By Rabbi Yair Hoffman for 5tjt.com
The following is a true incident. The names and genders may have been changed to protect the innocent. Regardless, there is much halacha that may be learned here. Remember: The aim of the yavanim was lehashkicham Torasecha – to cause us to forget Torah. We should, therefore, always look at the world through Torah eyes.
THE BIRTH OF THE JELLY DONUT
The dough is made and then put in the machine. The machine spits out identical balls of dough, the same size and weight. The baker puts the balls of dough on wooden pallets and places them in the proofer. From the proofer, the semi-baked doughnuts are then put in the fryer. The baker then injects the jelly into the side or top of the donut.
This is how it happens in its ideal form – in a perfect world. Sometimes, but very rarely something else happens. Sometimes, he will miss one of the donuts in the column or row. It will not get the injection of jelly.
WHAT HAPPENS WHEN YOU PURCHASED IT?
When one purchases this rare, unjellied jelly donut it is known as a mekach ta’us – an erroneous transaction. This means that the person who buys an item, any item has a legitimate right to expect that the item should be free of any significant blemish or defect. Since this is true, the buyer has the right to declare the sale to be null and void. He also has the option to retain the validity of the sale. All this is found in the Rambam, Hilchos Mechira 15:6, and in the Chosahin Mishpat section of the Shulchan Aruch (232:7). Since the buyer is requesting a refund, the seller should refund the donut cost because it was a faulty sale.
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PROTOCOLS OF THE REFUND
Now let us say that you entered into the bakery and purchased that jelly donut for Chanukah. The donut is defective – it is missing the jelly. You decide to send in your son, who just got his driver’s license.
The woman behind the counter says to him, “I am sorry, but you must bring in the plain donut first in order to get a refund.”
Your son argues, “Look, you should have checked it out before you put it in the display as a jelly donut. And what do you want me to do? I should bring in a half-eaten donut that is missing its jelly?”
She responds, “Yes – bring it in.”
Who is correct? With whom does the Halacha lie?
ANSWER MAY BE IN A MISHNA
It seems that the Mishna in Bava Basra (92a) may indicate the answer. The Mishna tells us that if one sells produce to someone else and it is planted but they do not grow, the seller is not responsible to refund the money. Rabbi Shimon Ben Gamliel says that if one sold inedible planting seeds and they do not grow, the seller is responsible for them.
ISN’T THIS OBVIOUS?
The Shita Mekubetzes quotes the Ran who asks: Isn’t this patently obvious? Why would anyone assume otherwise, it is clearly a case of Mekach Taus – an erroneous sale. There is no need for this to appear in our Mishna!
MISHNA IS TEACHING US HOW THE SALE IS REFUNDED
The Ran answers that Rabbi Shimon Ben Gamliel, in actuality, is not teaching us that it is a Mekach Taus – an erroneous sale. Rather, he is teaching us the protocols of refunding the sale. The seller cannot claim that he will only refund it if the seeds are returned. He must return the money and worry about getting the seeds back on his own.
The Shulchan Aruch (CM 232:20) rules like Rabbi Shimon Ben Gamliel, but does not discuss the protocols of refunding the sale. It would seem that if the Ran is the final ruling in halacha, then our bakery lady is wrong and the bakery should refund the money. The Ritvah and the Meiri also agree with the Ran’s position. Indeed, the Ritvah extends the ruling to all business dealings – including jelly donuts.
ARE THE CASES THE SAME?
One may perhaps raise the argument that the Ran only gave this explanation in our Mishna’s case, where the seeds are no longer extant. However, when the item is still in existence, perhaps the refund protocols are different! This counter-argument is, in fact, raised by the Raavad in Hilchos Mechira (16:3). However, the Maggid Mishna proves that the Rambam (ibid) holds otherwise.
SHOULD HAVE CHECKED THE DONUT
The Shita Mekubetzes quotes the Tosfos HaRosh in explaining that in fact, the seller should have checked the merchandise the make sure it was what it was purported to be.
RETURN OF THE BAKERY LADY
But now what? Can’t the bakery lady claim, “Kim Li Kehani Poskim like the Raavad? I am certain that the halacha is like the Raavad in this regard and since I am holding onto the money (Muchzak) , what I say goes!”?
