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Drafted n' Duped!     Issue #: 099

Drafted n' Duped!   With apartments in high demand, Ray Field saw the following advertisement i ...

Drafted n' Duped!

 

With apartments in high demand, Ray Field saw the following advertisement in the DC area Classifieds. "Airy, comfortable, spacious apt. contact present tenant Joe Berger ... must buy existing used furniture.

 

September 14th 1969... drafted! Dr. Ray Field, a young cardiologist in  NY Beth Israel Medical was summoned to provide ongoing care to US army veterans in the Armed Forces Retirement Home Washington Campus.

 

Incredibly, Ray and his wife Carol received permission to live off campus, in walking distance from the nearby fledgling Summit Hill Ahavas Torah Synagogue.

 

Desperate for a place to live, Ray agreed to purchase the existing furniture from Joe Berger for $2,000 (buying power of $12,314.11 in 2011 see CPI Inflation calculator) . Berger then put Ray in contact with the landlord.

 

Ray forwarded 12 head checks to the landlord and intended to meet Berger as they pulled in to their new home.

 

Excited, though apprehensive about their new beginnings, Ray and Carol pulled up to their new home in Summit Hill, knocked on the door and were warmly greeted by Berger.

 

Carol took one look at the furniture and almost fainted! "Joe!  This furniture is ten years old!  It's not worth more than $500! We're taking the apartment and here's $500 for the furniture."

 

"Mrs. Field, Indeed this furniture is ten years old. But, I moved in here a year ago and the previous tenant forced me to purchase this furniture from him for $2000. I'm just passing down the rip off  to you..."

                                                    

 

 

 What's the Law? 

  

 

 

The Answer

 

The Fields may take the apartment and do not have to uphold their verbal commitment with the previous tenant regarding the furniture (see detailed explanation).

 

 

Detailed Explanation

  

Joe Berger overcharged the Field's four times the market value simply because he was ripped off last year. 

This episode transpired in 1969. There were no digital imaging, e-mail, etc. There was no way for the Fields to have "seen" the merchandise before their consent. Instead, the Field's reasonably assumed that while the furniture was advertised as used, the $2000 was a fair market value for the quality they were to receive .

 

In addition, the difference in price and true value was so immense that it could be viewed as though the Field's did not receive the type of merchandise they agreed to purchase. As such, the Field's need not "keep their end of the deal either" [Choshen Mishpat 233: 1].

 

Joe Berger wished to monopolize on the  opportunity. He was not appointed as an agent for his landlord. Instead, the Field's ultimately dealt directly with their landlord.

Over the Range!     Issue #: 098

Over the Range!    "Your fresh-cooked vegetables shouldn't come out of the microwave soft ...

Over the Range!

  

"Your fresh-cooked vegetables shouldn't come out of the microwave soft and mushy. Our sensor-equipped models take the guesswork out of cooking many common foods by using built-in sensors to automatically set power and time based on food moisture levels." [GE Website]

"Convection oven cooking combined with microwave power produces beautifully baked and roasted foods fast. The convection fan is mounted on the right side of the oven and is surrounded by a 1550-watt heating element, allowing you to convection bake in your microwave oven at any temperature between 225 and 450 degrees." [GE Website]

*

Anita Gross drove by  David's Appliance Depot on Reisterstown Rd. in Baltimore, MD and saw her to dream GE Profile 1790 sensor technology Convection over-the range Microwave oven featured in the storefront window.

"We have one left. We'll give it to you at our bargain giveaway price of $950. We offer optional payment plans as well with no extra fees! You won't find a better deal anywhere in town...Don't give up this once in a lifetime opportunity. By the next shipment, we're raising the price to $1050", pressed the salesman... Persuaded...though a bit wary...Anita handed the salesman three hundred fifty dollars cash and two post dated checks for three hundred dollars each.

