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Enacting a Halachically viable return policy
By Dayan Yehoshua Grunwald
Q: I have a store and it is too costly to accept returns from everyone that claims that the merchandise was defective. What can I do to resolve the issue of Mekah Ta’ut (a mistaken purchase)?
A: There are two distinct issues with sales of defective merchandise: one of Genevat Da’at (tricking the buyer) and a second of Mekah Ta’ut (a mistaken purchase). [In some cases, such sales can also incur the violation and obligations of Ona’ah (overcharging or underpaying), but that is not our discussion here.[1]] Genevat Da’at applies prior to the sale, as one cannot to trick the buyer to get the sale, and mekach ta’os applies after the sale (the seller must accept return of the sale due to the defect). Both issues must be satisfied to avoid Halachic violations.
Genevat Da’at refers to selling items that are defective without notifying the buyer. This is a violation of tricking the buyer. According to some opinions this is a Biblical violation and according to others it is only a Rabbinic violation. Genevat Da’at will only apply if you have knowledge of the defect and the buyer doesn’t; if both of you are either aware or unaware of the defect it doesn’t apply. Thus, if, according to your knowledge, all of your merchandise is defect-free, you would be relieved of Genevat Da’at issues.
Those that sell defective goods, such as used items, expired items, or the like, should either clearly declare to the buyer the defects, or make it clear that you know that the item has defects. You can then leave it to the buyer; he can buy the item at his own risk, or he can choose to inspect it before buying, because you are selling it “as is”. According to some Poskim[2] when the buyer could check for the defect, and it is standard practice to check for defects, the seller need not declare the defects at all. This would be the case with examples such as the sale of used cars where the seller allows the buyer to have it checked by another mechanic and it is the type of problem that can easily be found by a competent mechanic.
Mekah Ta’ut refers to sales of defective merchandise where the seller must accept returns. Regarding the issue of Mekah Ta’ut, according to strict Halacha it is insufficient to declare that it has defects and that the sale is on the condition that the buyer forgoes the right to nullify the sale on the basis of the defects. Rather, the seller must clearly identify the defects and the amount that it decreases the value of the item. Nonetheless, according to some Poskim[3], when the seller declares that the item is being sold “as is”, and the Minhag – custom of that locale – is that items sold “as is” are non-returnable, the buyer can’t return it based on Mekah Ta’ut. It would seem that today in America this is the custom. This Halachic limitation to Mekah Ta’ut is especially true when the buyer could have checked the item to find the defects before the sale and didn’t, since, according to some Poskim[4], whenever the buyer could have checked the merchandise and didn’t, he forfeited his rights to claim Mekah Ta’ut.[5]
In instances where the case falls under the realm of Mekah Ta’ut there is no difference whether the item has a manufacturer’s warranty/guarantee or not; regardless the seller is obligated to accept the buyer’s return.
Additionally, wherever the Halacha of Mekah Ta’ut exists, the seller must return the form of payment or cash to the buyer; it is insufficient to give only store credit to the buyer in exchange for the item being returned.
It follows then that if a storeowner wishes to avoid the issues of Genevat Da’at and Mekah Ta’ut, he should reveal all defects that he is aware of, unless it is a defect that can easily be detected and the norm of that locale for that type of sale is for the buyer to check for defects. Additionally, the seller should post a clearly visible disclaimer that:
A- All sales are “as is” and returns are solely up to the seller’s discretion, or
B- All sales are “as is” and returns will only be for defective items where the refund will be in the form of store credit only, or
C- For all items that have warranties the sale is “as is”, and as such the buyer forgoes his rights to return the items to the seller through the laws of mekach ta’os and will only return the merchandise to the manufacturer.
In absence of such disclaimers the seller must follow the laws of accepting returns for all defective goods in exchange for the given payment or cash.
On a final note, at times there can be claims that although the sale was subject to the laws of Mekah Ta’ut however, the defect, perhaps, didn’t exist at the time of sale and only came about after the sale. Such claims should be dealt with by a competent Halachic authority.
Sources:
[1] See Sefer Ulam HaMishpat 232;4.
[2] Sefer Hilchot Mishpat pp. 273
[3] Radva”z vol. 4;136. It would seem that when the seller is the Muhzak (in possession of the item) he can rely on the Radva”z, see Mishpat Shalom 232;7.
[4] Maggid Mishne cited in S’m”a 232;10 . Numerous interpretations are given in the Poskim for the Maggid Mishne. The Aruch HaShulhan rejects the Maggid Mishne entirely (at least without another reason to combine with). Maharsha”m also rejects Maggid Mishne, but combines it with other reasons.
[5] See Maharsha”m (Shu”t, vol. 10;128) that writes clearly that one can rely on Radva”z when the buyer could have also checked to find the defect.