The answer to this is, “Yes, she can. However, if you paid by credit card there is nothing in ‘Muchzak’ which forbids you from instructing the credit card company not to pay it.”
The moral of the story? Always pay by credit card if you can.
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22 Responses
Give me a break
The obvious question comes to mind – why believe the claimant? Money matters require two kosher witnesses. And in any case, what if a sign was posted as to the rules of sale.
it is ridiculous that Rabbi Hoffman end by using the US H,older in due course laws of credit transactions in telling the consumer to challenge the non-refunded transaction on the credit card!
#1 The son who went into the bakery for a refund has no privity of contract with the bakery and is not entitled to demand a refund. The son would have to have legal papers appointing him as agent for the purchaser and if not 18 may not qualify as an agent under the law.
#2 The protest to the credit card company can only be for the value of one defective donut, not the actual transaction amount. The bakery is entitled to quantum meruit, to be paid for its performed labor, i.e. the properly formed and filled donuts.
#3 Only a resident of Chelm would spend the time and gas money to go and seek a refund for one donut.
If Rabbi Hoffman wants to teach torah, that’s fine, but he should confine himself to his area of expertise
What if there was no sign stating that they were jelly doenuts, but 100,s of doenuts are being sold, of all different types?
CTLAWYER,
“If Rabbi Hoffman wants to teach torah, that’s fine, but he should confine himself to his area of expertise”
This post has a shockingly nasty tone that your posts never usually have. Is everything OK?
Purim Torah for Chanukah?
CT,
This is a very legit Torah discussion (i.e. though more in theory – on the other hand, I heard doughnuts were selling at some places in Brooklyn for $5) and has nothing with the “law”.
Hence I don’t understand your issue.
Very nice. Shkoyach Rabbi H
I think CTLawyer’s point is that the article missed some considerations, namely, Dina D’malchusa (as applied to credit card transactions) and Minhag Hatagrim (the accepted “custom” of buyers and sellers).
Minhag Hatagrim is “buyer beware”. The “buyer beware” rule essentially means that the purchaser will take the property as he/she finds it, in whatever condition, whether good or bad.
The exceptions to this rule are limited and occur mostly in situations where there has been some sort of misrepresentation by the seller, that is negligent or fraudulent.
CTLawyer framed his comment that “If Rabbi Hoffman wants to teach torah, that’s fine, but he should confine himself to his area of expertise”.
That seems objectionable – as pointed out in some comments.
We all agree that Torah observant Jews are governed by Halacha and Mispatim of Choshen Mispat. Therefore, the halachic discussion is relevant and interesting. It demonstrates that this case is an exception to the usual rule of “Hamotzei Machavero Olov Ha’Raya” (the “prove it” onus is on the claimant)!
However, I do agree that the article should have added a caveat. That Torah allows the consideration of civil law and the accepted rules commonly practiced.
I bought a sheitel. The hair was defective and after a few days the sheitel turned neon purple and clumped into a ball, making it non-wearable.
In frustration, I threw away the sheitel and cried over the lost money I paid.
When my husband came home from kolel, he told me to ask the sheitel-macher for a refund. He said that this was a mekach ta’us!
I marched over to the sheitel macher and demanded a refund.
She told me, bring me the sheitel so I can verify your claim. I said the sheitel is in the hands of the sanitation department and probably in a landfill.
I paid by credit card or check. Can I stop the payment of the credit card or have the bank issue a stop payment on the check?
This isn’t a donut of a few dollars. It’s a sheitel of a few thousand dollars paid from keli kodesh salary!!!
I want my money back! This article is defective!
The samples cited are examples where the item is no longer extant.
It assumes that the seller believes the buyer that the seeds were defective.
Here the seller is basically saying that I’ll believe your claim after I see the doughnut that still exists.
Can I use the Jelly-free donut for lechem mishnah?
Ohevet Yisroel, you asked if one can use a donut (or cupcake, danish, large pretzel or large cookie etc) for lechem mishne?
A baked item that the majority of the liquid ingredients is not water (e.g., eggs, oil, juice, honey or liquefied sugar), then the bread is considered “cake,” and the appropriate blessing is Mezonot. (Shulchan Oruch 168:11).
