Refund for a Defective Product - Rabbi Yisrael Meatuf shlita

00:00 Speaker 1 I’ll start with a question someone asked me recently. We’ll give the answer at the end of the class, time permitting, because it’s a question we could discuss at length or answer briefly. Here’s the question: There’s a break inside a product I bought. They told me, “Send a picture.” That’s their policy: you send a picture, they see it’s broken, and they send you a new one. The problem is that the break is on the inside, not the outside. So he asks whether he’s allowed to break the product on the outside, photograph it, and send the picture.

00:33 Speaker 2 Ask them.

00:35 Speaker 1 You know how it is with these clerks... you know.

00:39 Speaker 3 They want a picture to show that the product didn’t arrive. They need a picture for the protocol. He claims the product didn’t arrive, so they say, “Send us a picture.”

00:47 Speaker 1 Ah.

00:49 Speaker 3 Do people photograph their hands, or do people photograph—

00:52 Speaker 1 Yes.

00:52 Speaker 3 What’s going on here?

00:54 Speaker 1 In short, you don’t know whether it’s a real clerk or some artificial intelligence answering you. Anyway, that’s the question; we’ll look at it at the end of the class. So we have this chart that we’ve shown a few times about defects in a product. Baruch Hashem, we’ve covered more and more ground, including the time allowed for a return. I planned to discuss that in this class, but we ended up covering it along the way through people’s questions. So we’ve covered almost everything, and now we’re left with these empty boxes. We have rental fees: after I’ve used a product and return it, do I have to pay rent for using it? That sounds strange to us, but we’ll soon see that in halachah it’s quite straightforward. What counts as a defect? We’ll say a few words about that at the end. Most of the class will be about the last part: a refund. Then there are shipping costs. Shipping costs come up three times. First, when he ordered the original product, he paid for shipping. Second, the defective product has to be sent back—another shipping charge. Third, the new product has to be sent out—shipping again. Who has to pay those charges? And there’s the trouble of arranging the shipping. Who has to—sometimes it’s—

02:23 Speaker 2 The first time, when you received it. What do you mean? I received a product I can’t use. He could pay just for the trouble involved.

02:30 Speaker 1 So how much of that may the seller—

02:33 Speaker 2 That’s why.

02:34 Speaker 1 Two out of three? One out of three? We’ll see. Sometimes, too—

02:39 Speaker 3 It depends whether the original shipping was handled by the seller or by another company that you, as a company, could use to send it.

02:46 Speaker 1 Yes. Now, sometimes the first shipment costs one amount and the second costs another. So it’s important to know which shipping charge you have to pay. Do you have to pay for this shipment? Then there’s the trouble of shipping: who has to make the effort and take care of it? Did he know or not know? In other words, does it make a difference whether the seller knew there was a problem—whether he deceived you or acted in good faith? And what happens when the product doesn’t match what was agreed upon? What are the rules in all these cases? So let’s begin. As always, we’ll briefly review the previous class. We discussed whether you can stipulate in advance, “Don’t come back to me with problems.” We said this involves something of an unspecified amount: you don’t know exactly how many problems there will be, or what they’ll be worth. I won’t repeat it all. We discussed that, generally speaking, if you sell someone something without specifying how much you’re selling him, the sale is valid. He knows what you’re selling him, but not how much of it; the sale is valid, and the price follows the quantity. When it comes to an obligation, there’s a dispute about whether you can undertake an obligation of an unspecified amount: “Whatever you’re short of throughout the year, I’ll make up.” You don’t know exactly how much you’ll owe. But with overcharging and defects, such a stipulation certainly doesn’t work. “I’m making a condition with you: you waive any defects in advance.” He doesn’t know what defects there are, how many there are, or whether there are any, so it doesn’t work. What should you do instead? We mentioned two possibilities. One is to tell him, “I’m making a condition with you: I’ll tell you exactly what the defects are, and on that basis you agree to waive your claim.” That’s fine, because you spell out exactly what the problems are.

04:26 Speaker 2 Just give him a discount.

04:27 Speaker 1 Or you give him a discount and tell him, “There are defects worth such-and-such an amount.” Yes. By the way, you don’t have to give him a discount, right? You tell him the defects are worth such-and-such an amount. If he wants to pay for them anyway...

