Defects in a Product, Part 3 - Rabbi Yisrael Meatuf shlita

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

00:10 Speaker 2 We’re in the middle of discussing defects in a product. Someone buys a product and finds defects in it. Now, if anyone was wondering: last time we had a whole class, and if you noticed, we didn’t mention a word from the Alter Rebbe. We discussed various other halachic authorities and the Shulchan Aruch, but we didn’t mention the Alter Rebbe at all. Why not? The answer is that the Alter Rebbe doesn’t write about this subject. Why doesn’t he? He does mention, in just a few words, that someone selling an item may not conceal its defects—he must not hide them. But... what?

00:55 Speaker 3 [Speaker 2 murmurs]

00:56 Speaker 2 Right, that covers everything from the seller’s side. What is the seller obligated to do? Don’t hide the defects. But what happens if you’ve already sold it and defects have been discovered? He doesn’t mention that at all. Now, this is very interesting. I’ve said many times that when the Alter Rebbe wrote this work—as we’ve said, Choshen Mishpat comprises many, many volumes; it’s an enormous body of material. Orach Chaim in the Alter Rebbe’s Shulchan Aruch takes up several volumes, while Choshen Mishpat is so small. Why? Because the Alter Rebbe wrote this for everyone. It isn’t for dayanim; it isn’t material for dayanim or for a beis din. It’s for every individual. And you can see that very clearly here. There’s a subject very similar to a defective product: ona’ah, overcharging. We’ve discussed it many times. Someone sells something at too high a price. The Gemara and the halachic authorities all give three possibilities: less than a sixth, exactly a sixth, and more than a sixth. Less than a sixth is waived; at exactly a sixth, the sale stands and the overcharge is returned. We won’t go into that now. More than a sixth—the sale is void. When the Alter Rebbe discusses ona’ah, he mentions less than a sixth and exactly a sixth, and that’s it. He stops there. Why? Because his approach is: “Were you overcharged by more than a sixth? Is it a substantial case of ona’ah where the sale needs to be voided? Go to a beis din and they’ll rule on it. Or come to an understanding with the other person; otherwise, go to a beis din and they’ll rule on it. What I’m writing here is what is permitted and forbidden in monetary matters—what you may do and what you may not do. In this work, I want to save you from theft and from transgressing the Torah’s prohibitions.” So for less than a sixth and exactly a sixth, he tells you whether or not you have to return the difference. More than a sixth is already a matter of voiding the sale, of what to do after the fact. What do you do after the fact? Go to a beis

02:43 Speaker 2 din and they’ll rule. The same applies here with a defect. Of course, from the outset, the seller may not hide defects, and the Alter Rebbe writes all of that. But if it’s already happened? Either reach an understanding between yourselves about what to do, or go to a beis din. He doesn’t spell out all those details. I do bring them up in this class, even though the class is usually based on the Alter Rebbe, because people want to know the basic rules without having to go to that trouble. Sometimes they want to settle the matter between themselves and want to know what halacha says. So we do address it. As we mentioned last week, the subject of defects can be divided into seven topics. We covered some of them last time, and now we’ll add a few more. Those of you who can see them—these four here. They’re right in the middle; they’re really the basis of the subject. What happens? I found a defect, and it counts as a defect according to halacha. We’ll discuss another time what counts as a defect and what doesn’t. But what do I do? Do I return it, exchange it, repair it, or receive compensation? There are four possibilities, and you can reason one way or another about each of them. So the Torah tells us the correct rule. Let’s spend just a few minutes reviewing what we said last time, because it’s hard to remember. Once I’ve found a defect in an item, from that moment on I have to stop using it. Why? We said it’s because of avak ribbis, a form of prohibited interest. We won’t go into that at length, but essentially, you paid money and are getting it back, so it’s like a loan, and your use of the item is like avak ribbis. Second, it’s also theft if you don’t tell the seller, because the item is no longer yours—you want to return it. There’s a problem

