Defects in a Product, Part 2 - Rabbi Yisrael Meatuf shlita

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

00:09 Speaker 2 We’re still on the same subject of defects in a product, approaching it from a different, interesting angle each time. I’ll start with three stories that will help us sharpen the whole issue. The first is what’s usually called buying a cat in a bag. Someone sells another person something and says, “I’m making this condition with you up front: you’ll pay this much for it, and you won’t come back to me with complaints.” Is that condition valid or not?

00:43 Speaker 3 Something—you don’t come back to him.

00:45 Speaker 2 Right, you don’t come back to me with complaints. That’s the condition we make up front. You pay the money and don’t come back to me with complaints. Now, it might be something you can’t even see, or something you can see. There are cases where not only does the buyer not know what’s in it, the seller doesn’t know either. There are all sorts of cases. For example, people buy a container of merchandise stuck on a ship, and then sell it on. Buy it for a certain sum; you might profit, you might lose. There was that ship with all the... that went down, and they said there was a container of iPhones on it. In short, you might profit or you might lose. The question is whether the condition made up front is valid: you don’t come back to me. You accept this price and don’t come back to me. That’s one question. The second question: someone bought a used car, and the seller told him, “You can take it to an inspection center if you want.” The buyer said, “No need.” Then, two days later, he discovered a serious problem. He went to the seller, who said, “I told you to take it for an inspection. You didn’t; that’s your problem.” Who’s right? Another example, which we mentioned last time: you can check whether there’s a lien on a car, but the buyer chose not to check.

02:10 Speaker 3 A lien is [unclear].

02:12 Speaker 2 Right. He chose not to check, and afterward—I’m giving possible cases; we’ll see later which ones hold up—afterward they discovered that the car had a lien on it. So he came to the seller with a complaint, and the seller said, “You could have checked and didn’t. That’s your problem.” I said I’d give stories, so let’s expand on the car example. Another example: a used car with various blemishes on the outside. The buyer didn’t walk around it to check all the scratches and everything else. He bought it as it was and left. Later he found a small dent here, a scratch there, and so on. He went to the seller, who said, “You could have checked, but you didn’t.” That’s really the whole issue: he could have checked and didn’t. Does that have halachic significance or not? One last question. A buyer ordered products online in a particular color because it suited his room, or for whatever other reason. In practice, the products arrived in a different color.

03:15 Speaker 3 A good product.

03:16 Speaker 2 What? A good product.

03:17 Speaker 3 A good product.

03:17 Speaker 2 Yes. The question is—

03:19 Speaker 3 We’re talking about things.

03:21 Speaker 2 Yes. The question is whether that’s grounds for a return.

03:24 Speaker 3 What does “not the right color” mean? There’s one shade of red and another that’s very different.

03:28 Speaker 2 Right, right.

03:29 Speaker 3 Is that what you’re talking about?

03:31 Speaker 2 Blue and red.

03:32 Speaker 3 Oh, blue and red.

03:33 Speaker 2 Yes.

03:33 Speaker 3 Well, blue and red is probably...

03:35 Speaker 2 Yes, but the question is—what did he order?

03:40 Speaker 3 A little lighter, a little darker. Subtle differences like those.

03:44 Speaker 2 Yes.

03:45 Speaker 1 If someone received the merchandise in the color he specified, that’s different from saying blue and getting red.

03:50 Speaker 2 Right. Now... I remember wanting to say something about that, but never mind, let’s continue. So we have this list we made on the subject of defects, and boruch Hashem, we’ve already covered almost half of it. There’s the question of using an item: does using it count as waiving your claim or not? Is it permitted or forbidden? We won’t go over all of that again. And there’s the question of a defect that appears later: whose responsibility is it? In the last class we learned that column. We’ll review it briefly. In each class, I give a very brief review of the previous one. We’ll get to that shortly. Today we’ll add these two: making an agreement up front—how exactly do you formulate it, when does it take effect, when is it valid—and the whole issue of inspection. If you didn’t check, does that make a difference or not? In the previous class, we learned what a buyer can do after finding a defect. We said there are several possibilities. One is to return the product: “This product isn’t good; I’m returning it.” We said that’s the basic law. That’s what the Shulchan Aruch rules. If there’s a defect of a kind that counts as a defect, the product is returned. A second possibility is monetary compensation. The Shulchan Aruch explicitly rules that out. Neither can the seller require the buyer to accept compensation, nor can the buyer require the seller to pay it. There’s no compensation for a defect. If you both want to agree to it, that’s your right, but neither party can require it of the other. There is an exception I didn’t mention then: a person bought something and already ate it. He ate it or already used it up. Now, there’s a lot of discussion about this. I don’t know whether I’ll give a class on it; I’m not sure. Whether it was forbidden by Torah law or by rabbinic law, whether