Driving home with her prize in her trunk, Anita stopped off for a pizza at a local Kosher Pizza Shop when she eyed an advertisement in the "Where What When" Jewish Monthly on one of the tables. Abe's Appliances featured her dream 1790 for $694. Mortified, she went home, did some homework and found that she was duly ripped off - over the range! GE's suggested retail price was indeed $694. Incensed, Anita returned the next day to David's Appliance Depot and demanded a sale reversal. "It's a done deal Madam..."

 

May David's Appliance Depot charge $950 for merchandise valued at $694?

 

Does Anita have any recourse on the day of purchase?

 

Does Anita have any recourse the next day?

 

                                                     

What's the Law?

 

The Answer

Generally, David's may not charge $950.  If Anita discovers that she was overcharged 16% of the going rate, she may have recourse (see detailed explanation).

 

Detailed Explanation

 

Over the Range! Implicates the following four laws.

Taking advantage of an individual by overcharging or underpaying is generally prohibited [Choshen Mishpat 227: 1].

 

A customer who discovers, within the timespan necessary to ascertain the true value of the article (and return to the proprietor), that he or she paid more than 16% of the going rate, may generally rescind on the sale and demand his/her money back  [Choshen Mishpat 227: 2].

 

After the timespan necessary to ascertain the true value of the article (and return to the proprietor, the customer forfeits this right to retract on the deal. We assume that the customer ascertained the value, pardons the proprietor and consents to having been overcharged [Choshen Mishpat 227: 7].

 

Is a consumer who has not yet paid in full likely to consent to the degree of overcharge after the timespan necessary to ascertain the true value of the article, or does he/she view their holding on the money as leverage through which he/she can use to ensure a fair price as long as he/she still is in possession of the money?   [Ketzos HaChoshen 227: 3]

 

As valid arguments can be made to both sides, we would leave the status quo, and would not obligate the consumer to continue paying the full agreed upon price.

 

Are head-checks considered having paid for the article in full?

 

This depends upon the society. Generally in America one cannot receive cash for head-checks. Additionally, the issuer retains the right to cancel the check. A check is simply an IOU.

 

However, in Israel it is common to be able to redeem third party head checks for cash. In addition, in Israel, like in Old British Law, it is a felony to indiscriminately cancel a check.

 

Thus, in an American style society, having given head checks is deemed as though the merchandise has yet to be paid for in full.  Whereas, there is strong reason to believe that in an Israeli style society, forwarding head-checks is as though the merchandise is paid for in full.

 

Application

 

David's Appliance Depot overcharged Anita more than 16% of the going rate. Anita did not notify David's or return until the next day which was after the timespan necessary to ascertain the true value of the article. Thus, she theoretically, forfeited her opportunity for recourse. However, two thirds of the payment were in head checks. In America, we will assume that full payment was yet to be paid. We would therefore, allow Anita more time to rescind on the deal.

Dollar Ditch!     Issue #: 097

Dollar Ditch!    After marrying off their youngest daughter, the Fischer's from Lawrence f ...

Dollar Ditch!

  

After marrying off their youngest daughter, the Fischer's from Lawrence focused on actualizing their life-long dream of emigrating to Israel. Dr. Arnold Fischer planned to continue his practice on a part-time basis as a diagnostic radiologist for Beth Israel Medical Center, while Mrs. Fischer was set on volunteering as a social worker for terror victim families.

The two decided to take a pilot trip for year and rent a studio apartment on Shimshon Street in Ramat Beit Shemesh, as they shopped around for a suitable neighborhood and villa to purchase.

While planning to move in on August 19th , 2009, the Fischer's signed a lease with Doron Nadlan for $1,000 a month. They signed three months in advance on May 18th , 2009 and forwarded a security check in dollars as well. On May 18th , 2009 the shekel -dollar exchange rate was 4.169 NIS to the dollar.

As scheduled, the Fischer's moved in on August 19th , and while overcoming numerous initial challenges began to acclimate to their new environment.

On Oct. 15th, 2009 Dr. Fischer received the following shocking email from Nadlan.

 

" Dear Dr. and Mrs. Fischer


 As the shekel-dollar exchange rate unexpectedly plummeted to 3.69 NIS to the dollar, be informed that I am switching your rent over to shekels and expect 4169 NIS a month."