04:43 Speaker 2 of theft here. And we said that if the seller explicitly tells you, “Keep using it as compensation for the distress,” then there’s certainly no problem of theft, and no problem of ribbis either, because the use isn’t being given in return for the supposed loan, but as compensation. Another issue: if I’ve already used it, does that settle it? Can I no longer return it because I’ve waived my claim? Generally, yes. Today we’ll read the wording in the Shulchan Aruch: when a person uses it, that counts as waiving the claim. But if it’s necessary, that isn’t considered waiving the claim. We gave the example of someone who was driving a car, discovered a defect, and needed to drive back. Necessary use isn’t considered waiving the claim. And third, if he already told the seller, “I want to cancel the sale,” but continued to use it anyway, we said that’s a matter of dispute. There’s no clear ruling on whether he can return it afterward. I’m being very brief because this is a review of the previous class. One more topic we covered: what happens if you find a problem and don’t know when it arose? For example, we gave the case of someone who bought a car, and a few days later the engine failed. Does that mean the car already had a problem beforehand, or not? So the first thing, of course, is to have an expert examine it. Is this the kind of defect that can happen all at once? If it’s considered a sudden defect, something that can happen all at once, we always attribute it to the buyer. Why? There’s a principle in halacha: “Where it was found, there it arose.” I found it here, so it was presumably already here. I don’t attribute it to some earlier point. So if I found it in the buyer’s possession, it presumably happened in the buyer’s possession.

06:33 Speaker 4 Even if it’s a brand-new car? Straight out of the box?

06:36 Speaker 2 Well, if it’s a brand-new car straight out of the box, the expert will tell you it couldn’t have happened just now; it must have been there before. But if you buy a used car and the problem is—there are different kinds of problems, right? If it’s the kind of problem that could happen suddenly—for instance, I gave the example of a nail getting into the engine. I don’t know; with an animal that’s much more common. Or something broke, but you don’t know when it happened: before or after. I say, “I’ve only seen it now, so it presumably happened now.” That’s the halachic rule. If you want to bring proof that it happened earlier, bring proof; no problem. But if—

07:12 Speaker 4 That’s the halacha.

07:13 Speaker 2 What?

07:13 Speaker 4 That’s the halacha.

07:13 Speaker 2 That’s the halacha for something that happens all at once. The example in halacha is an animal becoming a treifah, or death. There’s a case where someone exchanged a cow for a donkey, and suddenly the donkey died. They don’t know when it died—before or after the exchange. Death is something sudden. So I say it happened in the buyer’s possession.

07:31 Speaker 4 Is the phrase “Where it was found, there it arose” a quotation from halacha?

07:35 Speaker 2 Yes. It’s a halachic term: “Where it was found, there it arose.” Now, if it’s a defect characteristic of that product, something that develops over time rather than happening suddenly—the example in halacha is moldy cheeses. He bought cheeses and opened them to find they were moldy, but he opened them only after several days. So there’s a distinction between within three days and after three days; an assessment is made of whether the mold had already developed beforehand. Here, when there’s doubt, I return to the usual halachic rule: “The one seeking to take money from another bears the burden of proof.” Notice the difference. Yes?

08:08 Speaker 4 What proof am I asking for?

08:10 Speaker 2 Look, when there’s no proof either way—

08:12 Speaker 4 For the buyer.

08:13 Speaker 2 Neither this way nor that, so it depends on whether he paid or not. That’s what follows, because the burden of proof is on the one seeking to take money from someone else. In other words, in the previous case, I put it on the buyer in any event. In any event. Why? Because it happened while the item was with him. In this case, I treat it like any uncertainty in halachah: the burden of proof is on the one seeking to take money from someone else. So if he already paid, he can’t demand his money back. If he hasn’t paid—meaning, who is pursuing whom? The Gemara asks why the burden of proof is on the one seeking to take money from someone else. It says: the person who is in pain goes to the doctor. In other words, you’re the one pursuing me now; you want the money back, so you have to bring proof. We gave the last example: an expiration date. A product that has expired. You buy something with a certain date printed on it, and it spoils before then. Even though I could say, “Listen, it was fine when you bought it. What do you want from me?” But we gave an example from halachah of someone who buys beer or wine and says it’s for gradual use. What does that mean? He wants to use small amounts of it over a long period of time. In that situation, the seller has to give him something that will actually last that whole time. Nowadays, the date on any product is like a condition between us that it must remain good until that date. Once it spoils before that date, there’s certainly a problem, and he can cancel the purchase.

