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Fellow Weekly - Issue 134
WHAT'S THE LAW ™
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Encouraging intelligent and entertaining debate at your Shabbat table.
Fellow Weekly raises issues of business law and ethics through lively emails by featuring your real-life scenarios answered by our leading authorities and professionals.
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Case 248 Vacated Vacation! CLICK HERE FOR THIS ISSUE'S PDF
After a year of hard and dedicated work at Hillside Educational Center, Aviva Fried was ready for a well deserved vacation.
Typically ear-marking a percentage from her bi-monthly paycheck for her summer retreat motivated her to overcome the many challenges at work.
Aviva and her friend Rina reserved a professed vacation apartment from July 28th to June 10th in Jerusalem's Maalot Dafna neighborhood. She looked forward to walking to the Kotel on Shabbat.
Aviva and Rina arrived on Thursday evening and picked up the key from a neighbor. Tired and hot, Aviva opted for a shower before they began their hectic itinerary.
Having to call an SOS plumber and dealing with major drainage backup, which flooded the shower room and hallway did not fit in to their well planned schedule. Aviva and Rina packed their bags, vacated and booked a week in the Dan Panorama.
They withheld the remainder of the rental fee, demanded a refund for the deposit, as well as reimbursement for the difference in price between the Maalot Dafna rental and a room in the Dan Panorama.
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CASE 247 Pray Pal!
The holiday prayer services are replete with much beautiful poetry which typically string Halachic and Midrashic literature apropos to the specific period of the holiday. Ari reveled at each opportunity to recite the many beautiful and uplifting piyutim, (Jewish liturgical poems) during each holiday. So it was no surprise that Ari purchased a striking set of matching machzorim (holiday prayer books) to become his "pray pal".
A few years of serious holiday praying passed. The years and joyous tears left their mark on the pages until Shabbat finally fell out during Chol Hamoed (the intermediary days). Ari typically used his machzor and discovered a considerable defect. The entire Shabbat morning liturgy was missing.
Immediately after the holiday, Ari returned to the store to demand a replacement. The problem was that the old color was out of style. Ari preferred the aesthetics more than the beauty of well worn pray pals. He refused to take a different color, which clashed with the rest of the set and the proprietor could do nothing with worn out prayer books. Ari wanted a matching set.
- To what, if any recourse is Ari entitled?
What is the law?
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The Answer
We present you here with a concise ruling. For a more intricate elucidation, please see the detailed explanation below.
Unless local business practice differs, Ari may dissolve the sale from years gone by, if he immediately stopped using the machzor.
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Detailed Explanation
Pray Pal invokes the following laws.
Unless local business practice differs, a customer may return the entire merchandise (if the seller can easily repair or replace the defective part without adversely effecting the merchandise, the customer can only demand a repair or replacement part) he/she subsequently found to be defective for an unlimited amount of time following the purchase; provided the customer did not previously pardon the seller.
Using the defective merchandise after noticing the blemish, generally implicates a pardon. Overlooking an obvious blemish, or a blemish generally discernible by prospective customers implicates a pardon provided the merchandise was not misrepresented [Choshen Mishpat 322: 3, 6].
Application
We can assume that it is not normal for one who purchases a set of machzorim to look through each volume to check if all of the pages are included. As such, objectively, we do not assume the customer to have pardoned the seller by not checking through the set before consummating the sale. Hence, upon discovery of the blemish, the customer retains the right for recourse, provided he/she immediately discontinues using the machzor. Thus, unless local business practice does not allow for recourse after such a long time, the customer is entitled to a new volume.
What if the seller can replace the defective part, but it no longer perfectly matches the initial set? Can the customer demand full recourse for an entirely new set?
According to our polls, consumers who purchase a set of machzorim are particular that the set matches. As such, if the seller cannot provide the customer with a replacement that matches with the set, the customer may demand recourse on the sale of the entire set, even years later - provided of course that this complies with local business practice.
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Note:
Although we aim to present the correct ruling, varying details are always important and decisively influence every individual case. Our readers are thus encouraged to present their personal cases to a competent authority and not solely rely on the information provided.
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Yesharim Foundation for Ethical Law
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