04:38 Speaker 2 But if he tells him—

04:39 Speaker 1 You’re informing him.

04:40 Speaker 2 If he tells him there are defects, because it was supposed to cost two thousand and now it’ll be five hundred—

04:45 Speaker 1 Yes.

04:45 Speaker 2 What am I getting back?

04:46 Speaker 1 Yes, yes. You tell him about those defects, provided that the defects really are worth five hundred and not fifteen hundred. We also discussed a case where the seller doesn’t know whether there are other defects. In that case, there may be a way to do it. Ah, perhaps that’s what you meant when you mentioned a discount: he says, “I’ll give you a discount in exchange for your waiving claims over any other defects I don’t know about.” There’s a sort of deal being made here. I want to... yes, that’s how it seems.

05:15 Speaker 2 That’s right.

05:16 Speaker 1 A kind of sale, almost like insurance. Good. We discussed someone who doesn’t inspect what he buys: does he lose his rights because he didn’t inspect it? To recap very briefly, the Maggid Mishneh holds that he does lose out, but we said there are many exceptions. There’s a substantial defect, which we can’t assume he waived; an uncommon defect he wouldn’t have thought of; or a case where the seller explicitly told him the item was in excellent condition. In that case, too, the failure to inspect doesn’t... So what if I didn’t inspect it? You told me it was in excellent condition. I was sure it had no problems. Or if he was in a hurry and didn’t inspect it—in other words, his failure to inspect was a practical matter, not a waiver. Or if an inspection involves trouble or expense. We gave the example of taking a car to an inspection center, which costs money. If you need experts to inspect it, that’s similar: it involves trouble and expense. And someone who hasn’t paid: as long as he hasn’t paid, he isn’t in a rush to inspect the product, so his failure to inspect doesn’t indicate a waiver. Now let’s move on to today’s topic. We’ll start with the rental fees we mentioned at the beginning. Let’s give an example that appears in the Shulchan Aruch, one that’s easier for us to relate to. A person lives in an apartment for a year; let’s say he bought it from a developer. During that year, various substantial problems with the apartment come to light. Eventually he goes to the developer and says, “Listen, I can’t live in this place.” The developer says, “All right, go ahead and leave. You can cancel the sale.” What will he owe for that year? Let’s see what the Rambam says, as quoted in the Shulchan Aruch: “If someone sells land to another person, who consumes its produce, and after some time a defect becomes apparent in it”—this is a similar example—“if he wishes to return the land to its owner, he must return all the produce he consumed.” He bought a field, earned money from it, and then

07:14 Speaker 1 returns it. He has to pay for all the produce he consumed, all the profits he made. “And if it was a courtyard and he lived in it, he must pay rent for it.”

07:23 Speaker 2 That’s another “if,” yes.

07:25 Speaker 1 If he improved it, that’s another “if,” yes. If he improved it, he gets the value of his improvement. That’s not—I thought I wouldn’t mention that in this class.

07:31 Speaker 2 At least he owes something if he improved it. He didn’t just, say, take a courtyard and live in it.

07:36 Speaker 1 Right, that’s right. When we say “all the produce he consumed,” it means his profit. You deduct his expenses, of course. But if he improved the land itself—say he even built a house there or something—he certainly receives the value of the improvements he made as well. So what it says here is that he pays rent. You returned something, but it wasn’t just in your possession for free all that year. You pay rent. Now what happens with movable property rather than land? The Ohr Sameach and the Ohr Gadol raise a difficulty with the Rambam. They try to say that the Rambam was speaking specifically about land, not movable property. But we see two earlier Rishonim who explicitly discuss movable property too. There’s the Shiltei Giborim—you may know it from its place alongside the Rif. He was among the later Rishonim. He writes: “If someone sells a horse to another person, who earns money with it, and then discovers a defect and wants to undo the sale, he must give him what he earned with that horse.” A horse is movable property, and he says explicitly that payment is required. “And even if he earned nothing with it but merely used it for his work.” In other words, he didn’t actually make a profit. An actual profit I can understand more readily: you made money here; give me the money you made from my horse. But here he only used it for his work. He says that it appears he must pay for its use as well, “for a horse is like the courtyard we discussed above in the name of Maimonides”—that’s the Rambam—“where he must pay for its use when he comes to undo the sale.” That’s one of the Rishonim. There’s another Rishon, the Rashbash. Both say that rent must be paid for movable property too. So what do we do today? Today it’s a little different. We said that rent certainly has to be paid for a house. With movable property, it’s a dispute among the poskim, right? But the tendency was more toward requiring payment, like those Rishonim.