05:58 Speaker 2 he benefited from it or didn’t benefit from it—but in general, once the item no longer exists, a monetary refund or compensation can be relevant in certain cases. Today’s common practice is replacement. That’s what’s generally done. You buy an item in a store; you’re not set on that specific item, that particular computer mouse. You want a mouse that works. If there’s a problem with it, they give you another one. That’s the accepted practice, and we said that this practice obligates everyone to follow it. The last possibility is repair. There are cases where a repair can be requested—or offered. The seller can offer to repair it if the item can be restored to its original condition and the defect doesn’t affect the whole device, but is something peripheral. Repair it, and it will be completely back to normal; then that’s fine. Now, regarding what we discussed about making an agreement up front: there’s what we learned previously about what a seller is required to do from the outset. A seller may not create a false impression. He may not make things look better than they are. There are several possibilities: he withholds information and doesn’t mention certain things; he actually conceals defects; or he makes the item appear improved when it really isn’t. In all those cases, if he acted improperly, then certainly the buyer can return it afterward: you misled me, and in the end I found a defect, so I can return it. On the other hand, there are cases where the seller has done nothing wrong. He does it with the buyer’s knowledge. How? Either everyone knows, or everyone checks. There are products that everyone checks. For example, the halachic example of wine: everyone tastes it before buying and knows exactly what they’re buying. Or everyone knows that it’s blended in a particular way, with certain percentages, and so on. These are things the seller is allowed to do, and automatically, the buyer can’t come back to him

08:08 Speaker 2 afterward and say, “This causes me problems.” The question is about the cases in between: the seller isn’t allowed to do it, but he didn’t know. He sold you something without knowing it had a problem. Does his lack of knowledge exempt him or not? We’ve already said that, in principle, it doesn’t. In practice, I received a defective product; his not knowing doesn’t exempt him. Now the question is what happens if we make a condition between us. I sell you this computer and tell you up front, “On condition that you don’t come back to me about any malfunction.” And there are two possibilities within that: either I know about the problem or I don’t. Suppose I know there’s an audio problem—you can’t hear anything on this computer—and he buys it, trusting me. We make a condition [unclear].

09:00 Speaker 4 That’s something fundamental to the device.

09:02 Speaker 2 Yes.

09:03 Speaker 4 A washing machine that doesn’t work.

09:05 Speaker 2 Right, it doesn’t work. I’m talking about something that isn’t even basic, but that people care about. You sell it to him and explicitly say that you’re making a condition: he can’t come back to you over any... Does that hold up or not? That’s when I know about it. When I know, it’s a little harder to see how that condition could hold up. What if I don’t know? I bought this computer from someone and haven’t checked it myself. I tell him, “Take it, buy it. I have no idea what’s going on with it.” We agree that he can’t come back to me over defects. Is that binding? Let’s see. There’s a concept in halachah called “something whose amount is not fixed.” What does that mean? We don’t know how much there is. Let’s look at some examples and understand it better. The first example is a sale. Say I tell you, “There’s wine here in the cellar. I’m selling you all the wine in the cellar,” and we make a kinyan. Does it take effect or not? The halachah rules that it does. What does that mean? Even though the amount isn’t fixed—I don’t know exactly how much wine is there—we’ll check afterward how much there is and what the wine costs, and pay according to the quantity, so there won’t be an issue of ona’ah, overcharging. If I sell him what’s there for a thousand shekels and then see there are only two bottles, there’s an issue of ona’ah. But we don’t agree on a total price. We say each bottle costs a certain amount. I don’t know how much wine is in the cellar, and the sale still takes effect. Incidentally, that’s what we rely on for the sale of chametz. When the non-Jew buys the chametz, he doesn’t know how much is being sold to him. He doesn’t know. We tell him, “All the chametz and wine.” How would he know how much is there, how much pasta and so on? But what is required? There are also discussions about this regarding

10:48 Speaker 2 the sale of chametz, but the Shulchan Aruch says here what’s required: the kind of item has to be known. I have to know what type of thing you’re selling me.