09:39 Speaker 4 Even if there’s a place where it—

09:41 Speaker 2 Oh, oh. Here’s where the uncertainty comes in, and it’s similar to what we discussed earlier. When I’m unsure whose possession it was in when this happened, I say: where it is found is where it was. If I don’t know what happened, how he stored it and everything, I say to the buyer, “Listen, maybe you didn’t store it properly?” Then the buyer has to bring proof.

10:01 Speaker 4 If it was outside.

10:02 Speaker 2 Yes. Now let’s move on to today’s topic. I’ve used a legal term for it here; I simply couldn’t find a more conversational word. In law, there’s a concept called “remedies.” What does “remedies” mean? What am I supposed to do after I run into problems? What options do I have? That’s what they’re called in law. So what does someone do when he buys a product and discovers that there’s a problem with it? What options does he have? We have four possibilities here. We’ll go over them briefly and then look at the practical halachah. One possibility is simply to return it. You received something defective. You got a book with a page missing—return it. That’s one possibility. The second is financial compensation. Again, I’m talking about possibilities we might think of; I’m not saying what the halachah says. Financial compensation: you say to the seller, “No problem, I’ll keep it. Give me ten shekels back for this book, and I’ll keep it.” Can you demand that of the seller or not? A third possibility is an exchange. I’m not returning it; I’m exchanging it for another item that’s in good condition. The fourth possibility is a repair. That doesn’t apply to everything, but some things can be repaired. Again, this always depends on both sides. Sometimes the seller says, “Come, I’ll fix it for you,” and you say, “What do you mean? I don’t want a repaired item; I want a new one. Exchange it for me.” Sometimes it’s the other way around. Sometimes the seller says, “I’m not fixing it. If you want it, buy it; if you don’t, don’t.” The question is who has the right to demand something, and what can be demanded. Let’s start with the first possibility: returning it. The Shulchan Aruch states it explicitly. The source is the Rambam, whom the Shulchan Aruch quotes: “If someone sells another person land, a servant, an animal, or any other movable property”—he includes everything here:

12:05 Speaker 2 Land, a servant, an animal, movable property. That means real estate as well as objects and movable things—everything. “And a defect is found in the purchase that the buyer did not know about.” In other words, he didn’t know at the time of purchase. If he saw it when he bought it, that’s his problem. But if he didn’t know, “he may return it even after several years.” Notice that: even after several years. Once he discovers the defect, he can return it. This is a subject we’ll discuss in upcoming classes: what actually happens today, whether there’s a time limit or not. But according to halachah, he can return it even after several years.

12:45 Speaker 5 It wasn’t found then.

12:47 Speaker 2 Oh, good, good. So when I say here that he can return it even after several years, I’m talking about a problem that was definitely there from the beginning.

12:57 Speaker 5 For example.