 Doron Nadlan

 

What's the Law? 

 

 

The Answer

 

Nadlan may not change the rental terms in midst of the contract.

 

Detailed Explanation

 

Dollar Ditch! Implicates the following four laws.

1. Land is legally acquired via four mediums; three of which are the transfer of money or effecting a contract or beginning of usage.

2. Real-Estate rentals and real-estate loans are like a temporary sale and are secured through the same mediums [Choshen Mishpat 190: 1, 195: 9].

3. After the prescribed legal acquisition means is met, a party may generally not reverse on the deal [Choshen Mishpat 189: 1].

4. When a real-estate rental has been legally secured for a defined period of time, a landlord may not adjust the terms of the lease during the tenure of the contract even if the price fluctuates drastically [Choshen Mishpat 312: 9, 10].

Application

 

The Fischer's secured their apartment rental or temporary sale by signing a contract. In fact, they even paid money and began using the apartment. The contract required the Fischer's to pay their rent in dollars. Nadlan may not adjust the terms of the contract on the Fischer's even if the shekel-dollar exchange plummeted in the interim.

 

Seem Stressed or Seamstress?     Issue #: 094

  Seem Stressed or Seamstress?   Aviva purchased a dress for $50.00 which needed alteratio ...

 

Seem Stressed or Seamstress?

 

Aviva purchased a dress for $50.00 which needed alterations. She took it to Mrs. Adler the local seamstress. Mrs. Adler altered the dress appropriately and Aviva wore it twice thereafter.

Subsequently, Aviva realized that she needed the dress to be let out by the seams. She purchased material for $14.00 and returned to Mrs. Adler one Tuesday.

Aviva explained to her that she needed the dress on Thursday of that week, as she wanted to wear it for an occasion out of town on Sunday night (her engagement party). Aviva described to her exactly what she wanted done to the dress and how she wanted it to look. She asked her not to add any flares but to make sure that the dress was straight. The two agreed on a price ($85.00) and Mrs. Adler gave her word that although it would be a difficult task, she would have it ready for Thursday.

Aviva called Mrs. Adler on Thursday afternoon to see if it was a good time to pick up the dress. Mrs. Adler responded that quite frankly it would be an unfruitful excursion on Aviva's part as she had not started working on it.

Aviva was outraged! She reminded Mrs. Adler that they agreed that she would have it ready for her by Thursday because she needed it for an event...

Mrs. Adler apologized but reassured Aviva that she can have it ready for Sunday noon, and that she should stop by on Friday to try on the dress.

Aviva came in on Friday intending to try on the dress.

Horrified was an understatement!

The seamstress had cut the dress to add the material, but she had not followed Aviva's directives! She added three flares instead of making it straight. And the hem...it was atrocious!

To make things better, Mrs. Adler was not in. Her worker was there in her stead. Aviva told her worker that the repair was not what she asked for and that she would never wear the dress like this. "Something has to be done." Aviva pinched the excess material and told her "I want this out!" The worker shook her head and responded that she will try her best to fix what she can and that Aviva should come back on Sunday morning.

Aviva returned to Mrs. Adler with her Mom on Sunday morning to try on the dress. It was still far from Aviva's liking. It was not straight, and it looked like patch work...but nothing more could be done..

Aviva was minus the material she bought and minus the dress- "It is absolutely not wearable like this", complained Aviva and her Mom.

Mrs. Adler told Aviva that the dress looked beautiful on her, handed Aviva the altered dress and told her that she would have to charge her an additional thirty dollars because she had to pay her worker extra for staying longer and working on the dress.

"What audacity!" Aviva adamantly refused to pay her an extra thirty and even wondered whether she should pay her at all.

 

She set forth four arguments.

1) They agreed upon an $85 cost in the beginning,

2) The worker only put in extra work because things were not done right the first time,

3) The style of the alterations were not what Aviva had requested and

4) Mrs. Adler did not have the dress ready on Thursday as originally promised. 

