Are you allowed to use an item that you intend to return?

By Dayan Yehoshua Grunwald

As we discussed in previous articles, sometimes the buyer has the right to return an item to the seller while, at times, it may be subject to the seller’s discretion. An important discussion regarding an item that is bound for return as it was a Mekah Ta’ut – a mistaken purchase – pertains to the usage of such an item prior to its return. There are three basic Halachot regarding the usage of a mistaken purchase:

The buyer may not use the item that he plans on returning because that would constitute Gezel – theft.
If, after discovering the defect, the buyer used the item, before informing the seller of his claim to invalidate the sale, he can no longer demand a return.
The buyer must pay for any usage of the item that he is returning. There are two possible reasons:
1. Nehene – benefitting, i.e. the benefit that he had from the product that belonged to the seller.
2. To relieve himself of the violation of Avak Ribbis – lit. the “dust” of interest – or a very minute form of interest[1]. ¹

Not Yours

As far as the first Halacha is concerned, whatever would be ordinarily permitted under the laws of Gezel would be permitted in this case as well. As such,

If the item is an article that can be used for a Mitzvah, we apply the rule of “Niha Leh L’Inish D’Liavad Mitzvah B’Mamono” – an owner is happy that another should use his item for a Mitzvah ² [2] – and therefore one does not have to seeks the owner’s permission for such a usage. This can typically apply praying from a Siddur when the buyer can’t contact the seller to obtain explicit permission to use it.
If it is the type of item that one does not mind if others use it, the buyer can use it as well. This typically applies to most used or defective items that can be used over and over without losing value.

The Right of Return

The basis for the second Halacha that one loses his right to return the item once he used it, is based on the assumption that a person does not want to steal. Given the Halacha that using an item of an invalid sale constitutes stealing, we can assume that the buyer waived his right to demand a return rather than assume that he stole. Therefore, this Halacha would not apply once the buyer informed the seller that he is returning the item, in which case it is clear that the buyer wants to return the item. In such a case, the sale is invalidated and any subsequent use has no bearing on the invalidation of the sale.

There are numerous exclusions to this limitation, though:

If the buyer buyer had a situation that compelled him to use the article (an “‘Oness”) he may still demand a return even though he used the article ³.[3]

Rav Z.N. Goldberg shlit”a is of the opinion that this logic would apply to any case where the user had the right to use the item without a concern of Gezel, as was previously discussed (c.f. footnote 1).

According to some Poskim, if it is a significant defect where it is obvious that no one would overlook such a defect, the buyer may demand return, even though he used it before claiming the right to return it.
According to some Poskim, if the seller has no proof that the buyer used it, the buyer can claim that he never forgave his right to demand a return. This is based on a ‘Migo’ (a claim on the basis of a possible alternate claim) that he can say he never used it.⁴^[4]
According to some Poskim, if it is an item that is designated to be rented out (or sold), the usage doesn’t constitute waiving the right to renege on the sale, since in such cases it wouldn’t be Gezel to use it with intention to pay for the use.⁵^[5]

Pay Per Use

As far as the third Halacha that one must pay for the usage of an item he intends to return, it should be noted that when this Halacha is applicable, the buyer must pay for all the usage he had of the item, including the usage performed before he discovered the defect.

As we mentioned, this Halacha has two possible reasons:

Nehene: One must pay for benefitting from his friend’s item. This would only require him to pay if the seller wants the money and it fits the Halachic criteria of paying for benefitting from another.

It should be pointed out that:

When the buyer had another item that he could have used instead and the seller couldn’t have rented out this item anyways, he essentially didn’t benefit from the usage and would be exempt from paying for its use.
Even if the buyer didn’t have another item to use, but the seller anyhow had no loss from the fact that he used it, he would be exempt from paying for the use based on the rule of “Ze Nehene VeZe Lo Hasser” – this one (the user) is benefitting and this one (the owner) isn’t losing.
According to some opinions, the obligation to pay for deriving benefit won’t apply in a scenario of a mistaken purchase of a moveable object (Mitaltelin).⁶^[6]

Avak Ribbit: Based on the rule that whenever the buyer reneges on the sale because of Mekah Ta’ut – a mistaken purchase – the sale is invalidated retroactively from the time of purchase, then, the money that was given to the seller is considered a “loan”. If the buyer is exempt from paying for the usage, he in essence receives from the seller the benefits of usage plus full reimbursement of the loan, which constitutes a minor form of Ribbit.

Rav Nissim Karelitz shlit”a is quoted⁷^[7] as saying that in most cases when it is simple courtesy for the seller not to demand compensation for the usage of the item, it wouldn’t constitute Ribbit either, since the forgiveness of paying for the usage is for the purpose of improved customer relations.

Sources:

[1] Levush, quoted in S’ma (S”K 33) [2] See Taz (Siman 359) that extends this to all cases where the user is in need of and is willing to pay all costs for its use, because it is a Mitzvah for the owner to allow another to use his item in times of need. The author of this article heard from Rav Z.N. Goldberg shlit”a that based on this Taz the user retains his right of returning the item after using it when he was in need since there was no Gezel involved. [3] Pithe Teshuva 232;1 [4] See, however, Sefer Dine Mamonot, which states that according to some opinions the seller can force the buyer to swear that he didn’t use the item. Accordingly, the seller would be able to make the buyer swear that he didn’t forgive his rights to renege on the sale. [5] See Sefer Meshiv BaHalacha (Siman 8) [6] See Ohr Gadol on Mishnayot (Bava Metzia, Perek 4). See, however, Ohr Sameah (16;8) that disagrees. [7] See Darche Mishpat, Vol 3, pg. 149.