12:58 Speaker 2 Yes, for example. Say I have a device with several functions, okay? It can play sound and it can display things. All along, I’ve only used it to display things. Suddenly, after two years, I try to play sound, and it doesn’t work. I take it to a repair shop, and they tell me there’s no speaker inside, or there’s some other problem that’s clearly been there all along. The speaker was supposed to be there; that’s what was agreed, and I see it isn’t. In other words, the problem definitely existed at the time of the sale, but I’ve only discovered it now. What do I do? Or, for example, someone bought something sealed in its packaging and didn’t open it because he didn’t need it. He didn’t open it for several years, and when he does, he sees a problem inside that was definitely there all along. Now, often there’s also the issue of whether the two sides trust each other. The seller might tell him, “Listen, you went and swapped it afterward and took it out.” But if the seller believes him when he says that this is how it was, then he wants to know what the halachah says. The halachah says he can return it even after several years, because the sale was made under a mistaken assumption. Here are two lines we already discussed in the last class: “This applies provided he did not use the purchased item after learning of the defect. But if he used it after seeing the defect, he has waived his claim and cannot return it.” There’s a condition: you can return it provided you haven’t used it. If you used it, that use itself counts as waiving your claim, and you can’t return it. We mentioned qualifications to that: if he had no choice but to use it, or if he notified the seller—there’s a difference of opinion about that. But the basic ruling is that using it counts as waiving the claim. So that’s the first possibility we mentioned. Returning it is the original ruling the Sages gave: there’s a problem,

14:48 Speaker 2 so you return it. Now let’s move to the second possibility, financial compensation. Can financial compensation be offered? Can it be demanded? The Shulchan Aruch says, again quoting the Rambam: “We do not calculate the reduction in value caused by the defect. Even if he sold him an item worth ten dinars and a defect was found that reduces its value by one issar, he returns the item. The seller cannot say to him, ‘Here is an issar for the loss in value caused by the defect,’ because the buyer can say, ‘I want an item that is whole.’” Notice that it begins with the seller wanting to offer compensation. A buyer purchased something and there’s a problem with it. The seller says, “Wait, let’s calculate it. This problem cuts the product’s value in half; I’ll refund you half the price.” He can’t do that. Why? Because the buyer says, “I want an item that is whole. I don’t want something defective, something with a problem. I want something that works properly.” So the seller can’t force the buyer to accept financial compensation. What about the other way around? The Shulchan Aruch says: “Likewise, if the buyer wants to receive the amount by which the defect reduced its value, the seller has the right to say: Either take it as it is, or take your money and return my merchandise.”

16:08 Speaker 5 He can’t give a refund.

16:09 Speaker 2 No compensation. Take it as it is. You don’t want it? Return it. Those are the two options.

16:15 Speaker 5 Take the money back.

16:17 Speaker 2 Yes, yes, take the money back. So, as things stand, financial compensation is completely off the table. From the standpoint of halachah, there’s no provision for financial compensation. If they agree to it, there’s no problem at all. But the seller can’t offer it and insist, “Take financial compensation,” and the buyer can’t demand of the seller, “Give me financial compensation.” Now for the third topic: exchanging it. As we’ve seen, strictly speaking, what do you do according to halachah? You return it. It doesn’t say you exchange it. What’s commonly done today when you come in with a defective item? Usually, you return it. So we’ll see that there’s a source for this in halachah too. There’s a book called... You cancel the sale; you can’t exchange it for him. Why? Because the merchandise has already gone down in price. But he continues: “However, where its price has not gone down, the seller may provide merchandise that is in good condition, and the sale need not be canceled.”

18:18 Speaker 5 But he may.

18:21 Speaker 2 He gives him the option. “Entitled” means—yes, yes, that’s what follows from what he says. He can, if the price is the same. Apparently this falls under the principle that we compel a person not to act like the people of Sodom. In other words, there’s a rule in halacha: if you’re not losing anything, what do you care if he gets it? Now, if the price has gone down, you can say, “I’m losing out.” But if the price is the same, give it to him. What happens nowadays? Nowadays, the custom is to exchange the item. That’s the custom. And there’s a rule—the Ramban and the Shulchan Aruch bring it up in the context of defects, and it applies to defects and everything else—that if something is customary for everyone, the transaction is made with that understanding. When you buy something in a store, too, the understanding is that if something is wrong, the store will exchange it, not just take it back. But you could say there’s an exception: the exchange is only when the item is available. Think about it for a moment. Suppose you go to a store, and the owner imported some special products from abroad. The one he sold you was the last one, and now you’ve found a defect. Are you going to require him to place a new order abroad to get you the product? It doesn’t go that far. In other words, the accepted practice is to exchange it when the product is available. It’s not something he has to move mountains for. So if the product is available, he is obligated to exchange it for you. He can’t say, “I don’t want to,” and you’re obligated to accept the exchange, too, because that’s the custom. You’re bound by the custom. But if the product isn’t available, we go back to the original law: you return it and get your money back. Now let’s move on to the fourth case: repairs. And this, too, divides into two questions. Can the buyer require