09:34 Speaker 1 In our times, when we say you have to pay for a house, why do you have to pay for it? Because a house is something that is rented out, and the buyer is also someone who would ordinarily rent. In other words, he isn’t homeless, someone who sleeps in the house and would otherwise just sleep on the street. He isn’t someone who would never pay rent at all. A person like that wouldn’t have to pay. We’re talking about someone who would ordinarily rent, someone who always needs a home.

10:05 Speaker 4 The buyer or the purchaser?

10:07 Speaker 1 Both. The house has to be available for rent, and the person has to be someone who would ordinarily rent. Now, with movable property nowadays, you buy a printer, a drill, all sorts of things. Usually they aren’t available for rent. You wouldn’t pay to rent the item, and the seller generally doesn’t rent out his belongings either. So in a case like that, it would seem that no payment is required. The apparent exception is a car. A car is something that is rented out, and a person who doesn’t have a car and needs one for a period of time would pay to rent it.

10:46 Speaker 4 Because that’s easy.

10:47 Speaker 1 What? There are certain things, yes. There are certain things, light equipment that’s… I think cars and the like. Things intended for rental would apparently require payment. Now the next subject is shipping costs, and it’s very interesting. Many of the laws concerning defects—like the previous law about rent, or what he said about someone who made improvements; I didn’t mention it, but that’s there too. Or someone who used an item—we talked about that in the first class on defects—whether he used it normally or abnormally. The Rambam gives a great many basic laws without citing earlier sources. He presents them, and they later appear in the Shulchan Aruch. This whole question of shipping costs and the effort involved in shipping is another example. The Rambam discusses it. What’s also interesting, if you can look in the Shulchan Aruch, is that it starts in the middle of a section. The beginning of the section deals with a case in the Gemara, from which the Rambam derived all these laws, according to his commentators. The Shulchan Aruch puts all the laws in the same section. “One who buys an item from another and informs him that he is taking it to a certain city to sell it there.” Now, pay attention: as we read, we’ll see that circumstances today are different, and we need to understand why. We spoke once about lost and found items: today people are less likely to call you when they’ve lost something. Today, if you leave an item in the street, people are less likely to pick it up and take it for themselves. Something happened that changed the circumstances. What happened? We said that today there’s greater abundance. There’s an abundance of products. In the past, people worked a long time to make every needle; it took a lot of effort. Today there are factories and industry. That has made things more readily available. Here it’s interesting to consider—I was thinking about

12:46 Speaker 1 what has changed since then. Let’s think about it together today. What has changed? We’ll see here that circumstances were different from ours. “One who buys an item from another and informs him that he is taking it to a certain city to sell it there, and after taking it there discovers a defect in it.” Yes, “a certain city” doesn’t necessarily mean what we would call a country today. In the Shulchan Aruch, a medinah can mean a large city. You buy an item in Jerusalem—you buy a mixer in Jerusalem—and you say, “I’m going to Tel Aviv now to sell it.” “The seller cannot say, ‘Bring my merchandise back to me here.’ Rather, he refunds the money, and the seller takes care of bringing his merchandise back or selling it there.” In other words, you told him, “I’m going to Tel Aviv.” Then you send him a messenger; that’s how it worked. Today you call him: “Refund my money.” He’s supposed to put the money back in your bank account, and you tell him, “The item is with me; please come pick it up.” Think about whether that makes sense today. You buy a product in some store, and then you tell the seller, “I’m going to Netivos.” Later you call him: “Come to Netivos to pick up the item.” There’s a problem. Today that’s hard to imagine. The Shulchan Aruch continues, quoting the Rambam: “But if he did not inform the seller that he was taking it to another city, and he took it there and discovered a defect, it remains the buyer’s responsibility until he returns the defective item to the seller.” In other words, everything hinges on one question: did you tell him or not? If you told him you were going somewhere else, it’s his concern. If you didn’t tell him, he isn’t supposed to bear… Okay.

