Shabbat Parashat Ki Tavo 5784

P'ninat Mishpat: A Flawed Used Car – part I

Case: The plaintiff (=pl) bought a car from the defendant (=def). Def reported shortcomings of the car and sold it for less than the catalogue price. Pl did not have it checked out professionally. On the trip home from the purchase, pl noticed noises from the back of the car during sharp turns and claimed problems with the shock absorbers and within a short time reported them to def. Pl wanted to return the car for a full refund, which def rejected. Pl’s garage says the problem is with the differential, which needs to be replaced (it costs 4,500 NIS to put in a used one.) Def claims that he did not hear the noises described, and therefore he surmises it is a new problem. He also argues that if there were noises, pl should have heard them during his test drive, and since he did not, he cannot back out of the purchase now.   

Testimony and Compromise: Beit din spoke to a neutral expert, with the sides’ participation, who supports the mentioned “diagnosis” and says that such a problem does not crop up suddenly. He also says that it is common that the owner of a car would not hear such a noise.

The sides negotiated, with beit din’s encouragement, the following compromise. Pl will keep the car in good order until Sukkot, when he will return it to def, who will sell it and give the proceeds to pl. When carrying this out, def claimed that the car was not in good shape, thus activating beit din’s clause that it retained the power to rule if the compromise was not implemented.

Ruling: Can pl nullify the sale (mekach ta’ut)? Whether or not the seller was aware of a serious blemish in a sales item, the buyer can nullify the sale because he did not intend to buy such an item (Shulchan Aruch, Choshen Mishpat 232:3, 11-20). There is no strict time limit for how long after the sale the complaint is made, as long as the buyer did not use it after that point (ibid.). Even if he did use it, if it was in a manner that does not show the buyer relinquished the right to return the item, he can still do so (Pitchei Teshuva, CM 232:1). An example is when one rides an animal he bought and discovered a blemish when he has no available replacement. Also, if there is no agreement on the item’s return, the buyer can continue using it. In this case, pl had a right to finish the trip with the car, after which he promptly informed def he wanted to return it, and until the matter was settled, his usage does not undo is ability to claim mekach ta’ut.

It still must be determined whether the blemish existed before the sale. If one buys an animal and it turns out some time thereafter that it is a treifa, the buyer must prove it occurred before the sale (Shulchan Aruch, CM 232:11). In contrast, regarding buying cheese that spoiled after the sale, the Shulchan Aruch (ibid. 16) says that one asks an expert if we can assume the spoilage started before the sale. The S’ma (ibid. 35) distinguishes between the cases – there was a status quo of completeness in the animal before the sale, whereas there is no such status quo for the cheese. We understand the difference to be between one-time acts that ruin an object, where we assume it happened later rather than earlier, and gradual processes, which we say could have started before. Therefore, based on the expert’s testimony, we assume the car was flawed when bought.

We continue next time.

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