The Sephardic Heritage Museum Explores THE LIFE AND ESCAPE of the JEWS OF SYRIA

Past Articles:
A TUNISIAN CONTACT

By: Rabbi Max Sutton

Shraga and Fivel, two prominent members of a well-known Hassidic sect, served as the primary distributors of tallitot for their community. As per request of the Grand Rebbe, the two distributors were required to manufacture all the tallitot in Tunisia. This requirement of the Rebbe was implemented to avoid tallitot being made from wool and linen, a severe restriction by Torah law known as shatnez. Since no flax was grown in Tunisia, it was, for decades, the ideal place for purchasing shatnez-free wool tallitot. Yaakov, a member of the Tunisian Israeli community, was the exclusive importer. He purchased the tallitot from Arab owned factories in Tunis, and sold the merchandise to Shraga and Fivel. After many years of doing business together, a major crisis brought a halt to operations. Rumors spread in the market that shatnez was being manufactured in Tunisia, prompting Shraga and Fivel to inspect their stock of tallitot. While they found that their stock was free of shatnez, nevertheless, the tallitot were not 100% wool. Their stock of tallitot originally valued at $250,000 had a 40% polyester content, making the merchandise completely unsalable in their circles. They demanded of Yaakov that he refund their money because of the defect. They explained that the purchase order they placed with Yaakov was specifically for 100% wool. Yaakov responded that he had reminded Shraga and Fivel from time to time that it was unsafe to travel to Tunisia, and as a result he was unable to oversee quality control. With the goods going from the port directly to Shraga and Fivel, Yaakov claimed that it was their responsibility to do periodic laboratory inspections. Yaakov asserted that since he long ago paid the Arab makers in full, the six months of stock was no longer returnable.

How should the Bet Din rule? In favor of Yaakov the Importer or Shraga and Fivel the Retailers, and why?

TORAH LAW

According to the ruling of the Shulhan Aruch, when an item is purchased with a concealed defect that can potentially ruin the product, the buyer is entitled to return the product for a complete refund, even after it becomes ruined in his possession. This law is applicable even if the buyer could have inspected the product and prevented it from becoming ruined. Since the defect was concealed, the seller must bear the loss. Generally, it is the seller’s responsibility to ensure that the product sold is not defective, and if the seller fails to do so, he must bear the consequential damages.

If, however, there is a prior understanding between the buyer and seller that the seller is not responsible for the quality control of the product, the above ruling is not applicable. In such instances, if the product becomes ruined because of the buyer’s failure to inspect it in a timely manner, the buyer is not entitled to reverse the purchase. Since it was the buyer’s sole responsibility to check for any defects, failing to do so ultimately caused the product to spoil, and the buyer must sustain the loss.

In a classic Talmudic case recorded by the Shulhan Aruch, a day trader of livestock sold an ox that did not have teeth, and the ox, unable to eat, died of starvation in the buyer’s possession. Since the seller was only a day trader and did not come into contact with the ox, he was not required to inspect it for any defects. The buyer’s failure to inspect the ox at least during feeding hours is what caused the ox to die. Had the buyer checked the ox and detected that it had no teeth, he could have notified the day trader, who in turn would have been able to return the live animal to its original owner. The same ruling is applicable to any buyer who is responsible to inspect a product. Hence, if because of a buyer’s delay to inspect the product it can no longer be returned, the buyer is to sustain the loss.

Interestingly, some opinions dispute the ruling of the Shulhan Aruch. These other opinions hold a seller accountable even if it was solely the responsibility of a buyer to inspect his purchase. While this opinion offers a different explanation to the Talmudic case of the day trader who sold an ox without teeth, nevertheless, the ruling of the Shulhan Aruch prevails. This is especially true in instances in which a defendant is of Sephardic origin, as he may rely on the ruling of the Shulhan Aruch and withhold payment.

The above exemption, extended to a seller not responsible for inspection, is strictly in the event he was unaware of the defect prior to the sale. A Bet Din will impose an oath on a seller to confirm he did not know that the item he traded was defective before absolving him of payment.

Too Little Too Late

Our Bet Din absolved Yaakov of payment for the defective tallitot he sold Shraga and Fivel. Since both parties agreed that the inspection of the tallitot was the buyer’s responsibility, Yaakov, the seller, is exempt from payment. As mentioned in Torah law, had Shraga and Fivel periodically tested the tallitot they could have detected the polyester content and returned the defective wool/polyester tallitot to Yaakov. Yaakov in turn would have returned the tallitot to the Arab maker in Tunisia for a refund. Since Shraga and Fivel delayed inspection for six months, they caused the tallitot not to be returnable. After a six-month delay and having paid the Arab tallitot maker in full, Yaakov simply had no leverage on the factory to demand reimbursement for the defective merchandise. Nevertheless, by rule of the Shulhan Aruch, Yaakov is obligated to take an oath that he was completely unaware of the polyester content prior to notification. Our Bet Din chose to absolve Yaakov of such an oath, and in exchange, we absolved Shraga and Fivel of payment of a small balance due to Yaakov. The consideration to absolve Shraga and Fivel of the small balance also satisfied the differing opinion to that of the Shulhan Aruch, which held Yaakov accountable for complete reimbursement.