14:25 Speaker 5 With any transport, that’s unequivocal.

14:29 Speaker 1 Okay, so I can just say this: in the past, what things would people usually discover a defect in? A horse, a piece of furniture, things like that. What was sold in the market in abundance, with lots of sellers and buyers? Food, things like that. What does a defect mean there? “I found a defect in a tomato”? It doesn’t work like that. There are certain things, like wine that was later found to be vinegar. And even there, as we see from the laws and the Gemara, when you bought wine loose, the way they did then, the seller had a barrel. You would come with your jug and taste the wine; you wouldn’t just buy it without tasting it. When could you buy wine and then find it had turned to vinegar? When you were buying wholesale, in a large transaction. So think of a comparable purchase today, some particular deal you make—like the caravan you mentioned. Someone buys a caravan, someone buys a used car, things like that. Here it makes much more sense to tell the seller, “We made a deal; you knew where I was going.” But when you buy a mixer in Jerusalem and say you’re going to Tel Aviv, the seller forgets it a second later. He doesn’t remember at all that you told him. People say things like that all the time. With a substantial transaction, you can understand it, and that’s simply the difference. So this is what follows: in principle, everything depends on what the seller knew. If he knew, he has to take care of it. Notice what it says here: “He refunds him the money, and the seller takes care of bringing his merchandise back from where it is.” He takes care of it, puts in the effort, everything.

16:13 Speaker 5 Right. He sold the product with a defect?

16:18 Speaker 1 He sold it with a defect. He didn’t—soon we’ll discuss whether he knew or didn’t know. Here it makes no difference whether he knew.

16:23 Speaker 5 He sold the defective product in the State of Israel.

16:27 Speaker 1 Yes.

16:27 Speaker 5 They make money from it.

16:29 Speaker 1 What do you mean—let’s say he sold the product in Jerusalem.

16:33 Speaker 5 To sell it, right?

16:36 Speaker 1 Ah, the buyer took it; the buyer didn’t sell it. The buyer told him, “I’m going to sell it somewhere else.”

16:42 Speaker 5 He traveled somewhere else.

16:43 Speaker 1 Yes, and before he sold it, he found a defect there.

16:45 Speaker 5 He sold it with a defect?

16:46 Speaker 1 He didn’t sell it with a defect. He notifies the seller right away, before selling it.

16:51 Speaker 5 Packages of tzitzis, and he found a rope. He sold it by the weight of the rope. Apparently he opens the package—not a rope, tzitzis. Now what do you do? He isn’t from here. The seller has to look into it, find someone who will sell it there… sell it. How am I going to sell it? Here, they bring it to him—

17:12 Speaker 1 By the way, what you’re asking is interesting. The Tzemach Tzedek addresses it. There’s a responsum of the Tzemach Tzedek about someone who bought merchandise, traveled somewhere to sell it, discovered it was defective, and sold it.

17:23 Speaker 5 Defective.

17:25 Speaker 1 Yes, it was defective, and he sold it as defective for less money. Then he came back to the seller to ask for a refund of the difference. The seller told him, “It’s explicit in the Shulchan Aruch: once you’ve used an item after discovering a defect, you can’t return it. You’ve waived your claim.” He says to him, “Why did you sell it? Selling it shows that you waived your claim.” The Tzemach Tzedek says that isn’t a valid argument. He says that...

17:47 Speaker 5 Someone did the work.

17:49 Speaker 1 Exactly. He says, “I did it for your benefit. Why should the seller now have to go to the trouble of traveling there and selling it? I sold it for you. I brought you what it’s actually worth, and you should return the difference you took from me.”

18:04 Speaker 5 Is that what he rules?

18:05 Speaker 1 Yes, that’s what he rules there.

18:08 Speaker 5 What’s the general rule here?

18:11 Speaker 1 The general rule?

18:13 Speaker 5 Anything a person can do on his own initiative, when he thinks there’s work to be done and he doesn’t...

