Faulty Goods – Who Gives the Refund?

Question

Yankel bought a beautiful wall clock in a sealed box (the clock
face was visible through the plastic wrapping). When he arrived home,
he unwrapped the clock and inserted a battery. The clock hands
remained still. He checked the battery, which was in perfect working
order. He took the clock back to the shop and asked for a refund. The
shopkeeper agreed that the clock was faulty. However, he claimed that
the manufacturer was responsible – and not him – and gave Yankel
the address. Yankel argued that he bought the clock from the
shopkeeper and not from the manufacturer. Who is right?


Answer

The Shulchan Oruch (Choshen Mishpot 232:18) rules that if a vendor
sold an item with a blemish which was unknown to him and as a result
the item was destroyed or became useless, he is obligated to give the
purchaser a full refund. If the vendor sold goods that were
manufactured by others, he still remains liable for any fault in the
goods that he sells (unless he is just the manufacturer’s agent). He
is the one who has to deal with the manufacturer. The exception would
be if it was the custom for the purchaser to inspect this type of
goods on receipt and he failed to do so. As a result, his subsequent
use of the faulty goods led to their being rendered useless. In this
case, the Shulchan Oruch places the responsibility on the purchaser
since he was negligent. The Remo is of the opinion that even under
these circumstances the vendor retains responsibility. The fact that
the vendor has been cheated – albeit unintentionally – does not
allow him to do the same to the purchaser – even if he also does so
unintentionally! The purchaser is entitled to receive goods that are
fit to fulfil the specific function for which they are sold.

It therefore follows that any fault which people in that particular
location consider to be enough of a blemish to render a sale invalid,
is considered grounds for returning the goods and receiving a refund.
Should a particular purchaser have his own personal stringent
requirements, which would not seriously disturb other people, these
would not constitute grounds for annullment of the sale unless he had
made a specific condition to this effect prior to the sale. The basic
assumption is that all transactions are conducted on the basis of
local custom (Ibid. 232:6).

However, if the fault is easily discernible from the outside and it
is usual for potential buyers to make a visual inspection prior to
purchase, failure to do so removes the purchaser’s rights. Through
buying without examining the goods, he is considered to have foregone
these rights. The exception to this rule is if he buys on credit
(without making immediate payment). Such action is viewed as being
equivalent to making a condition that he can still return the goods if
he only discovers a visible fault later on (see Sema, Note 10 and
Pischei Teshuva, Note 1). Again, what types of goods are usually
subjected to external inspection prior to purchase is dependent on
local custom.

Once a particular transaction has been entered into the vendor’s
official accounts, it may be difficult or impossible for him to give a
cash refund. Under these conditions, the purchaser would have to
accept a credit note instead of cash. However, he is entitled to use
the credit to buy any goods sold by the vendor and can not be
restricted to taking a replacement for the faulty goods returned.

The vendor may offer a cash discount to compensate for the fault.
It is entirely dependent on the purchaser whether to accept such an
offer. The original deal is deemed invalid. What is on offer is
something new.

THEREFORE, since the fault was not noticeable
from the outside, Yankel is entitled to a full refund. Let the
shopkeeper sort it out with the manufacturer!THEREFORE, since the
fault was not noticeable from the outside, Yankel is entitled to a
full refund. Let the shopkeeper sort it out with the manufacturer!