20:13 Speaker 2 the seller to repair it? Can the seller require the buyer to accept a repair? I’ll give two examples on the subject I spoke about at a Torah gathering here five years ago, right around Chanukah. There’s a bit of a paradox here. Let’s take two examples that are similar in principle, but feel very, very different to us. In the first, a person bought a car, paid for it, and performed a kinyan sudar. The car became his at that moment. And while they were sitting there in the room, before it became his, while they were still finalizing things, the car outside was in an accident. Someone hit it and turned it into a total loss. Okay? It was very badly damaged. Now imagine the buyer saying to the seller, “I don’t care. Fix the car for me. We agreed on a car like this, so fix it.” The seller says, “What do you mean, fix it? Let’s cancel the sale. There’s hardly a car left. What do you want?”

21:12 Speaker 6 The seller.

21:13 Speaker 2 The seller says that, and the buyer tells him, “Fix it for me.” Okay, that’s one extreme example on one side. Or let’s say it was a house: there was an earthquake and the house was destroyed. The buyer tells the seller, “Build me a new house.” That doesn’t make sense. On the other hand, imagine someone buys a house, moves in and everything, and suddenly discovers a plumbing problem—some issue that isn’t all that serious. The seller tells him, “Listen, I looked in the Shulchan Aruch. Either, uh, take it as it is or cancel the sale. You don’t want it? Leave the house.” Say the air conditioner doesn’t work. He turns it on and sees that it doesn’t work. “Leave the house. There’s no financial compensation.” Halacha says there’s no financial compensation. There’s no... I’m forcing you. Something here doesn’t quite make sense. A person bought a house and moved in, and you tell him, “Either move out, take the...” You could cheat people this way, too. A person could leave all kinds of defects, knowing the buyer won’t cancel the sale and will have to absorb the whole loss. He wanted to find some kind of—

22:20 Speaker 6 Seven years.

22:21 Speaker 2 What?

22:22 Speaker 6 When you buy a new house, there are things like that. You get seven years.

22:25 Speaker 2 Yes, all the cracks.

22:26 Speaker 6 There’s a rule about that. There are all kinds of things.

22:30 Speaker 2 Cracks in the walls—they’re covered for a few years.

22:35 Speaker 6 New.

22:37 Speaker 2 Yes, exactly. Now, what is the responsibility there? The responsibility is to repair it: the seller comes and makes the repairs. The buyer can’t say, “There are cracks here; I’m moving out.” He has to stay in the house, and they repair it for him. So we’ll see in a moment that halacha explicitly discusses only one direction: the buyer wants to cancel, and the seller tells him, “What’s the problem? I’ll fix it for you.” That direction is stated explicitly in the Shulchan Aruch. The reverse isn’t mentioned. I’ve looked into this a great deal, actually, ever since—

23:09 Speaker 6 The buyer says, “I’m pulling out of the deal.”

23:11 Speaker 2 That the buyer specifically wants the—because usually that doesn’t happen. Usually the buyer prefers something new. He doesn’t want repairs; he wants something new, while the seller wants to repair it. That’s the case that appears in halacha. But sometimes the opposite happens, as we just said. A person lives in a house and doesn’t want to leave it; he wants it repaired. Can he require the seller to repair it? Only recently I found two sources that discuss this, and I’ll mention them shortly. So let’s look at the Shulchan Aruch. This is a responsum written by the Rosh. The Tur cites it, and the Shulchan Aruch brings it. Reuven sold Shimon houses he owned in another city. And before the sale was completed—in other words, he stresses that they were in another city because they weren’t there beside the houses. They were making all the acquisitions and signing the contract in another city. Before the sale was completed, non-Jews entered the houses, damaged some areas, blackened the walls with smoke, and tore out the doors and windows. Imagine what the house looks like now.