18:18 Speaker 1 It has to be clear, yes, it has to be clear. Look, both the case here in the Shulchan Aruch and the case the Tzemach Tzedek discusses involve commerce. With commercial matters, ultimately it’s all money. He can’t tell you, “I wanted precisely that item.” You wanted money. You would have come there to sell it, and you would have sold it for the same—That’s it. In that case, the place he went was where that product fetched the highest price. That’s apparent from the responsum. That’s why he took it there to sell it. So he told him, “A defective item would only fetch that amount there. If you had taken it somewhere else, you would have done even worse.” Now, up to this point we’ve been talking—note this—about returning the defective product. Who handles that? The seller handles it, pays for it, and so on. And here’s what I mentioned earlier: nowadays, when you go to an ordinary store—let’s see, there are several possibilities. You might buy in a physical store, or order a product by phone or online. In all these situations, note that the practice today is that you return it the way you received it. In other words, if you came to a store to buy a drill, the seller expects that if there’s a problem, you’ll come back to the store. You’re not supposed to call him from home and say, “Come to me; I have a problem with the drill.” But if you ordered it for delivery and received it that way, they’ll pay for return shipping, because they understand that you didn’t come to them. That’s what I see as the reality today. You didn’t come to them; you received it by delivery. So they say, “Okay, let’s restore the previous situation,” and they’ll pay the shipping to return it

19:57 Speaker 1 to them. There’s also an intermediate case: a collection point. If you received it at the post office, you’ll go to the post office to send it back, and they’ll pay the cost. No, you can’t ask for a courier to come to your home if you didn’t buy it with home delivery. All of that, it would seem, follows customary practice. Now, what about the initial amount I paid? At the outset, I paid for a product that was defective. Essentially, I received nothing. I ordered a mouse, it arrived at my home, and it doesn’t work. Why should I pay shipping for a mouse that doesn’t work? Note this: the following sentence appeared in the middle of the passage we read earlier. It’s a separate issue, so I split the passage in two. It says: “If the seller knew that the item he was selling had a defect, he is liable for the expense the buyer incurred in transporting that item to a particular place. But if he did not know it had a defect, he is exempt from the cost of transporting it there, though he is liable for the cost of returning it.” In other words, there’s a major difference between returning the product and paying for its initial delivery. What’s the difference? Let’s look at it on the slide. There’s a well-known principle we discussed in previous classes: the burden of proof is on the one seeking to extract money from someone else. Why is the burden of proof on him? The Gemara says that the person in pain goes to the doctor. In other words, you’re the one with a problem; you’re the one who wants to collect the money. Are you short of money? Bring proof to collect it. The same reasoning applies here. The person to whom the matter is relevant has to pay for it. The defective product is now supposed to go back to the seller. Who needs it? The seller. It’s his product. At first he thought he was selling it; now it turns out it’s his product and it’s supposed to return to him. As far as the buyer is concerned, why should he care? “Bring me another one. You can leave both the defective one and

22:01 Speaker 1 the new one.” In other words, the seller wants it, so let him pay, make the effort, and take it back. As for who has to make the effort, that’s a dispute among the early authorities. There are discussions about what the Rema means, but in general that will follow customary practice. As for shipping costs, though, it’s certain: you want it, you pay. The buyer wanted the original purchase. The buyer wanted to buy something, and he paid shipping to receive it. That’s why we discussed, many classes ago, what happens if they didn’t agree on shipping costs. They agreed, “Yes, I’m buying the item,” but said nothing about shipping, and there’s no clear custom in that field. In some fields there is a clear custom as to who pays. Let’s say there isn’t one here. Who bears the shipping cost? The buyer. The buyer wants it to reach him, so he should pay. But what if the seller knew it was defective? That’s already causing damage. It’s called garmi. In halachah, there’s the concept of grama and the concept of garmi. Garmi is damage that you—there are several criteria that determine whether it’s called garmi, but it’s damage that will clearly result from what you did. The seller knew that this was what would happen when he sold someone a defective item. Presumably, he thought the buyer wouldn’t discover it or wouldn’t come back to him. He tried to deceive him somehow and didn’t succeed. But he caused him a loss. The shipping cost the buyer paid was damage caused by the seller, and the seller has to cover it. So when we’re talking about the initial shipping, the shipping paid at the beginning, it all depends on what the seller knew: whether he knew about the defect or not.

23:40 Speaker 6 Why, why

23:41 Speaker 1 only a product

23:41 Speaker 6 [unclear]? If I buy a defective product, do I want the product to reach me more than the seller wants the product to reach me?

