YAHALOM SEMINARY Bridging the Gap

Past Articles:
A JAGUAR JALOPY?



Joe contracted to purchase a used Jaguar from Harry’s Quality Used Cars. Harry, a well-known dealer of used Jaguars, maintained a good reputation in the market. During their verbal negotiations of the sale, Harry assured Joe that the car was in nearly mint condition. When Joe inquired about the 2009 Jaguar’s miles per gallon, Harry responded that he estimated it at 18 or 19 miles per gallon. Additionally, Harry told Joe that he personally inspected the car and it did not use a lot of oil. Since purchasing the car, Joe drove it for over three months for a distance of some 1800 miles. According to Joe, from the first week it was evident that the car was a gas guzzler, and it had a severe oil issue, as it seemed to consume nearly two quarts of oil a month. Joe demanded that the sale be reversed and said that he expected to be refunded in full. Harry did not deny any of the allegations, and even acknowledged their conversations regarding the gas intake and oil consumption. Harry was nevertheless unwilling to refund Joe his money three months after the purchase.

How should the Bet Din rule? In favor of Joe or Harry, and why?

TORAH LAW

According to the ruling of the Shulhan Aruch it is forbidden to deceive a customer when selling him a product. This prohibition is an explicit verse in the Torah and includes types of deception such as price fraud, and the deliberate sale of defective merchandise. As a rule, in such instances, the sale is reversed and the money is refunded to the victim. Additionally, not only is a seller a potential offender, a buyer as well is forbidden to mislead a seller with r egard to the price or quantity of the merchandise.

By rule of the Shulhan Aruch a sale is to be reversed on a defective item unless the seller clearly tells the buyer of the exact defect prior to the sale. Simply alluding to the fact that a defect exists is insufficient on the seller’s part, and the buyer may reverse the sale, claiming he was unaware of the defect. Another common scam is when a seller actually mentions the defect briefly, but adds to his words another defect or two that obviously do not exist. When the buyer discerns that some of the defects mentioned do not exist, he assumes that the item free of all defects. Hence, although the seller mentioned the defect, the sale is reversed since the buyer was misled. This kind of dishonesty, along with other forms of corruption, render the sale null and void.

A buyer has the legal right to return a defected item to a seller even if the seller was honestly unaware of the defect. However, at times, a defect is found in an item immediately following a sale, and it is impossible to determine whether the product had the defect at the time of the sale, or whether the defect came about only after it was purchased. In such instances the Shulhan Aruch rules that it is the responsibility of the buyer to prove that the defect pre-existed the sale. Since the defect was first discovered while in the possession of the buyer, we assume that is where it first developed. Regarding the sale of a used car, this aforementioned law is very pertinent. Often a buyer will thoroughly test a used car prior to the purchase, and nonetheless numerous defects come about shortly after he takes possession. Although a buyer will commonly accuse the seller of being a crook, very often there is no basis for his accusations, and it is likely that the old car purchased took a recent turn for the worse. Hence, since the defect was first discovered in the buyer’s possession we assume that is where it first developed.

By rule of theShulhan Aruch a buyer is entitled to return a defected item to a seller providing he does not use the item after he becomes aware of the defect. Once he uses the item after he is aware of the defect he consequently forfeits his claim. Since the defect allows the sale to be reversed, the buyer is required to return the item to its original owner in a timely manner. By continuing to use the item, the buyer is indicating that he accepts the item as is, and he may therefore not nullify the sale.

VERDICT Keep on Driving

Our Bet Din ruled in favor of Harry the used car salesman, and validated the sale of the used Jaguar. As mentioned in Torah law, since Joe continued to drive the car for months after he detected a severe oil leak, he forfeited his claim to reverse the sale. Since potentially the car could have been returned to Harry, driving it indicated Joe’s acceptance of its defects. Furthermore, although Harry did not deny the allegations that the car presently has a severe oil leak, there is a fair possibility that at the time of the sale the car was in better working condition, and that an oil leak developed only after the purchase. The same applies to the discrepancy in the mileage, which can be a result of the oil leak and many other factors unrelated to Harry. By Torah law, the burden of proof rests on Joe, who must prove that Harry mislead him and sold him a jalopy. Nevertheless, our Bet Din instructed Harry to clean the fuel injection and fix any leaks in the car, so as to maintain his fine reputation and good customer relations.