Defects in Merchandise Part 1 - Rabbi Yisrael Meatuf shlita

00:02 Speaker 1 You’re listening to “Lema’an Yishme’u,” a podcast from the Chabad Halacha Institute.

00:08 Speaker 2 That alone isn’t called [unclear]. Here’s an example of creating a false impression: concealing defects, withholding information. That’s an example of what’s forbidden. And here’s an example of what’s permitted: making an item look nicer when everyone knows what it is and can inspect it. In short, all sorts of examples like that. That’s all from the seller’s side: what does he need to do before he sells? The question now is what happens afterward, if he didn’t act properly—or if he did act properly but didn’t know there were problems with his product, and problems were discovered. This is a very, very broad subject. As we’ll see shortly, I’ve divided the subject of defects in a product into seven parts. We’ll work a little differently: we’ll take particular cases and, through them, gradually cover all the details. Because trying to learn the details straight through, like sections of the Shulchan Aruch, gets complicated and difficult, and a little boring too. I’ll take cases, and through them we’ll gradually touch on the various points. There are a few more examples here from what we learned about a seller trying to persuade a buyer to buy—things that are permitted and things that are forbidden. We won’t go through them now; this is just a general reminder. So what are we learning today? Pay attention: we’re about to see all seven topics and their details, but that doesn’t mean we’ll learn all of them. You can’t learn all this in one day. We’ll highlight a few things from among them and learn those. Seven topics, very briefly. Here’s an initial overview. First, what do you do before selling a product when one of the parties wants to be sure where he stands? What do I mean? Say a seller wants to sell a product and doesn’t want the buyer coming back later with

02:22 Speaker 2 all sorts of complaints: “This was wrong, that was wrong.” What should he do? Or the reverse: someone buying a product wants to be sure he gets exactly what he wanted, in the colors he wanted, without a scratch or anything else. How should he make that clear? The second topic is inspection. Someone buys a product. He can inspect it thoroughly, he can just give it a quick look, or he can buy it sight unseen. What kind of inspection is he required to do so that afterward they won’t tell him, “Listen, you saw it, you took it, you didn’t check it—that’s your problem”? I’ll give a common example: someone buys a car without taking it to an inspection center. Or there’s the option of checking before buying a car whether there’s a lien on it, and the seller tells the buyer, “Trust me, there’s no lien.” So he skips the check and eventually discovers there is a lien. We certainly understand that this is a mistaken purchase. But what if, for example, they didn’t discuss it at all and the buyer didn’t check? Could the seller tell him, “I saw you didn’t check. Clearly it didn’t matter to you, so I sold it to you”? That’s a topic in its own right. The third topic, which we will address today, is using the item. I found a defect after buying it—the example we mentioned in the messages. Someone buys a book. He doesn’t even need it yet, but he’s so excited that he writes his name in it. Then he starts turning the pages and sees that pages are missing or torn, or there are all sorts of other problems. Now he comes to the seller to return it, and the seller says, “Why did you write your name in it?” So where’s the line? When does using something mean there’s no going back,

04:26 Speaker 2 that’s it, you can’t return it anymore? And when is it still okay to return it even though you’ve used it? Also, am I even allowed to keep using it? I’ve just found a problem, and I want to continue using it. Am I allowed to or not? There are two questions: is it permitted or forbidden, and if I did use it, have I lost the option to return it? As we said, we will learn that today. The fourth topic is the buyer’s demands. I found a defect, a problem. There are four things I could ask of the seller, and the question is which requests are accepted and which are not. The four possibilities are: one, tell him to take it back; two, ask him for another one instead, an exchange; three, tell him to leave it with me but compensate me for the defect; four, have him repair it. Usually it’s not the buyer who asks for that—the seller offers it. The seller says, “What do you care? I’ll fix it for you.” The question is, of these four possibilities, what does halacha say we actually do? The fifth topic is the time limit for a return. Someone buys a product. He’s an organized person; already in Cheshvan he’s taking care of his Pesach kitchen. He buys all the electrical appliances for Pesach, puts them in storage, and they’re without a warranty. Never mind that the law says there is a warranty; theoretically, let’s say there isn’t. Pesach arrives, he opens the boxes, and he finds all sorts of problems. The seller tells him, “Listen, you’ve come too late. What do you want?” Here’s another example, which actually happened to me. In principle there’s a one-year warranty; I’m talking about a hypothetical case with no warranty. I bought a secondhand set of the Tur and Shulchan Aruch from someone. What do I mean by secondhand? He’d bought it, and it had sat in boxes at his place; he hadn’t used it. I don’t know how long