24:10 Speaker 6 .

24:11 Speaker 2 What?

24:12 Speaker 6 .

24:12 Speaker 2 Yes. They made a complete mess of the place. Now Shimon wants to back out. Shimon says, “I wanted a nice, new house, and what I’ve got is a smoke-blackened house without windows or doors.” Exactly. The Shulchan Aruch deliberately stresses that the non-Jews entered the houses before the sale was completed. Because if they had completed the sale—performed a kinyan sudar, for example—and it had already become his, and only afterward the non-Jews did this, it would be his problem. And this brings us to the issue of acquisition. In everyday life, we don’t pay much attention to the precise moment something becomes ours. You buy an item at the supermarket, buy sugar at the store—you don’t check at what moment it becomes yours. You pay, take it and go. In halacha, there is a moment of acquisition. That moment is decisive. This is one example of why it matters so much. Non-Jews came in and did this, and now there’s no way to get compensation from them. It’s a kind of unavoidable mishap. Who bears the loss? What’s the ruling? It really depends on the moment of acquisition. If it happened just before the acquisition, it belongs to the seller. Just after the acquisition, it belongs to the buyer. Yes. Now, in this case, it happened before the sale was completed, and Shimon wants to back out. Reuven argues that since the defect can be remedied, he should deduct enough from the price to restore the house to its original condition, and the sale should stand. He says, “What’s the problem? It’s a house; it can be renovated. I’ll bring in a company, we’ll renovate everything, put the doors back, restore it all. It’ll look like new afterward.” The Shulchan Aruch says that Reuven is right. Reuven is the seller here. Reuven is right: he can repair it and give it to you repaired. And the Rema adds, “For he sold him a house, and it is still called a house.” Why does he say that? We’ll soon see why. But he says, “I sold you a house, and it’s still called

26:04 Speaker 2 a house.” What does “it’s still called a house” mean? Even after the damage, it’s still a house. It’s just a house with problems. I need to—exactly, exactly. He’s already hinting at what comes next. He’s hinting at what comes next. As I said earlier, if there had been an earthquake and the entire house had collapsed, he couldn’t tell him, “I’ll build you a new house.” The buyer would say, “That’s the end of it; I’m going home.” So here he says, “He sold him a house, and it’s still called a house.” What needs to be done? Repairs? I’ll repair it. Now, it isn’t mentioned here, but it’s very easy to understand. What happens if a person buys a car, for example?

26:44 Speaker 7 What?

26:45 Speaker 2 Someone buys a new car, and... the engine breaks down, or all sorts of things go wrong with it. So they tell him, “We’ll fix it for you.” Before he even gets the car, it develops all sorts of problems—dents, scratches. They tell him, “We’ll fix it up, paint it, and so on.” That doesn’t work, because a new car is a new car. A repaired car is something else. The example here is a house. Huh? Yes, Gilad[?] is here. Now, a house is the kind of thing that, after you renovate it, goes back to being like new—at least in their day. In our day, too. You renovate it and make it truly new, and there’s no problem with that. But if, even after the repair, it’s still considered a repaired item, you also can’t tell him, “I’ll lower the price for you.” As we said earlier, there are no price reductions. I wanted a new car; I’m getting a new car. So here we’re talking about something that returns to its original condition. Now, the Rema adds: “The same applies to a defect that is not in the house itself, such as when someone else has a right of way through it, or a water channel runs through it.” I bought a house. We agreed it would be a house with a yard, and that the yard would be mine alone. Suddenly, after I buy the house, it turns out someone else shows up with a document giving him permission to pass through there. I didn’t want a place where—I didn’t want a house where someone walks through my yard. So the buyer tells the seller, “Go sort things out with the neighbor.” Now the buyer comes and says, “I want to cancel the sale altogether.” The seller tells him, “Forget that. I’ll sort things out with the neighbor, pay him, get him out of the picture, and restore the property to its original condition.” The Rema says he’s right. Why? Again, the house remains as it was. There’s something incidental here; we’ll fix it, and that’s no, no