 

*

 

1) Was Aviva obligated to pay her the $85 for the work that was done, even though it was not what we agreed she would do, and it was not ready in time?

2) Is Mrs. Adler responsible to pay Aviva back for the material that she bought to add to the dress? ($14.00)

3) Is Mrs. Adler responsible to pay for part of the cost of the dress since she rendered it not wearable anymore? 

 

 

What is the Law?

 

 

The Answer

 

As Mrs. Adler ruined the dress, Aviva is absolved from paying the initial $85 as well as the additional thirty. Mrs. Adler must pay for the material and the value of the used dress. 

 

Detailed Explanation

 

We may divide this episode into two different phases. 1) from Tuesday till Friday 2) from Friday till Sunday.

 

Phase 1: Tuesday till Friday: $85, $14, Dress Value

Aviva requested the dress repaired without flares and that the job should be completed by Thursday.  Mrs. Adler failed on two accounts. She did not complete the job at the prescribed time and ruined the dress by adding flares instead of making the dress straight.

 

A service provider who is tardy is guilty of causing anguish to his/her customer.  Nevertheless, while tardiness gives the customer a right to have hard feelings against the service provider, tardiness alone does not warrant  withholding payment, so long as the service remains beneficial. Generally, a dress retains the same value whether or not it was ready at the prescribed time. (Parenthetically, there comes a point in time when tardiness is above and beyond the norm that the customer may rescind on the transaction.)

 

However, payment may be withheld when the service provider ruins the merchandise.  A used dress is hardly worth anything to anyone other than to the initial owner.  If the dress is not to the owner's liking anymore, it becomes virtually valueless. Thus, Mrs. Adler ruined the dress.  As such, Aviva would be absolved from paying for the addition of the flares.

 

Similarly, as Mrs. Adler ruined the dress, she is required to compensate Aviva for the material as well as for the value of such a dress which had already been worn twice beforehand. 

 

Phase 2: Friday till Sunday: Additional work

If on Friday, Aviva would have agreed that if they fix it up she would accept it, even though it was already obvious that they couldn't make it 100% as she was hoping for, (it already had flares and it was not going to become 100% straight anymore) and they claim that they did make it acceptable then there is room for discussion, and the other side's story has to be heard also.

 

However, Aviva was quite clear what she wanted. She wanted it straight. If it was impossible to do, the seamstress should have been upfront with her. An attempt to make it "acceptable" would not warrant payment for an unsolicited job from which the customer has no benefit. Thus, Aviva is absolved from paying for the additional service rendered.

Busted Refrigerator & Cold Feet!     Issue #: 141b

Issue 141b.pdf (1.30 mb) Busted Refrigerator & Cold Feet!   Refrigerator Their lifelong dre ...

Issue 141b.pdf (1.30 mb)

Busted Refrigerator & Cold Feet!

 

Refrigerator Their lifelong dream was slowly becoming a reality.  Dr. and Mrs. Jerome Adler (see Issues 107, 108) were relocating from Flatbush to a mountain view apartment on Rechov Nachal Dolev  st. in Ramat Beit Shemesh. 

 

To ease her transition, Mrs. Adler included American style appliances with 220 voltage in her lift;  a new stainless steal double sided LG Ultra-Capacity 3 Door French Door Refrigerator with Smart Cooling, a matching Over The Range Microwave, and large Whirlpool washing machine. David’s  Appliances on   13th Ave in Boro Park benefitted from her shopping spree.

 

Mrs. Adler fell in love with the refrigerator. So much so, that she designed her kitchen to fit and match her silver colored cooling treasure.

 

While keeping their eyes on the prize, their excitement in setting up their kitchen was challenged upon discovering that their refrigerator was a lemon. 

 

Chagrined, Mrs. Adler complained to David. “We’re presently out of stock of this model. Send it back and we’ll give you a refund,” David generously replied.”

 

“David! Who’s paying for the space on the lift to and from Israel? If I can’t get this model anymore, what’s with the expenses of reconfiguring my counter space and color scheme?

