The Baffled Babysitter XIV invokes the following laws.
1. When merchandise's metrics are even slightly erroneous, recourse is permitted even years after the sale [Choshen Mishpat 232:1].
2. When the error is easily rectifiable (i.e. adding/subtracting an additional unit) the transaction is valid but the plaintiff may demand reimbursement for the difference [Choshen Mishpat 232:1].For example if the consumer received 99 units instead of 100, he/she may generally demand from the seller one more unit ad infinitum but cannot compel the seller to void the sale completely.
3. Generally, a consumer forfeits his/her claim for recourse after displaying consent to having received the faulty merchandise.
An example is using the merchandise after discovering the blemish.
Another example is if it is normal for a potential customer to have discovered the blemish while making a routine examination of the merchandise before the purchase, and the customer failed to examine the article, we view it as though the customer agreed to take the article "as is" [Choshen Mishpat 232:2, Sm"a 10].
4. However, using the article under "clear desperation" after having discovered, the blemish does not indicate consent to the sale.
For example: A purchased a horse upon which to travel, from B. While on the "maiden journey", A noticed a significant blemish worthy of dissolving the sale. But A was stuck! He had to get back to town to deal with B and needed to continue riding the horse.
Pischei Teshuva rules that such usage under "duress" does not indicate consent to the sale of the horse. The customer had no choice! The customer may still demand appropriate compensation for the blemish, although he/she continued using it under the circumstances [ibid. Pischei Teshuva §1].
5. If the customer notifies the seller that he/she wishes to either dissolve the sale or demand to be made whole - appropriately, subsequent usage does not indicate consent. Nevertheless, upon returning the article, the customer would have to pay the seller for the benefit or wear and tear he/she put on to the article [Machane Efraim]
Application
Note: The applications below reflect the strict Halachic approach. Store policies and local customs create variables beyond the scope of this issue.
Food Processor
A food processor with broken attachment is rectifiable by exchanging the broken part for a new one. The Berman's may only demand a new part.
Potatoes and Cream Cheese
Consideration A
Usage of a "blemished purchase" under "clear circumstances of desperation" does not indicate consent to the sale.
Consider:
- Could the Berman's have borrowed potatoes and cream cheese from a neighbor or were they really stuck?
- Was the prospect of not having cheesecake and kugel considered a "clear circumstance of desperation" likened to being stuck in the middle of the way without being able to get back to the city?
- Is the fact that Mrs. Berman simply did not have time to replace the merchandise because she was busy doing other things considered a "clear circumstance of desperation"?
- So it seems difficult to view our situation as a "clear circumstance of desperation". Seemingly, using the cream cheese and potatoes should indicate consent.
Consideration B:
Generally, groceries will not accept returns on dairy products. We can assume that the grocer would rather the Bermans use whatever they intended on purchasing and paying for the amount of a smaller container, rather than expecting them to return the full cream cheese after the holiday.
In a store that sells loose potatoes as well as large packages, the Bermans usage of five pounds of potatoes would not indicate consent for the entire bag. Otherwise, unless we can conjure up a case of ""clear circumstance of desperation," usage of five pounds would indicate consent on the entire package.
Parenthetically, calling the store conveying that they were uninterested in the larger items would make issues simpler.
Clothing
We asked a mother the following two questions:
a)When you purchase clothing online do you try them on the children before removing the tags?
b)When you purchase two matching outfits do you view it as one or two separate purchases?
She answered:
a. She assumes when ordering ordinary children's clothing online that size six is size six and does not try them on before removing the tags.
b. While it means a lot to her that her children match, unless the store sold it as a set of two shirts, it is viewed as to separate sales.
Accordingly, not pre-checking the size before removing the tags does not indicate consent to keep it "as is." She would be entitled to a replacement or refund
However, even if the online store was out of stock and could not replace the misfit, while Mrs. Berman is entitled to a refund for Yonatan's she must keep Yair.◆
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