28:29 Speaker 2 problem. Or a water channel runs through it—there’s water flowing there; I’ll fix that. But if the defect is in the house itself, such as when he told him it had a sound wall and it turns out to be unstable, and now, to build it, you have to take it apart and build a new wall, and he cannot provide him with a sound wall, and so on. So what emerges, essentially, is that if the seller offers a repair and the item returns to its original condition, that’s perfectly fine.

28:58 Speaker 8 Doesn’t the wall return to its original condition?

29:00 Speaker 2 Ah, provided—you're right. Provided that, even after the damage, the thing itself is still there. But if, after the repair, you have... What?

29:11 Speaker 8 Not in its essential substance.

29:12 Speaker 2 Exactly. If, after the repair, you essentially have something entirely new—that isn’t written here, but it’s in the Rema’s source; the wording is, “Something entirely new has come here”—then it’s a new product. It’s a product, but it’s not what I bought. I bought this book; you brought me a different book. In that case, I can cancel the purchase. But if the thing still exists, the substance of the thing still exists, and there’s either something incidental or a repair where the damage didn’t destroy the thing, I can fix it, and that’s fine. So to sum up, before we get to the next point, notice that I’ve presented only the seller’s side, where the seller wants to repair it. That’s what appears in the Shulchan Aruch. We’ll mention the other side shortly. Let’s look at a summary of everything we learned today. Earlier, we learned it as option A, option B, option C. Now I’ve added a heading to each one, showing how halachah views it. We have the original ruling, which is returning the item. That’s what halachah says: you discover a defect, you return it. Then there’s what was mentioned only to rule it out: monetary compensation. You can’t demand monetary compensation in any form, not the seller from the buyer and not the buyer from the seller. By the way, in the case of a repair—maybe, maybe this is worth going over for a moment. Notice the wording of the Shulchan Aruch here. What does Reuven say? Reuven argues that since it’s a repairable defect, he should deduct from the price so that the house can be restored to its original condition. Notice what he’s telling him.

30:50 Speaker 8 There’s a difference. It hasn’t been restored; that’s compensation, though.

30:52 Speaker 2 It’s a kind of compensation. But the thing is—

30:56 Speaker 8 No, it’s not compensation.

30:56 Speaker 2 Why did we say—

30:57 Speaker 8 No, no.

30:58 Speaker 2 He deducts it from the price.

31:00 Speaker 8 No, you tell him, “What’s the problem there? A door. Okay, fix the door.” You don’t fix it...

31:07 Speaker 2 Look here at the issue of compensation. Notice why compensation isn’t possible: the buyer says, “I want an undamaged item.” You can’t offer compensation, because the buyer says, “I want an undamaged item; I don’t want an item with a defect.” What happens here? He isn’t simply giving him compensation. He says he should “deduct from the price so that the house can be restored to its original condition.”

31:26 Speaker 8 As you mentioned.

31:27 Speaker 2 Yes. So essentially he’s saying, “I’ll give you money; go get a contractor to renovate it and restore it to its original condition.” That’s fine. Now notice who’s supposed to go to the trouble in this situation. You’re the seller; we agreed that I wanted a house in proper condition. I received a house with problems. Am I now supposed to go to the trouble of bringing someone in? Because the effort involved is an issue in its own right. There’s a sefer called Ulam Hamishpat, which writes plainly that the Shulchan Aruch did not mean that the buyer should handle the whole mess and go to all that trouble; rather, the seller should. When it says “deduct from the price,” it means including the effort involved. That’s what he writes. Let’s return to the summary. The original ruling is to return the item. The ruling mentioned only to rule it out is monetary compensation. You can’t ask for monetary compensation. The custom nowadays is replacement. We said that custom is binding. And the last possibility, in certain cases, is repair: when the defect is not in the item itself, when it’s something that hasn’t been completely destroyed. It’s a repairable defect; you can fix it, restore it to its original condition, and it will be completely restored, like new. In that situation, the seller can say, “I’ll repair it.” Now let’s move to a situation where the buyer wants a repair. The buyer demands a repair. We mentioned two cases: a broken-down car, and a house where the air conditioner doesn’t work. Now, in general, you can explain the buyer’s side very well, and you can explain the seller’s side very well. The buyer says, “I bought a house. The air conditioner doesn’t work—fix it for me. What, are we going to cancel the whole sale now? Come on, it’s something small.” For the seller’s side, let’s take the car example. Though maybe the car is a rather extreme example—