10:57 Speaker 4 I have to ask another question.

10:59 Speaker 2 So when they sell it to the non-Jew, they actually take out a supermarket receipt listing different kinds of chametz products—pasta, wafers, and so on—and the price of each, and—

11:12 Speaker 4 They do that in stores too.

11:13 Speaker 2 That’s how I understood they do it for the sale of chametz: they give him some kind of general list.

11:16 Speaker 4 When I sell what’s in my home, I don’t do that.

11:18 Speaker 2 No, you don’t. The rabbi does it.

11:20 Speaker 4 But he doesn’t know what I have at home.

11:22 Speaker 2 No, it’s general—general types of products. With the companies and so on, they don’t go into every little detail, but he has a general idea of what he’s buying. He knows he’s buying pasta, wafers, pretzels, matzah products, things like that, and flour. So he buys those things, and we’ll see about the quantities later. If someone comes to take them, we’ll check how much there is. So with a sale, an amount that isn’t fixed is valid. When we get to an obligation, though, there’s suddenly a disagreement between the Rambam and all the other poskim, all the Rishonim. They all disagree with him. This is an area where the Shulchan Aruch generally follows the Rambam very strongly, but here it explicitly rules differently. It says, “The Rambam wrote such and such,” and then, in the Shulchan Aruch itself, “All those who came after him disagreed with him, and that is how we rule”—like those who disagree with the Rambam. What does the Rambam say? The Rambam says, “You cannot undertake an obligation whose amount is not fixed.” For example, you tell someone, “I’ll provide you with food for five years.” There’s some disagreement about whether that counts as fixed or not, but generally speaking, how do you know how much food will cost, or how much he’ll eat, over five years? According to the Rambam, that’s considered an amount that isn’t fixed, and you can’t undertake such an obligation. According to all the other poskim, you can undertake an obligation whose amount isn’t fixed. Okay? Now we come to the third subject: ona’ah and defects. What were we discussing? I sell you a product and say, “On condition that you don’t come back to me afterward with any claims.” What am I actually asking of you? To waive your claim against me. Because ordinarily, when a person buys a product, he expects to buy something without a defect. He doesn’t want a defect in it. If I make this condition with you, I want you to waive your claim. Now, do you know what you’re waiving? You don’t.

13:18 Speaker 2 If I say, “On condition that there’s no claim for a defect,” you don’t know what you’re waiving. The Rambam, consistent with his position, says it doesn’t work, and the Rema says it doesn’t work. But the surprising thing here is that the Shulchan Aruch rules that it doesn’t work. With an obligation, we ruled against the Rambam: you can undertake an obligation whose amount isn’t fixed. But when it comes to waiving a claim for ona’ah or a defect, we ruled that you can’t make a condition like that, because I don’t know... Some of the commentators explain that with a defect, I know nothing. I don’t know what the defect is; I don’t even know whether there is a defect. So it’s not like an obligation: I undertook to provide someone with food for five years. Fine, I don’t know exactly how much it will be; it could be this much or more. Here, you’re asking me to waive a claim over something I don’t even know exists. I don’t know whether there’s a flaw there or not. So, generally speaking, these conditions don’t hold up. When you say, “I’m making it a condition that you can’t come back to me over a defect,” it doesn’t work. You want it to work? There are two ways: either you spell out exactly what defects the product has. Tell me, “The audio doesn’t work, this doesn’t work,” and so on. You’ve told me exactly what’s wrong with the product. Fine, I waived my claim over those things; I knew what I was waiving. That works.

14:39 Speaker 5 With the data, he says it’s like that.