06:33 Speaker 2 he’d had it. It had been with him for years. I specifically wanted the older edition. There’s an older edition you can no longer get in stores, and I wanted that one because I was used to its page layout. I bought it from him, but I didn’t have a bookcase yet, so I’d take out one volume here and another there, using whichever one I needed. At some point I took out all the books to put them on the shelves, and I saw that two volumes were duplicates and one was missing. That problem had certainly been there from the beginning. So whom do I approach now? The person who sold it to me? Can he go back to the store? Where’s the limit? A lot of time has passed. One more example, which someone asked me about recently: a person brought in the parchment sections of his tefillin, sent them for inspection, and the ink had flaked off. The ink had flaked off in various places, and he then complained to the sofer. He said, “There’s a—” Now, we’re talking about several years. Does a sofer sell tefillin with a lifetime warranty? How long does his responsibility— They hadn’t agreed on any warranty.

07:38 Speaker 3 What’s the limit of his responsibility?

07:39 Speaker 2 Yes.

07:41 Speaker 3 It could also be that he kept the tefillin somewhere that—

07:44 Speaker 2 Right, right, that’s part of the discussion. Yes, was the problem definitely there from the beginning? Right. Right, right. In his case, the tefillin had been in the car, but he argued that they’d been in the car many times before and nothing had happened. In fact, all those times had apparently contributed to the process. The sixth topic is: what counts as a defect? Does every scratch, every little thing, count as a defect? What’s the rule? We’ll touch on that a little today too. And the seventh topic is the refund. He returns the product, and I give him his money back. What about the original shipping cost? What about the cost of shipping the item back to him now? What about the cost of shipping the next item I send him? What about all sorts of expenses he incurred because of this problem? In short, what about the effort involved? Who has to do the work? Who is supposed to take the trouble of returning it now? Do I tell the seller, “Come to my house; it’s here,” or am I supposed to go back to him? That’s the seventh topic. Now, as you can see, each one has its details, and today we’ll touch on four points. Okay. We have four topics here. Using the item: first, am I allowed to use it after finding a problem? Say I even bought a car and found a problem with it. Again, whether it can be repaired or not—it’s a little hard to discuss one case without getting into the others, but we’ll try to separate them somehow. Now I know I’m going to return it to its owner; I’m not going to keep it. Am I allowed to continue using it? And if I do use it, does that count as waiving my claim? And what counts as a defect? Two details. An expiration date: I bought something whose expiration date is in two weeks or a month, but it went bad before then. How does that work?

09:47 Speaker 4 If it was on sale, and that’s why, uh...

09:50 Speaker 2 So it had a short time before its expiration date.

09:52 Speaker 4 Yes.

09:52 Speaker 2 A short shelf life, and an expired shelf life. Look, it’s obvious to us that if I bought something with another month before it expired and it went bad after two weeks, that’s a problem. Right? But we’ll soon see what the halachic source for that is. And then there’s the question of when the defect was discovered. That’s what we were talking about: when you find a defect, you don’t know exactly when it arose. You buy—someone bought a car, and a few days later the engine went. Does he return it or not? Do they tell him, “That’s your problem,” or does he say, “You sold me something defective”? Let’s start with the first topic: Is it permitted or forbidden to use the item? We have three points here. First, pay attention—I don’t know if you thought of it from this angle. There’s an issue here of avak ribbis, a rabbinic form of interest. The halachic authorities disagree about whether this is actual interest or avak ribbis. Do you later have to pay for the use because it’s interest, or is it only avak ribbis? What’s the issue of interest here? You buy something and cancel the sale. What actually happens? The money is returned. Now, the seller had the money. You bought it on Rosh Chodesh Cheshvan and returned the item on Rosh Chodesh Kislev. For that whole month, the money was with him as a loan. Now, you bought an item and returned it to him. Fine, okay, you lent him money; that’s all right. But if you used the item throughout that month, why were you using it? In exchange for what? In exchange for the money you gave him at the beginning. That money is going to come back to you, because you’re now canceling the sale. In other words—

11:44 Speaker 4 Another item of the same kind.

