkenaz and received Sefard the sale seems to be mekach to'us. However, there are two laws concerning mekach to'us that are relevant. One is that you were given the machzor and could easily have noticed that it was Sefard before your name was engraved. The second is that when one claims a mekach to'us he must return the object to the seller to recover his payment which you cannot do since your name is engraved and the machzor is worthless to the seller.
The basic rule governing the time limitation for returning a defective purchase is set down by the Rambam (Mechiro 15, 3) who is cited verbatim by SA (CM 232, 3). The Rambam writes that even if years have elapsed since the purchase, the customer is entitled to return the defective object if he had not noticed the defect previously. However, if the customer used the object after he became aware of the defect, he may no longer return his purchase. By virtue of his use, he waived his right of return. Since you did not use the machzorim after you noticed the defect you seem to be within this limit.
However, there is a comment of the Magid Mishna (ibid) that is recorded undisputed by the Sema (232, 10) that seems to pose a problem. (The Magid Mishna does not indicate if he agrees with this opinion or not.) The Magid Mishne says that there is an (unidentified) opinion that even if the customer did not notice the defect but if he could have noticed it by trying it out and he did not do so, he may no longer return it. There is a major controversy (See Mishpatei Yosher volume 1 mekach to'us chapter 3) among the Poskim whether this opinion is authoritative or not. Since you already paid for the machzorim, you will not be able to demand the return of your money if this case falls into the category of defects that the Magid Mishna's comment applies to.
In order to determine whether the Magid Mishna's comment applies to your situation, we must understand the rationale of his opinion. The Mishna Lamelech (ibid), the Maharshdam (CM 385) and others understand that the rationale is that since the customer did not bother to check whether his purchase was defective, it indicates that he did not really mind the defect and was willing to accept his purchase even with this defect. Thus, even if we believe the customer when he says that he was unaware of the defect, nevertheless, he will not be entitled to cancel his purchase because we do not believe that the defect is the reason that he wishes to cancel the sale since he earlier showed that this defect is not a critical factor for him.
Based on this rationale, there are several reasons that the Magid Mishna's comment does not apply in your situation. Two reasons are based on a ruling of the Maharshdam (CM 385). In the din Torah that he was asked to decide, A approached B to sell him a supply of paper of a certain type which he planned to take to Salonica. B told A that he did not then have any of this type of paper but he can see a sample by C and if he is happy with it, he will sell him the same type. A checked out the paper by C and subsequently placed an order with B. B supplied A with paper that he took to Salonica. After two years, A opened up his purchase in Salonica and discovered that the paper he received from B was not similar to what he had seen by C. B agreed that it was not the same, but he argued that since so much time had elapsed since A received the paper, the type of paper was not critical for him and therefore, based on the comment of the Magid Mishne, A could not return it.
The Maharshdam ruled in favor of A. He claimed that even the opinion that is cited by the Magid Mishne would agree that in this particular situation A may still cancel his purchase on the grounds of mekach to'us even though he could have checked his purchase immediately upon receipt. One reason this case was different is because the entire reason the opinion in the Magid ruled that the customer could not cancel the sale is because by failing to investigate his purchase he showed that the defect was not critical. But here it was clear that the defect was critical for A since he asked to see a sample and then checked out the specimen. Thus, we learn that even though failure to check for the presence of a defect is somewhat of an indication that the defect is not critical for the customer, it can be offset by other indications that show that it is critical.
A second reason the Maharshdam gave for allowing A to cancel his purchase is because he had been told explicitly by the seller that he will supply him with the same type of paper as the one he saw by C. Therefore, he felt that he could rely on B that the paper was indeed the same. Thus, we see that he ruled that the comment of the Magid Mishne does not apply to sales where the seller gave his word that the defect was not present. Many later poskim including the Knesses Hagedolo (232, comments on Beis Yosef 5, 7) ruled in their responsa like this argument of the Maharshdam. (Many are cited on page 420 of the Mishpatei Yosher.)