14:42 Speaker 2 Right, that’s a problem. Now, I’ll get to the situation where you don’t know in a moment. When you do know—when you know there are problems with it—you can spell out the problems to him. Or there’s the second option the Rema suggests: you tell him, “Listen, this computer would normally cost two thousand shekels. It has various problems, and I’m not going to list them for you, but all those problems together are worth a thousand shekels. So because of those problems, I’m selling it to you for a thousand instead of two thousand.” Here too, he’s considered to know. Why? Because you told him those problems are worth a thousand shekels. So he knows what he’s waiving his claim over, and it really does work. In other words, one of two options: either you tell him what the defects are, or you tell him their value. Then it works. Without that, though, it doesn’t. Now, what happens if I don’t know myself? As we said, a container—uh, a computer I bought and haven’t even checked. Or say I’m selling him an apartment or a car. I know about some problems with it, and I tell him about them, but I also say, “I’m selling it to you, and if you find other problems, don’t come back to me. I have no idea; maybe you’ll find more problems, but don’t come back to me.” I’m selling it to you for a certain price. Here, the poskim are basically unsure. They want to say: the person went into this knowing from the outset that there was uncertainty. You don’t know, I don’t know, so we’re entering into that uncertainty. He’s saying, “I’ll take the risk.” So perhaps the condition does work. When can it definitely work? If I turn

16:19 Speaker 2 it into a kind of deal between us. What does that mean? Say this computer costs two thousand shekels. I don’t know what’s wrong with it, or whether anything is wrong with it. I tell him—it’s a bit like insurance—I tell him, “Take this computer. You want to buy it for eighteen hundred shekels? I’ll give you a two-hundred-shekel discount. That discount is in exchange for your agreeing not to come back to me if there are defects.” Now what has he actually done? He’s effectively bought... I sold him... Wait, who bought from whom? Never mind. But he stands to gain or lose. If there really are no defects, he’s gained: instead of buying it for two thousand, he bought it for eighteen hundred. If there are—

17:05 Speaker 6 We don’t make an estimate. If I know there’s a defect, I’ll fix it.

17:07 Speaker 2 No, I’m talking about a case where the seller doesn’t know. That’s what I mean—if the seller doesn’t know. If the seller does know, that’s a problem, because then the person on the other side doesn’t really want to sell those things the seller knows about. If the seller doesn’t know, it’s a kind of gamble between us. I pay this amount of money. There is a basis in halachah for a transaction like that to be valid. Anyone who wants can look in siman 209, in the [unclear]. I don’t want to go into it at length, but there are circumstances where it is valid: just as he wants to buy and profit, he’s also willing to give you something in return. It’s like gambling with dice, which some say is binding. Why? Because each side wants to profit from the other. They agree between themselves to take a gamble. There are disagreements about this too, but that’s the general idea. So that’s the first subject we discussed: how to make an agreement. In general, if you want to make an agreement, it needs to be clear. If you don’t know and you want to tell the other person, “Let’s go into this knowing there’s uncertainty,” some say that’s binding. If you want to be more certain, give him some benefit in the deal. When you give him a benefit, the two sides are on equal footing: in return for that benefit, he agrees to take the risk. Okay, now let’s move on to the next subject. This is a very practical issue: someone didn’t check, and afterward the seller tells him, “That’s your problem; you didn’t check.” So let’s look at the wording of the Shulchan Aruch. I think we’ve already read it twice: “Someone who sells land or a servant, and a defect is found in the purchase that the buyer did not know about, the buyer may return it even after several years, because the sale was made in error. That is provided he did not use the purchase after learning of the defect.” There’s a condition: if you used it, you’ve lost that right. If you didn’t use it, you can

18:54 Speaker 2 return it. Now, what do you understand from that wording? What happens if someone bought a product, put it aside and didn’t check it? A year passed, and only then did he come to use it. He wanted to use it, checked it, and saw that it didn’t work. Is that a problem? Can he return it or not? What does it seem from the Rambam? He can return it even after several years. If you haven’t used it, you can return it. Then the Maggid Mishneh comes along and writes something like this. He writes, “There are those who say,” or something like that, that if he could have checked and didn’t, that counts as waiving his claim. And that statement is like a bombshell, and everyone tries to deal with it. On the face of it, it doesn’t fit with the Rambam, and... it doesn’t fit with real life either. I gave you a few examples: a person didn’t check whether a vehicle was under a lien or whether an engine worked. He didn’t check, and in the end the engine doesn’t work. “You didn’t check—what do you want? You could have checked and didn’t. That’s your problem.” That doesn’t make sense. So all the later poskim each give exceptions to what the Maggid Mishneh said. True, he could have checked and didn’t—but only if this, this, this, this and this. There are about eight exceptions, which means this rule almost never comes up. In general, the Tzemach Tzedek cites this Maggid Mishneh and says that the Rambam certainly disagrees with him. From the Tzemach Tzedek’s wording, it seems he doesn’t agree with this Maggid Mishneh either. But the poskim took up his words and discussed them, so let’s see what the exceptions are. Okay. First, the general rule according to the Maggid Mishneh is: you didn’t check, so you waived your claim. Except—let’s look at a few possibilities. If there’s a substantial defect: you didn’t check, and you found a very serious problem, like