 *

Cold Feet Meira’s commitment challenges became apparent only after a modest engagement party was held in the local High School’s Auditorium.

 

Moshe demanded she reimburse his family for the expenses for the party.

 

 

What’s the Law?

 

The Answers

 

Refrigerator: Purchasing 220 voltage appliances, David knew that the Adlers intended on exporting them abroad. As such, in addition to refunding the value of the refrigerator, David assumes the responsibility and liability for the shipping of the defective refrigerator back to the store.

 

Unless David knew of the defect before the sale, he is absolved from paying for the costs the Adlers incurred by shipping it to Israel as well as from the costs to reconfigure the kitchen.

*

 

Cold Feet: Assuming Moshe followed the prevalent custom to throw a party, Meira must compensate him for the financial loss she consciously caused him to lose.


 

 Detailed Explanation

Busted Refrigerator & Cold Feet invokes the following laws:

  1. A merchant must stand behind his/her product even if he/she did not know that the sold merchandise was faulty [Choshen Mishpat 232: 18].
  2. It is the merchant’s responsibility to retrieve the defective merchandise. The merchant assumes retrieval costs which should be expected and may not coerce the consumer into paying for its return. As costs for international shipping can be reasonably unexpected, they are assumed by the merchant only if he/she knew at the time of sale that the consumer intended on exporting the merchandise [Choshen Mishpat 232:21, Nesivos 10].
  3. The consumer’s ultimate useless secondary outlays as a result of having assumed that the merchandise was sound is considered a grama, an indirect damage, for which Beit Din will generally not obligate the merchant to reimburse, unless the merchant intentionally sold the defective merchandise to the consumer, whereby the merchant would have a moral obligation to pay for intentional indirect damages which he/she caused [Choshen Mishpat 232: 21].
  4. If the accepted custom is for the groom to sponsor an engagement party, he may demand reimbursement from the girl if she subsequently got cold feet [Shulchan Aruch Even Ezer 50: 3].

Although, one might argue that the outlay for the engagement party seems comparable to Mrs. Adler’s secondary outlays resulting from her assuming that the refrigerator was sound, a number of distinctions can be made.

a) David’s selling of a defective product was unintentional. As such, secondary costs are viewed as grama,

    Consciously breaking off an engagement after expected expenditures were spent is a direct act of damage [ Taz ibid.]

b) Mrs. Adler’s secondary expenditures were voluntary and not part of the essential purchase. When the accepted custom is for the groom to foot the bill of the engagement party, the bride may compel him to do so through a Beit Din order. As such, upon betrothal, she “forces him to pay for the party”. Hence, if she dissolved the engagement, she must compensate him for the loss she perpetrated against him [Magid Mishna].

 

Application

Refigerator  David is required to reimburse the Adler’s for their defective refrigerator. As they purchased 220 voltage appliances, he knew that they were intending to export them abroad and cannot claim that the reshipping costs are unexpected. David is thus required to arrange for the refrigerator to be returned and must reimburse the Adlers regardless if he succeeds in doing so.

The costs of bringing the refrigerator to Israel and of the kitchen configuration are secondary. David is absolved from paying for them unless he intentionally sold them defective merchandise.

Cold Feet  Assuming Moshe followed the prevalent custom to throw a party, Meira must compensate him for the financial loss she consciously  caused him to lose. ◆

Sour Milk!     Issue #: 139, 140

Sour Milk!   Gliding on her easy chair in her air conditioned salon overlooking Jerusalem's bib ...

Sour Milk!

 

Gliding on her easy chair in her air conditioned salon overlooking Jerusalem's biblical zoo, Emily Fried reminisced to her grandchildren about her scores of summers spent in the Borscht Belt.

Her animated legends of dessert sales, one public phone for fifty seven families, three washing machines for 400 children ¼ mile from the closest hamper and happy go lucky primitive wholesome lifestyle kept her brood spellbound for hours.