One should not l’chatchila use such a loaf or egg-matzos for Lechem Mishneh unless one plans on eating a significant amount of this bread during the meal (approximately eight ounces), and intends to be satiated by the bread and the other dishes served during the meal – “keday seviah”. (Shulchan Oruch 188:10; see Seder Birkat Hanehenin 2:2).
According to the opinion of the Bet Yosef – whose opinion is followed by the Sephardim – if bread has a significantly sweet taste, even if it contains more water than other liquids, its blessing is Mezonot (Orach Chaim 168:7). Those who follow this opinion should not use sweet challahs unless they eat the required amount to say the Hamotzie blessing.
HOWEVER – In the event one does not have any bread one may use two whole portions of pat ha-ba be-kisnin (mezonot-like bread from the five species of grain – wheat, barley, oats, spelt, or rye), such as cake, cookies, danishes, or pretzels (Shmiras Shabbos K’hilchosa vol. 2 55:16, and R. Moshe Feinstein zt”l, cited in The Radiance of Shabbat p. 78 note 13; see also OC 168:7 and MB and Bi’ur Halakha ibid).
Rebetzin’s question is interesting. She is lacking a proof based on her own fault (namely, not learning halokhos of business while being highly educated in other areas, and not having patience to wait for her husband to come home). But credit card may believe her … Then, the question is – are we authorized to use credit card process? It is not a court, but still an administrative procedure that attempts to identify who is at fault.
Maybe time for having a peshara and getting to a half. Note that you should not fully forgive the seller – then he will continue skipping donuts and selling shoddy sheitels to others.
Here is a situation where the claimant says mekach ta’us and the stakes are more than a donut:
Newlywed couple. Husband nebech dies, no children, but… husband has a brother – however brother’s whereabouts are unknown (impossible to find him), wife would be agunah (because unable to do chelitzah).
Wife claims that husband was a shoteh and therefore the marriage was a mekach ta’us, hence resulting in no zika for yibum/chatizah, she should not be an aguna.
Without substantial proof of her claim, (such as witnesses able to substantiate her claim that her husband was a shoteh from when the kiddushim took place), would she EVER be believed?!
The discussion here is more than just donuts!!
Well, the jelly-less donut would prove nothing. It would be half-eaten, and the seller could claim that the jelly was in the eatem half. And if this argument is wrong, why bother stopping the cc payment? Just buy another donut, eat thehalf with the jelly, and show the rest, knowing that your claim is just!
CTLawyer is, as usual, mistaken. His borderline anti-Semitism, masquerading as pompous disdain for orthodox Jews, leads his brain astray.
1. The son is not involved. He’s merely conveying the message from his parent. The parent is demanding the refund. CTliar is aware of this, but has chosen to ignore it.
2. The transaction was for a single donut, hence that will be the amount of the refund. There were no other donuts in the sale. Ctliar needs to pay more attention to the facts.
3. Irrelevant.
As to CTliar’s first/unnumbered assertion, it is incorrect. There is an agreement with the credit card company to provide for refunds in precisely this type of case.
What about onaah? How much gehinom does the baker get for for gouging his prices? (The non kosher donuts are $2 max. Having a hechsher shouldn’t justify charging $6)
People should understand that the baker and other stores need to adjust prices to a new reality of everybody paying with plastic there are fees and costs involved.
As a merchant I try to be honest and scrupulous. I think it is wrong to suggest people do a chargeback in not clear circumstances. Remember, either the merchant or the cardholder will eventually be smeared with a bad reputation if this happens often.
The son, as agent of whomever the wronged customer was, could claim that the jelly-less donut was eaten anyway, but that it was then a situation of duress – it had to be eaten because it was the only donut available.
For those that mock and think this was a”purim torah”, I challenge you:
Have you ever bought milk that was spoiled, or meat, fish, produce that was rotten?
The question discussed here is, are you mechuyav to shlep the product back to the store (even if it is smelly or you keep forgetting to take it or you threw it away because who wants to keep spoiled products in their fridge) to prove that it was actually spoiled, or are you believed on your word, and the storekeeper must refund you even without substantiating the claim?
How about the flowers you bought for shabbos, and the petals fell off right at licht bentchen?
The question here is is the unvaxed doughnut is eligible for a refund.
If that doughnut decided not to take the jelly vaccination because of religious observance, then the store might not want to touch it afterwards. That would leave the buyer with no refund.