20:52 Speaker 2 we said—the engine doesn’t work, the car is under a lien, the computer doesn’t produce sound, things like that. True, I didn’t check, but it never occurred to me to waive my claim over something so serious, so not checking doesn’t count against me. Another thing is if the defect is uncommon.

21:13 Speaker 7 Why would someone go and buy it? I bought an ordinary product, assuming the price isn’t an indication. If there was no discount from the outset, it wasn’t what I thought it was.

21:25 Speaker 2 That’s true, that’s true. It also relates to something we’ll say later. But we’ll get to it.

21:38 Speaker 7 What does it mean that the price isn’t an indication?

21:40 Speaker 2 There are cases where the price is an indication and cases where it isn’t. In general, the text says, “The price does not indicate,” okay? But where it says that, it’s talking about one person’s claim against the other. There’s a pair of oxen there, or something like that, and whether the other person also sold the oxen or only—yes. If you look there, you’ll see that most people use the term for both this and that, but some use the term only for this, and then... What?

22:10 Speaker 7 Most people use it only for this.

22:12 Speaker 2 Okay, one of the two; it doesn’t matter. It depends who is making the claim, the buyer or the seller. But the point is that the price isn’t an indication here because perhaps you’re among the minority, or something like that. But there are situations where the price is an indication. For example, someone bought—oh, this is another example; I don’t remember whether we discussed it. Someone bought a drill, for instance. He bought a drill and tried to drill into the reinforced concrete of his safe room, but it wouldn’t make a hole. He comes to the seller and says, “I can’t drill holes in my safe room.” The seller tells him, “What did you expect? This is a basic drill. It isn’t meant to drill holes in a safe room.”

22:46 Speaker 7 I got approval.

22:47 Speaker 2 Yes. Okay. Now, what if the buyer comes to the seller and says, “Listen, I need to buy a drill that can make holes in my safe room,” and the seller sells him a drill, and afterward he comes back and says it doesn’t make holes in the safe room? Obviously that’s a problem. What happens if he buys a product that has two possible uses? In halachah, the example is an ox: you can plow with it, or you can slaughter and eat it. He buys a product with two possible uses, and he doesn’t tell the seller why he’s buying it. The question is whether he can complain afterward. Here, they say the price is an indication. In this example, yes, the price is an indication. I paid that much money to get a drill that can—an electric screwdriver or something like that. I wanted something substantial. In other words, this isn’t an across-the-board rule.

23:40 Speaker 7 But we would—we would read the Rambam a little differently.

23:42 Speaker 2 How?

23:43 Speaker 7 We’d read the Rambam a little differently.

23:46 Speaker 2 Well?

23:46 Speaker 7 He says you used the product. That means you bought it and used it, not that you simply hadn’t checked it yet. You used it. Once you discovered a defect, you stopped using it from the moment you found it.

23:57 Speaker 2 You could explain it that way, but let’s say I don’t need the product right now. I bought it for a month from now. Because I put it aside and didn’t open it, I’ve lost my right to return it? That’s it?

24:07 Speaker 7 No.

24:07 Speaker 2 I bought it sealed in its packaging.

24:09 Speaker 7 Maybe you bought a computer, I don’t know. You bought a computer and didn’t use it for two months. You bought a computer.

24:18 Speaker 2 Right, right.

24:18 Speaker 7 Then you’re not allowed to return it.

24:20 Speaker 2 Right, that’s also true. That’s another possibility. Right, that situation too. And here I’d say the Maggid Mishneh presents a problem.