23:49 Speaker 1 What does the seller want?

23:51 Speaker 6 He wants the money.

23:52 Speaker 1 The money. Fine, bring me the money and leave the product with me. By the way, if there were, for example, some fee for getting the money to me, and nothing had been agreed upon, it would seemingly fall on the seller, because the seller wants the money. Each expense falls on the person who wants that thing. So the initial shipping depends on what the seller knew. Whether the seller compensates you for it, whether he refunds you that money, depends on whether he knew or didn’t know. If he didn’t know there was a defect, he isn’t supposed to refund it. If he knew, he has to pay. The next stage is returning the product—getting the defective product back to him. The seller certainly has to pay for that, as we said, because he needs it. The third stage is a new product. Now the seller sends you a new product. It doesn’t matter whether you call it an exchange or a new transaction. Who wants the new product now? The buyer. The buyer has to pay for that shipping, and here it makes no difference whether the seller knew or didn’t know. Why does it matter that the seller knew? Because he has to compensate you for damage he caused you. He sent you a defective product, and you paid shipping for nothing. That’s a loss, and he has to pay for it. But you benefit from the new product he sends you. You’re receiving a good product. There’s no reason he should have to pay for that shipping.

25:19 Speaker 7 So that means we pay shipping twice.

25:21 Speaker 1 Once if the seller knew. If the seller didn’t know, you’re right: you pay shipping twice.

25:26 Speaker 7 Shipping twice.

25:27 Speaker 1 Right, right, right.

25:28 Speaker 7 Why?

25:29 Speaker 1 Because the previous time—

25:30 Speaker 7 Why does it have to—No, that’s right.

25:32 Speaker 1 Look, in a sense neither of you is—neither of you is at fault.

25:37 Speaker 7 Half and half. No problem.

25:40 Speaker 1 No, that’s—

25:40 Speaker 7 Why twice?

25:42 Speaker 8 Listen, you returned it, and you also want a new one.

25:45 Speaker 7 No, but I bought it. I didn’t knowingly buy a defective product, just as you didn’t knowingly sell me a defective product. Right? It’s the same thing. So why should I have to—why do I have to compromise here?

25:56 Speaker 8 Compromise? I should have checked the product, you...

26:01 Speaker 7 Right, that’s—

26:01 Speaker 1 By the way, what happens if there are further losses afterward? You bought a defective product and it caused you additional losses. I don’t know, you were working on some insurance matter and it ruined the next thing in line. Does the seller now have to compensate you for everything if he didn’t know? If he knew, there’s room to discuss it. But if he didn’t know, there’s a limit to a person’s responsibility. So he has to return the money that—

26:24 Speaker 7 Fine, but—

26:25 Speaker 1 he received.

26:26 Speaker 7 But here it doesn’t matter that one event is connected to a second event. We’re talking about another event. That’s exactly what I said. If, if—

26:31 Speaker 1 Right, you’re right, you’re right. But delivery is already something else. Once you came, bought the product, paid for it, and received the product—whether in the store or over the phone, it doesn’t matter—the exchange has taken place. Now you want it brought to you? That’s something new. You want the product transported to you?

26:48 Speaker 7 If—wait, if—

26:49 Speaker 1 Let’s say, you know what, let’s take a case like this. It’s similar, yes, though not the same thing. It is the next stage. You bought a product that came unassembled and paid people to assemble it in your home. After they assembled it, you discovered a defect. Is the seller responsible for that payment?

27:07 Speaker 7 No.

27:07 Speaker 1 No. So delivery is kind of the same thing. Once you bought it, that part is over. Delivery is something additional the buyer paid for so it would reach him.

27:17 Speaker 8 In practice, when the—delivery isn’t part of the transaction. The delivery is something external. It’s a separate matter. It isn’t part of it, it isn’t included in... Look, between, between, between...

27:33 Speaker 7 No, no, I didn’t pay you to send me a defective product. Fine, you didn’t know. I didn’t pay for that. I paid—

27:39 Speaker 8 What do you mean, you paid? What do you mean, you paid? Again, you—

27:41 Speaker 7 I paid for delivery, I paid for delivery of a product, and that’s the product you should send me. You aren’t sending me that product.

