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Shabbat Parashat Toldot 5773

P'ninat Mishpat: Late Return of Flawed Furniture part II

(from Hemdat Mishpat, rulings of the Eretz Hemdah-Gazit Rabbinical Courts)

Case:   In January ’08, a shul (=pl) received delivery of tables and corresponding benches of various sizes from a furniture company (=def). In August ’08 they received another order from def. Pl now (’10) complains that the legs of one size of table do not line up properly with the benches so that two people have to sit with one foot outside the table. Pl claim that it took some time to uncover the problem but when they did, they tried in a few ways to contact def’s sales representative, but he did not get back to them. After quite some time, a representative came to check the matter, but def is unwilling to take responsibility. Pl wants def to take back the tables and replace them at def’s expense. Def says that the tables are standard and that there have not been other complaints. In any case, def claims, since it took pl two years to complain (while payments continued), def should not have to take back unusable, used merchandise.

 

Ruling:   [In the last issue, we saw that the tables were flawed but that the time for complaining about that situation had already passed. Now we will focus on the sources regarding how long one has to complain about flawed merchandise.]

When the complaint one has with a purchase is that the price is significantly too high, the buyer can return it only within the amount of time it takes to show the merchandise to someone who understands such an object’s price (Bava Metzia 49b). However, in regard to a flaw in the merchandise, the rule is different. The Rambam (Mechira 15:2) says that one can return it even after years but not if he used the object after he discovered the flaw, for the use of the object is considered mechilla (relinquishing of rights) of the ability to return it. The Maggid Mishneh (ad loc.) cites an opinion that if the object is something that can be tested out for the flaw and he did not bother to do it, he can no longer return the object. The Mishneh Lamelech and others understood that the Rambam and the Rif do not agree with this opinion and that even if it was possible to test the purchased item, if he did not previously discover the problem, he can return it when he finds out.

There are different opinions in the Acharonim as to whether we accept the Maggid Mishneh’s opinion. The S’ma (332:10) does cite it. The Netivot seems to accept the opinion, just that he adds that this is only if he used it after the time he could have discovered the flaw. Yehuda Yaaleh (II:223) says that if there are concrete grounds for concern that there are flaws and he did not check, then all should agree that there was mechilla of the possibility to return.

According to the Maggid Mishneh’s opinion, there is no question that pl cannot demand return of the tables. Even according to those who argue, it is still clear that pl must have been aware of the problem, in which case, their lack of filing a formal complaint in a timely manner indicates mechilla. 

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Dedication

This edition of
Hemdat Yamim

is dedicated
 to the memory of
R' Meir
 ben

Yechezkel Shraga Brachfeld

o.b.m

 

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Les & Ethel Sutker

of Chicago, Illinois
in loving memory of
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Sara Rivka

bat Yaakov Tzvi

HaCohen z”l

 

 

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