24:26 Speaker 7 You didn’t check.

24:27 Speaker 2 You didn’t check? Check it. Try it—test it.

24:29 Speaker 7 I learned to check.

24:30 Speaker 2 Within a time when he could have checked. That’s how it comes out according to the Maggid Mishneh. Again, now let’s examine this more closely. What else do I need? Let’s see. So if the defect is substantial, you can return it. Also if it’s uncommon: I didn’t think there would be a defect like that in this item. I buy a car; maybe it has a scratch here, a dent there, I don’t know what. But suddenly there’s something that—what?

24:58 Speaker 7 [unclear]

25:00 Speaker 2 Yes, suddenly it won’t connect; that’s already substantial. But never mind—there are things that aren’t substantial but are uncommon, and then not checking doesn’t count against you either. “In excellent condition”—I’m putting that in quotation marks. The seller told me, “I’m selling it to you in excellent condition.” So I say, why didn’t I check it? Because you told me it was in excellent condition, so why would I check it? Now, this point really applies to all our stores. Any product you buy in a store—even if they don’t tell you it’s in excellent condition—as long as they haven’t told you it has problems, it isn’t supposed to have problems. It’s as if they told you it was in excellent condition. So the fact that I didn’t check it doesn’t, doesn’t, doesn’t make a difference.

25:40 Speaker 7 That applies to every kind of secondhand item.

25:41 Speaker 2 Exactly. It’s simply with secondhand items that this rule applies.

25:45 Speaker 7 What about a warranty and things like that?

25:47 Speaker 2 A warranty. A warranty is—

25:49 Speaker 7 Is that something where I can make a claim against the seller?

25:52 Speaker 2 I’ll tell you: a warranty is essentially a kind of extension. I’m committing to you that this product is sturdy enough to last a certain amount of time. It’s supposed to last one year, or three years. If that time has passed and something happens to it, that’s no longer my responsibility. Right? Now, in halachah, if I used a computer for a month and after a month it suddenly stopped working, then, according to halachah, you know, who can say? Maybe something happened all of a sudden. I don’t know whether an expert can examine it and say, “There was nothing wrong with it before; something suddenly happened.” Maybe it was an electrical surge, lightning, I don’t know what. So the seller comes and gives you a warranty, meaning you can have peace of mind for a year. As long as we don’t know that you did something negligent or caused a problem, I’ll cover it for you, because it’s a sturdy product. Right? That extends the seller’s responsibility further. But if you find a defect that you’re one hundred percent sure was there from the beginning—for example, it’s a sealed box. You open it and see that there’s something else inside. Right? And the seller believes you. Let’s say he doesn’t believe you—that brings up other problems, like how you prove it, and so on. But he believes you. He just says, “Listen, a lot of time has passed.” What does the Rambam say? We saw earlier: you can return it even after several years. And by the way, under the law too, when it comes to nonconformity, not defects, if there’s a nonconformity the law gives you a lot of time: two years, and then another two years during which you might not be able to return it but can get compensation, remedies, and things like that. But that law isn’t widely known, so it can’t constitute the prevailing practice. The prevailing practice concerns an ordinary warranty. But if there are things

27:33 Speaker 2 like that which are unusual, I’ll give you an example. I bought a set of the Tur and Shulchan Aruch from someone. He had bought it long ago, and it had been sitting in boxes at his place; he hadn’t even opened it. He sold it to me, and I saw that two of the books were the same and one volume was missing. One duplicate volume and one missing volume. In a case like that, you can’t say, “Listen, there’s a one-year warranty, and the year has passed, so that’s it...” It was like that from the beginning. It definitely came that way from the manufacturer, so you can return it. Another example: he was in a hurry and didn’t check. During the purchase, something happened that meant he had to hurry. He hurried and didn’t check. So I don’t say that he waived his claim just because he was in a hurry. He can come back to the seller afterward. Or a case involving effort or expense—and this is very relevant to us when it comes to having a car inspected. When you buy a car and take it to an inspection center, it costs quite a bit of money. It costs money—I don’t know if it’s a lot, but it costs money. The buyer says, “I don’t have to go and pay money to inspect the product. I’ll use it normally, and if I find problems, I’ll come back to you.” Or if it takes effort: you’d need to do a thorough inspection. I don’t have to do all that. A basic, ordinary inspection is enough. It’s roughly the same idea when experts are needed. There’s a phrase—I’ll find it there in the file—from the Rif. The Rif says that when a person buys something, he generally doesn’t take it to experts for inspection. He relies on his own judgment. So the fact that he didn’t take it to experts—even if I don’t know whether he did or didn’t—I assume he probably didn’t take it to experts for inspection.

