Shabbat Parashat Nitzavim Vayeilech 5784

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

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 also claimed problems with the shock absorbers. Within a short time, pl 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.   

Ruling: [We saw last time that the basic requirements for mekach ta’ut (nullifying the sale) exist.]

Does pl lose the right to claim mekach ta’ut because he should have spotted the problem? The Maggid Mishneh (Mechira 15:3) cites an opinion that if the buyer could have checked for the blemish and did not, he cannot claim mekach ta’ut. The S’ma (232:10) cites this opinion and explains that we assume in such a case that he was aware of and not bothered by the blemish and changed his mind later. The Mishneh Lamelech (Mechira 15:3) rejects the possibility that the Rambam and Rif hold this way, and explains that the requirement to check for problems exists only in regard to mispricing, not blemishes.

It is not clear which opinion is accepted (see Nochach Hashulchan, Choshen Mishpat 15). Some say that the requirement to check is only regarding common problems (Chochmat Shlomo 232:3). Others distinguish between a claim of mekach ta’ut before and after the buyer’s using it (Netivot Hamishpat 232:1).

The Israeli Law of Sales (par. 13-15) limits somewhat the buyer’s right to nullify the sale along these lines. This law is the type that is not halachically binding. However, several poskim (including Shut Maharsham V:45) rule that when there is a machloket between halachic opinions on a matter, we can decide the practical ruling based on the local law, and this is even clearer when this conclusion is usually one that does not allow extracting payments. Therefore, we will accept the Magid Mishneh’s opinion limiting the claim of mekach ta’ut when the buyer could have been expected to check. However, according to the Kesef Hakodashim (232:3) if a check would require an outlay of money, it is not considered easily able to be checked.

In our case, it is not considered possible to be easily checked for multiple reasons. 1) The seller admits that he did not discern the problem; 2) One of the problems could only be felt on the highway and the other one was discernable during sharp turns.

Therefore, pl has the ability to claim mekach ta’ut. [We will not summarize the discussion on how to compensate for the mekach ta’ut in this case.]

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