Parshas Shlach

CHECKING OUT THE MERCHANDISE

By: Dayan Yehonassan Dovid Hool Shlit”a 

This week’s  Parshah details the disastrous mission of the meraglim – the spies that Moshe sent to scout out the Land of Israel, and the catastrophic repercussions of the bad report that they delivered. The whole episode begs an important question. If, as Moshe tells us (Devarim 1:23), he thought it a good idea to send them, why then did he criticize Klal Yisroel for requesting the mission? Was it a good idea to send them or a bad one? 
 
Rashi (ibid.) gives an explanation by offering a parable. A man agrees to sell his donkey to his friend. When the friend asks if it is a reliable donkey, he replies in the affirmative. The potential purchaser presses him further, inquiring whether he may “test-drive” the donkey to see if it functions well in mountainous regions as well as in the valleys. When the seller readily agrees to all the buyer’s requests, the buyer immediately purchases it. He reasons, if the seller has no reservations about test-driving the animal, it is a sure sign that there are no hidden problems. So too Moshe. He agreed to let the people spy out the land, but he criticizes them for not immediately being reassured and passing up on the idea.

Let us examine for a moment how this concept relates to everyday financial purchases. Someone who is interested in buying a car is offered to test-drive it before purchase, but he forgoes this right and buys it without examining it. Immediately afterwards he discovers a pre-existing defect in the car and wants to retract on the deal. What are his rights according to Halachah? 
 
Caveat Emptor (Latin: “let the buyer beware”) is an ancient principle in the law of commercial transactions which effectively means that the buyer purchases at his own risk in the absence of an express warranty in the contract. The only exception was if the seller actively concealed latent defects or otherwise made material misrepresentations amounting to fraud. 
 
As a maxim of early common law, the rule was well suited to buying and selling carried on in the open marketplace or among close neighbors. However, the increasing complexity of modern commerce has placed the buyer at a disadvantage. He is forced to rely more and more upon the skill, judgment, and honesty of the seller and manufacturer. Many legal systems have recognized this, and modern statutory law governing commercial transactions now protects the buyer by making various exceptions to the principle of caveat emptor. In many jurisdictions, the law requires that goods must be of “merchantable quality.” However, this implied warranty can be difficult to define and enforce and may not apply to all products. 
 
Halachah has a very different approach. When a sale or similar transaction is made, it is assumed that the goods or services supplied are free of any defects. If a buyer discovers a defect in the goods he purchased that he was unaware of at the time of sale, he has the right to retroactively annul the transaction; he can return the goods and get a full refund. This principle is called mekach ta’us – a mistaken purchase. 
 
Mekach ta’us is not a penalty imposed upon the seller for misleading the buyer. It is simply a rule that a buyer need not accept a purchase of defective goods. As such, it makes no difference whether the seller deliberately deceived the seller as to the quality of the goods or whether the seller himself was unaware of the defect. In all circumstances the seller can return the goods and insist on a refund. 
 
What about a case in which the buyer had the opportunity to check the merchandise but waived his right and bought it anyway – the scenario that Moshe was hoping would occur with Klal Yisroel? 
 
The Maggid Mishnah (quoted in Sm”a, 232:10) rules that if the buyer was able to test or taste the merchandise before purchase but did not do so, he cannot annul the transaction if he discovers a defect that he would have immediately noticed had he tested it before purchase. Maharsha”m in his work Mishpat Shalom explains that by not checking, the buyer has agreed to accept any apparent defects, regardless of their nature. 
 
Nonetheless, there are many limitations to this rule. For example, the Maggid Mishnah is describing a case in which the seller made no comment himself about the merchandise. However, if the seller reassured the buyer that there are no defects, then the buyer is entitled to rely on the seller’s assurance. If he subsequently discovers a defect he may retract from the deal (Maharashda”m ch. 385). Furthermore, by not checking beforehand the buyer is assumed to be waiving only defects that are predictable. We cannot assume however that the buyer is prepared to accept also a completely unexpected defect (Divrei Mishpat 232:3:2). 
 
In addition, if the buyer hasn’t yet paid for the purchase, he may retract upon discovering the defect. As long as the money is in his pocket, the fact that he has not bothered checking the merchandise is not alone sufficient grounds for assuming that he is willing to accept all apparent defects. Holding the money is the biggest proof that he has not waived his rights (Mishneh L’melech, hilchos mechirah 15:3). 
 
Finally, the ruling of the Maggid Mishnah is actually disputed by many authorities (e.g. Aruch Hashulchan 323:6). They permit the buyer to retract upon discovery of a defect even if he passed on the opportunity to examine the merchandise before the transaction. The fundamental right to refuse to accept faulty goods trumps all but an explicit agreement to accept defective merchandise. 
 
All in all then, the Halachah does much to protect the rights of the buyer with regard to defective goods. However, the old saying still rings true, if not legally then simply as sound advice. Caveat Emptor – buyer beware. So you might ask why then did Moshe want Klal Yisroel to forego an inspection of ‘the merchandise’ they were about to buy? Because when Hashem is doing the selling, you can be sure there are no defects!

This article has been written by The Bais HaVaad L’Inyonei Mishpat and is meant for awareness purposes only. A slight variation of the facts can significantly change the Halacha. For Choshen Mishpat related questions or services please contact The Bais HaVaad office located on 32 Fifth St. in Lakewood N.J. or call 1.888.485.VAAD(8223) or email [email protected] For articles and for other forms of Choshen Mishpat content please visit www.BaisHaVaad.com