29:11 Speaker 2 And one last case: the person still hasn’t paid.

29:19 Speaker 8 He owes his fellow money.

29:20 Speaker 2 Not because he owes his fellow money, but because of... an idea from the Mishneh LaMelech. He says that someone who hasn’t paid is at ease, because the money is still in his hands. If he’s already paid, he worries that afterward they’ll give him trouble—will they take it back or not? So he hurries to inspect it. But as long as he still has the money, he’s at ease. He says, “Why didn’t you check it?” “I didn’t check it because I still have the money. I haven’t paid you yet. When I come to pay, I’ll check it.”

29:44 Speaker 8 Meaning the sale hasn’t been inva—invalidated.

29:47 Speaker 2 It has been completed, because, in principle, a purchase is completed by taking possession.

29:53 Speaker 8 He still has time. He can buy it. First of all, he owes him. First of all, I owe him.

29:58 Speaker 2 It’s a completed sale; it’s an actual debt.

30:00 Speaker 8 Yes.

30:00 Speaker 2 But as for the inspection—the claim that “you didn’t check it, so you waived your claim”—on that point I say that as long as I haven’t paid, I’m not in a hurry to check it.

30:09 Speaker 8 All the time.

30:11 Speaker 2 What?

30:11 Speaker 8 All the time.

30:11 Speaker 2 That’s—how much time do they have until the seller asks him for the money? Right. There’s a concept of an unspecified loan being due after thirty days. Right? The poskim discuss what happens if someone tells you, “Pay me later.” You buy a product from him, and he says, “Pay me later.” What does “later” mean? So the Ba”ch says that just as an unspecified loan is due after thirty days, an ordinary purchase on credit is also due after thirty days. After thirty days, I have to pay for it. Okay, that’s the subject of inspecting the purchase. So if we go back for a moment, we’ll see what we’ve covered and what we haven’t. Here’s an initial summary. Specifying the defects is one possibility: you have to specify exactly what the defects are, or how much they reduce the value. We haven’t discussed that yet. Minor defects: what happens if there are very small defects? Can I come back afterward and seek to undo the sale? So what does the rule say? The rule says it depends on what’s customary in that place. The Shulchan Aruch states this explicitly in the name of the Rambam: whatever it is customary to return a purchase for, to cancel a sale because of, is considered a defect. What people don’t customarily return it for is not. So if—

31:22 Speaker 8 How can you know what is customary and what isn’t? Whenever a case comes up, each person will say, “This is customary, and that’s customary.” I mean, it’s always something that... There’s no body, uh, no body that determines what’s customary in the country.

31:36 Speaker 2 Look, there are things—there’s a gray area in everything. Almost every halachah has a gray area, but some things are black and white. I’ll give an example: you bought, uh, a computer, and there’s a small tear in the computer’s cardboard box. Do people return a purchase because of that? The answer is no. You’re buying the computer, not the cardboard around it. If the entire box is damaged and looks old and all that, then people do return it. If there are problems with the computer itself, people do return it, and today that’s much more the case than it used to be. Today, if there’s any little thing wrong with a product—I buy a product, I want it to be perfect, with no problems at all. So minor defects today are really very marginal things. With secondhand goods, though, it’s different. In the secondhand market, you buy a car and the air conditioner doesn’t get quite cold enough, or it makes a little noise, or there’s a crack you didn’t notice, or things like that. Those are small things that people don’t attach importance to, so you can’t come back and cancel the sale over them. So now we come to the initial summary. If the buyer wants to be sure he’ll really get what he wants, with no defects or anything like that, he should agree on it in advance. “I want a product with no scratches,” and so on—even if it’s secondhand. If he agreed on that, then he agreed on it; there’s nothing to be done. He’ll be able to go back to the seller. I also want to talk about the issue of colors that we discussed, in a moment. I’m finishing this up. As for inspection, how should you inspect it? First of all, with a basic inspection. Maybe I didn’t say that, but it seems obvious. Things you can clearly see right in front of you. So even if they didn’t discuss it explicitly, that’s