11:44 Speaker 2 A different item is already a new sale. That’s straightforward.

11:46 Speaker 4 So he gives me the other item instead?

11:49 Speaker 2 No, I’ll tell you: if he replaces it with another item, then he’s effectively paying for the new item now. You’re saying the money never actually went back to him. That’s a good question. Let’s put it this way and get a little ahead of ourselves: halachah doesn’t discuss replacement. Halachah discusses returns. There’s a defect, so you return it. If you then want to sell him something else, go ahead.

12:13 Speaker 4 Oh, and does he have to provide him with another one in its place?

12:15 Speaker 2 That’s with rentals, not with a sale. Rentals. Now, today, because of customary practice, everything follows the local custom. The custom is that when a person finds a flaw or defect, the item is replaced. Because of that custom, the seller and buyer are indeed obligated to make the exchange. If the seller has one in stock and it isn’t complicated, it does obligate them. So, as I see it now, the straightforward way to understand it is as a refund followed by a new purchase. It’s as though the money was a loan and was returned, and then there was a new purchase. And you used the item all that time. Why did you use it? There’s an interest issue here. Now, let’s say most halachic authorities hold that it isn’t actual interest; it’s avak ribbis. So for the use up until you discovered the defect, you don’t have to pay back avak ribbis retroactively. We’ll soon see that there may be another reason to pay for it, but on account of avak ribbis, you don’t have to. Going forward, though, once you’ve found the defect, you may not knowingly create a situation of avak ribbis. It’s only after the fact that avak ribbis isn’t paid back. You may not enter into it in the first place. So, on the face of it, if a person wants to use an item in which he found a defect, note that even if the seller agrees, there’s still the problem of avak ribbis. That’s how it comes out. In a moment we’ll mention a possible basis for permitting it. The second issue is taking what belongs to someone else. We spoke about this in the first classes. Using someone else’s property without their knowledge is called... someone who borrows without permission is considered to have taken it unlawfully. The seller let you use the item because he thought you were buying it. Once it becomes clear that the sale has been canceled and the item is supposed to go back to him, who says he agrees to your using it? Ask him. So that issue makes it forbidden if he doesn’t know. It depends on whether he knows. But the issue of avak ribbis means that even if he does know,

14:17 Speaker 2 it doesn’t help. What would make it permissible to use it? On the face of it—and this is my own thought; I haven’t seen it written in the halachic authorities, but it makes a great deal of sense—if it’s compensation. The seller tells you, “Listen, I sold you something defective. We can try to return it, but this has caused you distress.” Usually, it does cause distress. “As compensation, I’m letting you use it; all the use you get from it is compensation for that distress.” In that situation, it’s no longer connected to the loan at all. It’s compensation for the distress.

14:52 Speaker 4 What’s the issue with taking what belongs to someone else? Could you go over that again?

14:55 Speaker 2 If someone sees another person’s item and hasn’t asked whether he may use it, he’s not allowed to use it, unless he knows the owner doesn’t mind. We spoke at length about the difference between use that causes a loss and use that doesn’t, but even when it causes no loss, you need his consent or a reasonable basis to assume he consents. Here, you don’t know whether the seller agrees to your continuing to use it. All of that is about whether I may use it in the first place. Now what happens? I didn’t ask myself; I didn’t know whether it was permitted or forbidden, and I used it. After I’ve used it. Here’s the example of a car: a person buys a car and drives to Tel Aviv. He discovers a problem with the car that makes him not want it; he wants to return it to the seller. That’s more common with a used car, but it can happen with a new car too. Things happen. Is he now allowed to drive home from there? Or if he discovered the problem at home, may he make a few more trips before returning it? As for whether it’s permitted or forbidden, we said earlier that in principle it’s forbidden. Now—

16:06 Speaker 4 He’s not allowed to use it.

16:08 Speaker 2 In principle, he’s not allowed to use it there, unless the seller agrees to let him use it as compensation. In principle, it’s forbidden. We haven’t discussed the case where he’s now in Tel Aviv and wants to get home. That’s a slightly different issue; we’ll discuss it in a moment.

16:19 Speaker 4 New things he wants to do.