In your case, you had the implicit assurance of the storekeeper that he was bringing you a nussach Ashkenaz machzor because he expressly told you that he was going to his warehouse in order to bring you Ashkenaz and he gave you the machzor on his return. Therefore, you can justify your failure to look at the machzor because you could have reasonably assumed that he brought you Ashkenaz.
Besides this it is unreasonable to assume that you did not care if the machzor was Ashkenaz or Sefard for many reasons. First, if you did not care, why did you ask the storekeeper to go to his storage when you could have saved your time and his effort by just taking the Sefard from his store? Second, since Ashkenaz is available, why should you accept Sefard? Third, people who daven Ashkenaz do not use a Sefard machzor since they would be missing part of the davening. To one who davens Ashkenaz a Sefard machozor is like a machzor with pages torn out.
Besides all the above, it could be that the comment of the Magid Mishne does not apply to your case. The Rambam and the comment of the Magid are referring to a sale of a defective object that is a mekach to'us which grants the customer the right to nullify the sale if he wishes. However, a Sefard mahzor is not defective. While its sale can be nullified by one who ordered Ashkenaz as a mekach to'us, the reason is not because it is defective but because it is a different product and the customer never received what he ordered.
The basis for this differentiation is a Mishna (BB 83B). The Mishna says there are four categories of sales where the seller did not give the customer what he ordered. One category is where a person contracted to supply good quality wheat but was supplied with poor quality wheat. The law here is that only the customer can nullify the sale if he wishes. The seller cannot, because only the customer was cheated. However, if the customer ordered red wheat and received white wheat, both the seller and the customer can nullify the sale because red wheat and white wheat are two different kinds of wheat. The distinguishing feature, explains the Rashbam, is that some prefer white wheat and some prefer red wheat whereas in the case of bad quality wheat no one inherently prefers the inferior quality.
Similarly, some prefer Ashkenaz and some prefer Sefard. Therefore, the reason the sale can be nullified is because the customer never received what he ordered and if he would have wanted, your storekeeper could have nullified the sale as well even if you had changed your mind and decided you wanted the Sefard machzor. It is plausible that the comment of the Magid Mishne does not apply to one who received a different product because what is needed is not waiver of a defect but to establish a sale where there was none until that point. Therefore, it could be that not bothering to check what one received is not sufficient to establish a sale. Support for this contention can be brought from the Machane Efraim (Glosses on the Rambam, Mechiro 15, 3) who is undecided if a customer who received the wrong object forfeits his right to undo the purchase by using the object he purchased.
Even if this differentiation is not correct, based on the previous reasons the comment of the Magid Mishna cannot serve as a basis for disallowing a claim of mekach to'us on your part.
Having established that even though you could have known that the machzor was Sefard, you nevertheless retained the right to reverse the sale, we must consider whether by having your name engraved you forfeited this right since one who reverses a sale on the grounds of a claim of mekach to'us must return his purchase in order to recover his payment.
This issue can be decided from a ruling of the Gemara (BB 93B) that is codified by SA (232, 20). In the case that they discuss, a person purchased seed and sowed the seed but the seeds did not germinate. The Gemara rules that even though the customer cannot return the seeds he nevertheless may reverse the sale on the grounds of it being a mekach to'us since the seller was aware that the customer was going to plant the seed. Based on this ruling, the Pischei Choshen (Geneivo 13, note 28) rules that if one purchases a sefer and later discovers that there is a defect he may return the sefer even if he wrote his name in the sefer since this is a normal action of a customer. In your case, the seller was not only aware that you were going to engrave your name but he actually arranged for the engraving. Therefore, you certainly are entitled to return the machzor even though the seller will not be able to do anything with the machzor.
In conclusion: You are entitled to return the machzor even though you could have realized that the machzor was Sefard and even though you had your name engraved on it.