27:48 Speaker 8 I didn’t send it.

27:49 Speaker 7 Okay, so—

27:49 Speaker 8 I, I told you, listen, that’s not the arrangement. Even if you sent it using a delivery service, I said, “Bring it from here to there.”

27:56 Speaker 7 If I order a particular type of computer from you—

27:58 Speaker 1 I’ll tell you what I mean, and it’s something worth thinking about. In halachah, the case is a purchase where the buyer came and bought the item, picked it up, it became his, and then he had expenses getting it home. He’s asking a good question. When I order a product, I’m not actually ordering a specific product named, uh, Reuven. I don’t care which—bring me a mouse. I don’t care which mouse you bring me from the stock in your store, but when I paid, what I was supposed to receive was a working mouse.

28:29 Speaker 7 At my house.

28:30 Speaker 1 At my house.

28:30 Speaker 7 If it’s an order with delivery included.

28:34 Speaker 1 It doesn’t even matter whether delivery is included or not. Arguably, the thing was never mine yet. When did I pick it up? When it arrived at my house, I picked it up, and it was already defective. Maybe, uh, maybe when I pick it up, then... I don’t know. The delivery happened before that, but that’s the point: the delivery happened before it became mine.

28:54 Speaker 7 I, I, I—

28:55 Speaker 1 Interesting.

28:55 Speaker 7 In your case, where you sent—we agreed that you’d send me a particular product. A product. I didn’t understand that you would send me a defective product. So the whole transaction you’re making with me isn’t what we agreed on. So why do you think I should pay twice for delivery?

29:06 Speaker 1 So let’s divide this in two. First let’s talk about the case in halachah, and then we’ll move to our case. It seems we understand the halachic case, and then we’ll turn to this one. I went to a store, paid for a mouse, took it—no, not a mouse, something bigger. I moved it, made a kinyan on it, it became mine, and then the seller offered me the service. It doesn’t matter who—someone offered me the service of taking it home. Is it clear in that case that I have to pay for the... delivery?

29:31 Speaker 7 Clearly.

29:31 Speaker 1 That’s easier to understand.

29:32 Speaker 7 Clearly.

29:32 Speaker 1 As the buyer. Okay, so in this case there really is something to discuss. We need to think about it. I hadn’t thought about those angles. Now I want to return to our question from the beginning of the class, but before that, let’s finish the last few points. One moment. We talked about rental fees, we talked about delivery fees, reimbursement for delivery, whether he knew or didn’t know. What counts as a defect? We have local custom and a stolen item here. Let’s talk about those very briefly. First, local custom is fairly clear. The Rambam writes it, and the Shulchan Aruch writes it. What defines a defect? Whatever people commonly regard as a defect. The Shulchan Aruch doesn’t go into much detail either. It’s one short line, and you simply have to look at what happens in practice. Is this something people take into account and just accept, or something they return an item over? Now, regarding a stolen item: there are several possibilities. We won’t go into all of them; perhaps we’ll devote a separate class to it, because there are a great many details concerning stolen items. I think that was—actually, we’ve already discussed it. We discussed the concept of stolen items. Here it’s about the seller and buyer. So, there’s a concept in halachah: someone buys a field, and suddenly, after buying it, he hears rumors that there are legal problems with the field—there’s a creditor who wants to seize it, and so on—and he wants to cancel the purchase. Now, he’s already made a kinyan. Remember, you’ve already made a kinyan. The seller tells him, “You’re hearing rumors, fine. As long as they haven’t taken it from you, everything’s fine. If they take it, come to me. Whether there’s a guarantee or there isn’t, we’ll discuss it.” A case with no guarantee is the worst one, right? But that’s what the seller tells him. Now, the Gemara says