16:21 Speaker 2 What?

16:22 Speaker 4 Those are new things he wants to do.

16:24 Speaker 2 New things, yes. So in general, halachah says that if a person finds a defect—in halachah, every flaw is called a mum, a defect—then using the item constitutes waiving his claim. In other words, the moment you find a defect in an item, you’re supposed to stop using it. It isn’t yours. If you use it, that indicates that you’ve told yourself, “Fine, I don’t mind that it has this defect.” You’re effectively showing... Why are you using it? Because it’s yours. By using it after finding the defect, you’re showing that you agree to keep it permanently. But what if you have no choice? The halachic authorities address this explicitly. Pischei Teshuvah cites several authorities. A person is stranded, as we said earlier, in Tel Aviv, in Tzfas, or somewhere else, and he has to get home. Today, that’s a bit different: take a taxi, use public transportation, whatever. But in the middle of the night, it’s certainly a case you’d consider a necessity. In that situation, driving home doesn’t constitute waiving his claim, because he simply has to get home. Now, it would seem that what we said earlier about an issue of interest, of avak ribbis, doesn’t apply in this situation either. Why? As we said earlier, if the seller tells you, “Take this as compensation for the distress,” it isn’t considered interest. It isn’t something he’s simply giving you as a gift; it’s compensation for the harm. The same applies here. Someone sells you an item, a car with a problem—whether or not he knew about it—and because of that problem you’re now stranded in another city. He caused the problem for you. He’s obligated to come up with a solution. That isn’t interest; it isn’t some gift he’s giving you because of the loan you made. There’s a problem he

18:24 Speaker 2 created, and he’s supposed to solve it. So if a person ends up in a situation where he has no choice but to use the item, he may do so. Not only is he allowed to use it, but afterward they also can’t tell him, “You waived your claim,” because he used it out of necessity. Now, I saw an example in one of the books. Tell me what you think of it; I’m not sure it’s quite accurate. Someone bought an electrical appliance—I don’t know, a beater for making a cake, a mixer, or something—and now, late at night, he urgently needs to use it. He discovers a defect, and the stores are closed. That halachic authority wanted to say that this too is considered a case of necessity. That’s a question. I think it’s a bit of a gray area. Is that a necessity? Then don’t make a cake.

19:20 Speaker 4 But he bought merchandise.

19:22 Speaker 2 Yes, I think that, strictly speaking, this isn’t called a necessity, but it’s an example brought in the halachic rulings. One last topic, after an announcement. The halachic authorities disagree about a case where the buyer has already called the seller and told him, “I’m going to return the item,” and then continues using it. Now, there’s no question that continuing to use it is wrong. But has he waived his right to return it? The buyer says, “Of course I haven’t. I explicitly called him and told him I want to return it. How is that waiving anything?” So some authorities do say that this isn’t considered a waiver. Then what was his use of it? Theft. He used it unlawfully. He was wrong, and we might even yell at him, but the… his use did not constitute a waiver.

20:14 Speaker 4 Even if he doesn’t diminish its value at all, the…

20:17 Speaker 2 If he doesn’t diminish its value. First of all, that he doesn’t diminish its value.

20:20 Speaker 4 There are many aspects to it; it’s the custom. In other words, that’s something else that shows that regarding [unclear], you tell him to change it, and now I’ll make you…

20:33 Speaker 2 You can’t call that a custom. There’s a general principle—perhaps this is an opportunity to mention it. Choshen Mishpat is full, full, full of laws. Now, after you study all of Choshen Mishpat, you come to dina demalchusa dina, the law of the land, outside Israel. In Israel, there’s the law, and there are the halachic authorities. Then comes the prevailing local custom, and on the face of it, I could seemingly close Choshen Mishpat and just do whatever people customarily do. There’s a custom. So what’s the difference? A prevailing local custom has to be something that happens frequently. Because it happens frequently, the custom comes along and overrides what is written in halachah. Why? Because everyone knows that this is how things are done, and when someone enters into the transaction, it’s as if he stipulated that. Any condition concerning monetary matters is valid. In other words, I come into a store, and I know that stores give you fourteen days to return a product. That’s common. Everyone is familiar with it; everyone knows. When I made the purchase, the seller and I effectively agreed with each other that there would be a fourteen-day return period. But things that don’t happen very often and aren’t… aren’t common at all—you can’t call that a custom. Once there’s no custom, what’s written in halachah is what applies. Now, this point—

21:47 Speaker 4 Reasoning.

