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Past Articles:
MEKAH TA’UT – TRANSACTIONS MADE IN ERROR

By: Rabbi Daniel D. Levy

1

 

                      If a customer fails to inspect the   merchandise before making the purchase,
               can he later void the sale if he discovers      
               that the merchandise is defective?  

A customer may void a transaction in any of the following situations:

a.He inspected the merchandise but inadvertently overlooked a certain defect;

b.He did not have the opportunity to inspect the merchandise before making the purchase;

c.The seller persuasively presented the item as perfect and free of defects, such that the customer did not feel any need to inspect it;

d.It is customary not to inspect the merchandise (for example, customers do not ordinarily test out cameras and other electronics before purchasing them);

e.The defect is very rare, and customers do normally anticipate it when inspecting such an item before purchasing it.

(Rabbi Ari Marburger, Business Halacha, pp. 62-63)  

2

 

                      How significant must a defect be for the
               buyer to be allowed to void the sale?   

The Shulhan Aruchrules that any imperfection which renders the item defective according to the standards of that locale suffices to void the sale. Meaning, if most people in that area would return the item because of the defect, then the transaction may be voided. Simply being dissatisfied with the purchase, however, does not qualify as a mekah ta’ut.(Needless to say, one should consult a halachic authority before taking any concrete action regarding this or other monetary matters.)  

3

 

               Is a seller obligated to disclose
               a defect in an item he is selling?  

Halachah does not follow the common rule of “caveat emptor” (“buyer beware”), which imposes upon a customer the responsibility to inspect the property or object he purchases. According to halachah, all purchases are presumed to have been made with the expectation that the merchandise is free of defects. Therefore, selling a defective item without informing the customer of its flaws constitutes deception (genevat da’at) and violates a halachic prohibition. The customermay then void the sale after discovering the defect and demand a full refund (Hoshen Mishpat233:3). This applies regardless of whether the seller intentionally withheld the information, or if he was unaware of the defect.

4

 

               If after moving into a newly-purchased
               home one discovers that the person
               next door suffers from severe mental
               illness and creates a loud ruckus
               every night, may he void the transaction?    

There is a debate among the halachic authorities as to whether a flaw that is externalto the sold property – such as unruly neighbors –
is grounds for claiming a mekah ta’ut.A competent halachic authority or Bet Dinshould be consulted in such a case.

5

 

               Do these halachotapply
               to transactions involving non-Jews?   

The laws of mekah ta’utare applicable regardless of whether one transacts with a Jew or with a non-Jew (Hoshen Mishpat228:6; Shulhan AruchHarav). 

6

 

               If somebody is selling a property for
               $1 million, unaware that the market value
               is $2 million, may a person who is aware
               of the market value buy the home for
               just $1 million?    

Purchasing a property for a drastically lower price than its market value when the seller is uninformed constitutes theft and is prohibited (Rabbi Akiva Eger, based on the Ramban). After the fact, however, if the property was purchased, the seller cannot void the transaction upon learning that he received less than the market value. 

7

 

               If a buyer knows he is being overcharged,
               may he purchase an item with the intention
               of later demanding a refund? 

If the buyer and seller are both clearly aware that the price is inappropriate, then there is an implicit agreement to accept the price, and that the buyer waives his rights to claim ona’ah
meaning, thathe was charged unfairly (Ketzot Hahoshen, Aruch Hashulhan227:9). If, however, the seller thinks the buyer is unaware that he is being charged unfairly, and the difference between the cost and the market value exceeds 1/6ththe value, then the buyer may thereafter invalidate the sale (Rama, Hoshen Mishpat227:7). However, the buyer must declare ahead of time in the presence of witnesses that he intends on making such a claim (Bah). (Business Halacha, p.39).

8

 

               If a customer purchased food at a bakery,
               and somebody later informed him
               that he had seen insects crawling
               on that piece of food before the purchase,
               may he return it and demand a refund?  

Since most people would not eat food that had come in contact with insects, the customer make claim mekah ta’utin such a case and void the transaction.

9

 

               If a person who buys a property notices
               a serious structural defect in the
               building several days after moving in,
               may he void the transaction and demand
               a refund from the investor who had  bought and “flipped” the property?  

The investor who flipped the property must refund the buyer’s money, and may then take legal action against the original seller. If the seller refuses to reimburse him, the “flipper” must suffer the loss, even though he acted in good faith. 

The halachic authorities debate the question of whether an “as is” clause in a contract, wherein the buyer accepts the property in its current state even if there are defects of which he is unaware, is halachically binding. Most authorities maintain that universal waivers are not effective according to halachah, and thus a buyer can claim mekah ta’uteven after signing an “as is” clause. The Radvaz, however, argues that if it is commonly accepted to honor such clauses, then it is accepted by halachah, as well (Business Halachah, pp. 54, 63). 

10

 

               If one experienced trouble with
               a newly-purchased car, may he void
               the transaction on the grounds
               of mekah ta’ut?     

If the buyer had the car inspected before the purchase, and withina week of the purchase he discovered a significant defect – such as a problem with the engine or transmission – then he may void the transaction. (It should be noted that since the buyer had derived benefit from the car, he must pay the seller the market value for the miles he drove before he returned it to the seller.) If, however, only minor issues arise, such as problems with the trunk button or gas gauge, the sale cannot be voided, but the seller is responsible for repairing the car.