33:22 Speaker 2 That’s called waiving the claim, right? You saw it, didn’t say a word, and waived it. Now, what kind of inspection does he do? We said a superficial inspection. It shouldn’t require effort, spending money, or bringing in experts. And after the fact, what happens if he didn’t inspect it? If he didn’t inspect it at the time of purchase, and didn’t inspect it after the purchase—that’s a little different. If he didn’t inspect it when buying it and walked away, then by leaving and agreeing not to inspect it, that’s more of a waiver. So even those who disagree—for example, the Nesivos Hamishpat. Ah, no, not the Nesivos Hamishpat. It’s someone else. The Pischei Teshuvah cites someone; I don’t remember his name. He says that what the Maggid meant was that you didn’t inspect it at the time of purchase: you could have inspected it, it was something you really could have checked easily, but you didn’t, and you walked away. And it wasn’t a major issue, and so on. In that situation, he agrees that it counts as waiving the claim, if it happened at the time of purchase. If it’s after the purchase, you can say, “Why didn’t I inspect it? Because I figured I’d check it tomorrow, or in another two days.” Fine, there’s no particular urgency to check it immediately. But if it’s something you can check right at the outset—for example, there’s a wine and they tell you, “Come taste it,” and they let everyone taste it before buying, but you decide not to taste it and buy it. Now, if the wine is vinegar, okay, it’s vinegar—what do you expect? That’s a major defect too. But if it has a taste that makes you say, “I don’t like the taste. I don’t think so; I had the impression this was a finer wine,” and you could have checked but didn’t—that’s a kind of waiver at the time of purchase. Now let’s talk about colors. It’s essentially the same thing we discussed here about minor defects. Color depends on the product, and also on what he said earlier: it depends on how the product is presented during

35:16 Speaker 2 the purchase. First of all, online it’s very common to show a picture of a product as an example. There are other—it’s, it’s—this product comes in ten colors. They’re not going to show every color of the product. Sometimes they show the product in one color. You need to look at the details to see whether a color is specified. If a particular color is specified and the supplier sends another color, you can certainly return it. You saw that it said that color. Now, another thing: there are items where people are particular about the color. A dress, for example. A woman buys a dress; she sees its color. You can’t say, “Oh, it’s the same dress in a different color.” That’s not... It’s something people are particular about, so I automatically understand that the color was part of what they agreed on. So again, it follows the accepted practice. That’s what it comes down to. What if I’m buying things for a room that I’m designing in yellow, and I want everything to be yellow? This is just like those minor defects. If people generally don’t treat the color as important, and aren’t particular about it, then you’re the exception. If you want to be particular about the colors, it’s up to you to specify that in advance. So in that situation, you would need to make it a condition in advance, because—

36:31 Speaker 9 of other people’s things. Maybe it’ll be included in the catalog. You know that’s the most—

36:36 Speaker 2 Right.

36:37 Speaker 10 Yellow isn’t your shade of yellow. That’s usually the problem.

36:40 Speaker 2 Right, and—

36:41 Speaker 10 If I have a yellow, I know what my yellow is, but this is a different yellow, and that’s the biggest problem. It’s yellow, but a different yellow. It’s not something he’ll accept.

36:48 Speaker 2 That’s what he wants.

36:50 Speaker 10 Those things, even if they—

36:53 Speaker 2 People even take a tile from home and bring it along to compare the colors. Things look different depending on the lighting and all sorts of factors. Ah, there was one more point I wanted to make... Wait. About colors. What?

37:15 Speaker 10 You buy a toy thinking it’s a certain size. Suddenly you see that it looks cheap—or the opposite—that it’s not quite what you had in mind.

37:23 Speaker 2 There’s, there’s... I saw this with something that was very cheap. A product, some kind of table or something like that. Someone ordered it. What arrived at his house was a picture. A picture of the product. It wasn’t written—he hadn’t looked through all the details. He saw the product, ordered it, and it was very, very cheap. There’s nothing he can do. He didn’t read the details.