21:48 Speaker 2 Reasoning. Exactly. Reasoning isn’t a custom, let’s put it that way.

21:54 Speaker 4 It doesn’t make sense that because it’s defective, I, I…

21:56 Speaker 2 There’s what the Torah says. Not everything fits our logic right now. It may be that circumstances really have changed somewhat, and commerce has changed. But if I… did I enter into the transaction with that understanding or not? When it’s something clear, people really do take it into account from the outset, but this isn’t so clear. Listen, the item is defective. You want to return it. Why are you using it? With a car, for instance, it’s clear to everyone: I got stranded; I have to get back.

22:31 Speaker 4 It also depends very much on whether it’s before the first use or after the first use—whether it’s already out of its original wrapping.

22:38 Speaker 2 Yes. If you discover a defect and then start using it, that is certainly a complete waiver. In other words, you opened the box, saw the problem, and then used it for the first time—that makes the point even stronger. By the way, what did the person who bought the whisk today do yesterday without a whisk? In other words, he has something new that he just bought. He had one yesterday, and it broke yesterday, and he happened to buy this one today. All right, that’s why I said it’s a gray area. Now let’s move to the third and fourth topics, really. A person finds a defect after some time and doesn’t know when it actually occurred. Who bears the responsibility, the seller or the buyer? We’ll read three sources in the Shulchan Aruch that seemingly contradict one another, and then see what the rule is. We won’t read all of it, just a sample from the text. Someone sells an animal to another person for slaughter. He slaughters it, and it turns out to be a treifah. This is in siman 224. If it is known for certain that it was a treifah when he bought it—I’m giving an example here—if he bought it within three days, the sale is considered a mistaken transaction, and the money must be returned. Here you have an animal that’s slaughtered, and they see that it’s a treifah. First of all, nowadays that’s difficult—

24:03 Speaker 4 You can’t know.

24:04 Speaker 2 You can’t know. You can’t know.

24:04 Speaker 4 Anything could happen.

24:06 Speaker 2 You can’t know beforehand. Now, halachah has examples where you can’t know beforehand, such as an animal that is slaughtered and found to be a treifah, or seeds that you buy and plant in the ground but that don’t grow. Halachah says the purchase can be reversed even though there was no way to know. The purchase is reversed. Why? Because I paid money for a defective product. So, true, you didn’t know, but it turned out that if you had done an X-ray…

24:33 Speaker 4 Someone who sells animals, or any importer—every importer will also receive some animals with minor defects.

24:38 Speaker 2 And essentially…

24:39 Speaker 4 A method, huh? Each person according to his own method.

24:41 Speaker 2 Let’s take an example, just another, extreme example. A person buys electrical appliances somewhere, and the custom is…

24:49 Speaker 4 Electrical appliances, he has—

24:50 Speaker 2 Wait, wait, I need to—

24:50 Speaker 4 He comes to the store, and there are, there are stones.

24:52 Speaker 2 Yes, right. I just want to take it to an extreme. The custom is that some of the boxes have electrical appliances inside and some have stones inside. That’s the custom. I’m just exaggerating it to make the point. And they don’t open the product; they don’t open the box. They sell it like that. You buy one and find stones inside. What would you say?

25:11 Speaker 4 Like they sell products in the U.S. A nice box, and off you go—what’s inside doesn’t…

25:16 Speaker 2 I mean, as a buyer, the treifah animal is worth nothing to me. You sold it to me. Now, I didn’t cause this. It isn’t an animal that became a neveilah during slaughter. It was like this from the start. It doesn’t matter; it was already a treifah when you had it. Who did you buy it from? Go back to the person you bought it from.

25:32 Speaker 4 No, but I raise the animals.

25:35 Speaker 2 You raise them. You raised an animal that—

25:37 Speaker 4 I can’t bring you one every time.

25:39 Speaker 2 You raised an animal that was suitable.

25:42 Speaker 4 Every animal owner.

25:44 Speaker 5 He says to the seller, “None of that concerns me.” Wait, I want a remedy. What would a remedy do?