33:28 Speaker 9 It’s called, uh, [unclear] in the house.

33:30 Speaker 2 You’re right.

33:30 Speaker 9 Not a house.

33:31 Speaker 2 So it’s—

33:31 Speaker 9 A house too.

33:32 Speaker 2 Right.

33:32 Speaker 9 It’s still called a house.

33:33 Speaker 2 Right. Right, right. Let’s take an example where there’s some sort of—this is a luxury apartment with something around it, all kinds of birds and features that cost a great deal of money, okay? Now, it was broken. The buyer bought it thinking there was some system around it that worked, and he sees that it doesn’t work. He tells the seller, “Fix it for me.” The seller says, “No, I don’t have the money right now to spend on all of that. If you want to buy it, buy it; if you don’t, don’t.” But seemingly, are you going to decide for the seller that he now has to start spending money? He doesn’t want to repair it. If you want to buy it, buy it; if not, don’t. There’s a rationale on both sides. Now, we saw that halachah mentioned only the seller’s side. Ulam Hamishpat—the same Ulam Hamishpat we cited—bases his view on the Rema we brought earlier. The Rema spoke about a defect in the house itself versus a defect that is not in the house itself. He says this principle also applies—and this is very interesting; we need to give it a bit of a general framework—to the buyer. He says, “As long as the house itself remains intact, the buyer can require the seller to repair it.” That’s what he writes. Conversely, if something has happened to the house itself, the buyer cannot require it. Just as—briefly, he links the two: just as the seller can require the buyer to accept a repair, so the buyer can require the seller to make one. Now, seemingly, we have to add the question of customary practice. In other words, there are things today that an ordinary person would repair, and there are things a person wouldn’t go and repair. So if there’s—

35:11 Speaker 9 Depends which ones.

35:12 Speaker 2 What?

35:12 Speaker 9 Depends which ones.

35:13 Speaker 2 It depends on the situation, on which—right, right. So, after reading what Ulam Hamishpat says, that the seller can indeed be required to fix it, in a case like that you tell him, “Listen, there’s a house here. The air conditioner doesn’t work. If it were your house, what would you do? Wouldn’t you fix the air conditioner? You would. So do it now for the buyer, because right now it just looks like you’re trying to take advantage of him by saying, ‘Let’s cancel the sale.’ After all, when the next buyer comes along, what will you do? You’ll have to fix it eventually.” But if it’s something secondary that people buy as-is, like the example I gave earlier—some system that not everyone needs—and the seller says, “I don’t want to fix it, and I’m selling it as-is. I thought you didn’t care, that it didn’t matter to you,” then it would seem that we do need to take customary practice into account here. Otherwise, we’d end up with some rather strange cases. That’s the practical conclusion. That’s all for now. We’ll continue in the coming classes. Let’s go back to the beginning for a moment. One second. The initial agreement, and what counts as a defect in this context: How do you make an agreement at the outset if you want to stipulate something? The seller wants to stipulate that the buyer can’t come back to him with claims, while the buyer wants to stipulate that he can back out over anything. We’ll examine that in the next class, along with what counts as a defect. There are cases where something isn’t kosher, or has a different hechsher, and all sorts of things like that. With Hashem’s help, everyone is invited to the next class.