31:26 Speaker 1 that if the owner—he went and walked the boundaries of the field. There are different interpretations of what “walked the boundaries” means. According to Tosafos, it means that he walked around the field to inspect its condition. At that point, he can no longer back out. Before making that circuit, he can back out. What’s the idea? The Nesivos Hamishpat explains that when you hear about problems with a product, you have a right, as long as you haven’t used it—there’s a sort of window in between—to return it to the seller because of the rumors you’ve heard. Once you’ve used it, there’s nothing to do; you wait and see what happens next, whether there’s a guarantee or not, and so on. So it turns out—and this happens today too, by the way. Even though today a lawyer checks for legal problems and everything else, that’s before the contract. Often people are tempted to sign a memorandum of understanding because they’re eager to close the deal. They’re afraid the seller will go to someone else. They say, “Let’s write up a memorandum of understanding.” A memorandum of understanding is like a contract in every respect. It also has halachic validity, depending on how it’s worded, as well as legal validity. Now, the person who signed it is bound, and suddenly he hears about legal problems. I don’t know what the law says about that, but halachah says that as long as you haven’t used the property, haven’t moved into the apartment, you can cancel because of rumors like these. Those are the relevant details. Now let’s return to the question we discussed at the beginning of the class. One second. Someone has a warranty, and they ask him for a picture of the product and the break. His break is on the inside, so it won’t show in a picture, and he wants to break it on the outside. That’s a question someone asked me. So there are—I’m going to raise three issues. First, the law of theft. Is theft involved here or not? One second.

33:39 Speaker 1 Is theft involved in this situation or not? There are two details here. First, do they actually cover the defect you have? In the case I dealt with, I asked the person, “How exactly did it happen that there’s a break on the inside but not on the outside?” He gave me his answer. I checked the terms of the insurance and told him, “The insurance doesn’t cover that. If you break it on the outside, you’re stealing from them.” So that’s forbidden because of theft. Another point: we said that when you discover a defect, who does the product belong to?

34:09 Speaker 9 The seller.

34:10 Speaker 1 The seller. Why are you breaking the seller’s product? In other words, in either of those situations—if the seller isn’t supposed to cover it at all, or if the product is supposed to go back to him—you may not do anything to it. But what happens when the item—the internal break is already covered, and the seller doesn’t want the product back? He tells you, “Send me a picture, and I’ll send you a new product. I don’t need the old one back.” Then there’s no issue of breaking something that belongs to him. And the internal break is also covered by the warranty. There’s no issue of theft here. Let’s talk about two more issues.

34:42 Speaker 9 If there’s a claim of theft, how do you rule that out? What do you do about it?

34:46 Speaker 1 Right, that’s what I’m saying.

34:47 Speaker 9 No, even if, even if there’s no insurance. Why, why, why—

34:50 Speaker 1 No. If it’s covered by the warranty, then I’ll send you a new product, and I don’t need the old one. So here we need to know whether it’s covered by the warranty or not. We discussed the issue of theft. We said that if it involves theft, it’s certainly forbidden. What if it doesn’t involve theft? There’s the issue of getting a taste of theft. It isn’t stated explicitly about this case. What the Alter Rebbe does say explicitly concerns someone whose possession was stolen from him, or taken from him, or whatever the case may be. His possession is now with someone else. May he climb in through the window and take it? It’s his, one hundred percent. The Alter Rebbe says it’s forbidden. Why? Because you’re getting a taste of theft. You’re entering like a thief. A baraisa says, “Break his teeth and take it from him.” In other words, go to his home openly; don’t come like a thief. So perhaps the same idea applies here. What’s the problem with coming like a thief? You get a taste of theft, and that could lead you to do things like that in the future. Here too, when you take a product and break it, it’s a kind of deceitful act. Now, this needs a qualification. There’s a case of someone going through customs who knows they charge him double for every item—they’re thieves. The Sma, the Sefer Me’iras Einayim, says he may say he has half the amount so that he won’t suffer a loss. He’s saying something false, but in that situation it’s permitted because he’s protecting himself from a loss. So here, if otherwise you won’t get your money back in any way, perhaps we wouldn’t be concerned about this issue of getting a taste of theft. But in principle, there is something a little problematic about it. A third thing—I don’t know whether you thought of this or not—is bal tashchis, the prohibition against needless destruction. If something is still usable, then

36:38 Speaker 1 the Alter Rebbe says you may not break it; you’re destroying it. Unless it’s something that provides hardly any benefit. An example in halachah is an old tree that barely bears fruit, and so on; in that case, there is room to permit it. Accordingly, if this product still works—it has an internal break, but it still works—and you break it on the outside and ruin it, then that would seemingly be forbidden because of bal tashchis. But if none of these problems apply, then seemingly it’s permitted.