25:48 Speaker 2 Conditions are something else. Conditions are something else, and we’ll talk about that shortly. If they stipulated something, that’s different. We’re talking about a situation where they didn’t stipulate anything.

25:55 Speaker 5 The condition, the condition—it’s understood without being stated.

25:56 Speaker 2 So let’s talk about a condition that’s understood without being stated. Let’s talk about that. Take an ox, right? There are two things you can do with an ox. You can plow with it, or you can slaughter it and eat it. You raised a lot of oxen. Half are treifah, half aren’t. Okay? It turns out—let’s say you planted trees, and ten grew that are poisonous and ten grew that are good. So there’s been a production failure. Nothing you can do about it. You have ten trees that are worth nothing and ten that have value. So the ten oxen that are kosher are good both for plowing and for eating. The other ten oxen, which are treifah internally, are no good for eating. If you sell one to someone and he tells you, “I’m buying it for plowing,” fine, he’ll plow with it. It’s his problem if he slaughters it. But if he buys it without specifying—there’s a halachic discussion about when that applies—but if he tells you explicitly, “I want to slaughter it,” and he slaughters it and it’s a treifah, it’s as though he bought something worth nothing. Now let’s talk about the condition that’s understood without being stated. The Rema does, in fact, cite an opinion about a treifah caused by a sircha, an adhesion. He says that because this kind of treifah is very, very common, a buyer who wants to be sure he won’t end up with one has to stipulate with the seller and tell him, “Listen, if it has a sircha, I want to return it.” If he didn’t stipulate that, it’s his problem. That’s what the Rema cites. So, really, nowadays the whole practice of slaughtering it and then returning it to you isn’t common at all. People buy it as is. But even in the circumstances of the past, according to the Rema, there was—

27:32 Speaker 2 —a situation where you could stipulate it, and if you didn’t, you couldn’t return it. But let’s take the halachah in its original form. I buy an animal, slaughter it a month later, and it’s a treifah. How do I know when it became a treifah—while it was with me or with the seller? Now, the example here is a type of puncture in the beis hakosos, one of the animal’s stomach chambers, and you can see the wound there. Has it already healed or not—within three days, after three days? So in this case, within three days, when you see the wound there and it hasn’t healed, you understand that it already existed at the time of the sale, and you can return it. But what happens if there’s a doubt? You don’t know.

28:15 Speaker 5 What happens is, if it has healed, that means time has passed.

28:19 Speaker 2 If it has healed, then time has passed. If it hasn’t healed, it hasn’t.

28:21 Speaker 5 So what am I buying, a cup for eight hundred shekels? Buying…

28:27 Speaker 2 Wait. First of all, with the beis hakosos, the opening of the wound has healed over. Now, it’s known that it takes three days after it’s punctured for that to happen. In other words, it has already healed. Yes, healed means time has already passed. Yes, if it’s healed, quite a while has passed. That means it definitely happened while it was with the seller. If it’s healed, it definitely happened with the seller, so I return it to him. That’s what I said earlier: if it hasn’t healed, if it has healed. If it has healed, I return it to him.

28:49 Speaker 5 If it has healed—if I bought it within the last three days, then fine, I’ll take it. If I bought it more than three days ago, I won’t take it. [unclear] the seller. If I bought it within two days, that means—

29:01 Speaker 2 Okay. If he didn’t buy it within two days, or he bought it within two days and the opening of the wound hasn’t healed over. If it’s still wet, you don’t know exactly when it happened. So it says: the buyer must bring proof; otherwise, he loses his claim and must pay the money if it’s still in his hands. Everyone knows the rule in Choshen Mishpat: the one seeking to extract money from another bears the burden of proof. Okay? Now I have an animal here, and we don’t know when it became a treifah. What should I have said? The one seeking to extract money from another bears the burden of proof. If you’ve already paid the seller and you want your money back, that’s your problem. If you haven’t paid, the seller bears the burden of proof, and he can’t take the money from you. But here the Mechaber says no. He says: the buyer must bring proof; otherwise, he loses his claim and must pay the money if it’s still in his hands. We don’t apply the rule that the one seeking to extract money bears the burden of proof here. Let’s give another example, one we brought earlier in a different form. Someone exchanged a cow for a donkey, and the donkey died. We don’t know when it died. Same thing: who has to bring proof? The owner of the donkey, that his donkey was still alive. We place the burden on one person without checking who has the money. Why not? Why don’t we check? This brings us to a new halachic principle. We’ll skip the third source. Wait. “Here it is found; here it was.” When something sudden happens, a sudden defect in an item, and I see it now in your possession, I say it probably wasn’t there before. A kind of chazakah dehashta, for those familiar with it. “Here it is found; here it was.” I see it now, so it probably started now. It wasn’t there before. So if we’re talking about a sudden defect—something that happens all at once—an animal becomes a treifah. It suddenly swallows a needle and becomes a treifah. That happens in an instant. Or death: a donkey dies. It could be that suddenly—

30:54 Speaker 2 something happened and it died. Bad luck. Things like that happen suddenly. You don’t know when it happened. So who do we place it on? The buyer. Why? Because it happened in his possession. “Here it is found; here it was.” Take, for example, the case of the ink that peeled off. That’s an even stronger example. Presumably something happened to it, but I don’t know—the seller may have left it in the sun, or the buyer may have left it in the sun. I don’t know. Someone did something that caused a problem. Now I find it with the buyer. “Here it is found; here it was.” I say it’s the buyer’s problem.

31:33 Speaker 5 [Overlapping speech with speaker 1]

31:36 Speaker 2 What?

31:37 Speaker 5 I mean, it’s already been in the customer’s possession for a week, I’m saying.

31:42 Speaker 2 Oh, now, if it was a short time. Take the car example we gave. A car’s engine fails after a few days. If you go to an expert—it isn’t always possible, but if it is—he looks at the problem and says, “Listen, this isn’t a problem that happens all at once. This engine was already dying. It was definitely dying a month ago.” In that case, it turns out he sold you something worthless, so you can go back to him. But if they suddenly find a nail inside the engine, just like the needle in the cow, you say, “When did that happen? I have no idea. Here it is found; here it was.” That’s essentially the example. Now let’s finish with one last example. Pay attention: someone sold cheese. One person sold another person cheese, and after some time the buyer opens it and sees that it’s rotten, moldy. Here too, they asked the experts, the cheesemakers: how long does it take to become moldy? What happens when there’s doubt? Look at the last line. If the matter is in doubt, the one seeking to extract money from another bears the burden of proof. Suddenly, here we say that the one seeking to extract money bears the burden of proof. Earlier we said, “Here it is found; here it was,” and suddenly here it’s the rule about the burden of proof. What’s the difference? Exactly. The Sma says—and we’ll finish with this—“An ordinary animal does not normally become a treifah. Since the doubt arose while it was in the buyer’s possession, we say, ‘Here it is found; here it was.’ But cheese has no such presumption.” Cheese generally ages; it’s a process. A product becoming moldy is a process that normally happens. Every cheese becomes moldy over time, so when I see it’s moldy, that process must have started earlier. The only question is whether it started with you or with him. That’s a case of doubt, where the one seeking to extract money bears the burden of proof. So I’ll summarize it on a slide. Could be, could be. Huh?

33:37 Speaker 6 Couldn’t we say, “Here it is found; here it was”?

33:41 Speaker 2 Here—

33:41 Speaker 6 “Here it is found; here it was” already.

33:42 Speaker 2 It was here all along; it was here. In other words—

33:46 Speaker 6 It also became that way just now.

33:47 Speaker 2 Yes, yes, it’s an expression. It’s an expression.

33:50 Speaker 6 But—

33:51 Speaker 2 The expression, right, what it means—the expression comes from other contexts. When you see something in someone’s possession—there’s the case of a woman who came to her husband’s home, whether it happened while she was with her husband, or various things like that. So for a sudden defect, it’s “Here it is found; here it was.” A typical defect—that’s what I called it, something that happens to a product—the one seeking to extract money bears the burden of proof. And an expiration date: we haven’t talked about that. Let’s say one word about it. When I buy something with an expiration date, there’s an example in halachah of someone buying beer or oil or things like that, and he tells the seller, “I want this for cooking. I want to use it little by little over a long period.” In that case, it has to last for a long period, and if it doesn’t last, I can return it. The same applies here. If I buy a product with a date on it, it’s as though I’ve agreed with the seller that it will last until that date. So if it spoils earlier, halachah allows me to return it.