Emily vividly recalled some sensational shopping scenarios; surprisingly contemporary experiences.

Thursday night lines at Shop n Kosher Market were no sneezing matter. After waiting on line for an hour, the cashier began ringing Emily's bill when she realized that she forgot to pick up the family magazine from the front of the store. "Please do me a favor and bill me for the magazine. I'll pick it up on the way out."

Pushing her towering shopping cart, Emily reached the magazine stand...but none were left. Trying to push her ways through the crowd, Emily hollered to the cashier and asked for a refund. "I'm sorry Ma'am but you've got to take this up with the manager. She's the one who can issue you store credit."

 

The thought of going upstairs and working through all the red tape to get her $3.00 refund or credit was less than appealing to her. "That's it, I'm just going over to the shelves and taking three dollars worth of chocolate bars," she told herself.

Emily returned to her bungalow, unloaded her groceries, poured herself a bowl of cornflakes and milk.

 

"Aw!' this milk is sour!" Emily ran back to the store, saw the line and reckoned, "They owe me a container of milk. I'll simply pull a new one of the shelf instead of standing on line for another hour."

 

 

 

What’s the Law?

 The Answer

Objectively, if Emily feels honestly vindicated by her position, she may take the merchandise on her own, with three important provisios 

1) her actions do not appear to onlookers as theft and

2) it is not performed in front of two  witnesses who can otherwise testify against her in Court

3) she is willing to allow Shop n' Kosher to take her to a Torah court if an argument ensues. see detailed explanation.

 

IT GOES WITHOUT SAYING THAT IT IS FORBIDDEN DESECRATE HASHEM'S NAME; TO ACT IN A MANNER WHICH CAUSES OTHERS TO ASSOCIATE DISHONESTY WITH HASHEM, HIS TORAH, and HIS PEOPLE.

 

Detailed Explanation    

 

Sour Milk invokes the following laws.

 

We discussed in Issue 138  that upon the consumer's discovery of a defect, the consumer would generally have to prove that the defective article was defective prior to the moment of purchase, before Beit Din can compel the seller to annul the sale. In other words, we will respect the status quo of the money as the halacha says:

  

 When the plaintiff is rationally convinced of his/her claim, we apply the following theorem: 

   

  1. "The onus of proof lies upon the party interested in altering the fund's status quo" [Bava Kama 46, Shev Shmatza 2].

 

Consequently, if the consumer already paid for the merchandise, the onus of proof would lie upon the consumer. If the consumer had yet to pay for the merchandise, the onus of proof would lie upon the merchant.  

 

However, in Sour Milk, Emily may lack proof that the milk spoiled before she bought it. Similarly, she may lack proof that she did not receive a magazine.

 

Is there recourse for a plaintiff who knows he/she is right but lacks the ability in Beit Din to retrieve her money?

 

Yes. The plaintiff can often alter the status quo of the money.

 

By what means?

 

  1. With the exception of forcefully taking a collateral for an outstanding loan which is a biblical prohibition to  do so; [Choshen Mishpat 97:6] a plaintiff who is certain about his/her claim may grab the defendant's article provided that by doing so, the plaintiff can prevail in Beit Din [Choshen Mishpat 4: 1].

 

Once the article is in Emily's domain, she can prevail in Beit Din by compelling the other party to prove that she is wrong and that she did not purchase the article. Her right to grab the article(s) are due to the fact that were the articles in her domain, Beit Din would award them to her anyway.

 

Consequently, Emily may not grab the articles/merchandise in front of two witnesses.

 

Why not?

 

If two witnesses testify that they  saw her grabbing an article from the defendant, Beit Din must deal with her as though she were a thief even if she claims she took the articles rightfully. 

 

Two more considerations must be weighed before deciding to grab the due merchandise in front of people (or a closed circuit TV - for that matter).

 

  1. It is forbidden to behave in a manner by which people will view you as a thief or sinner [Bamidbar 32: 22, ].   

 

  1. It is absolutely forbidden to behave in a manner which will cause others to have disrespect towards Hashem, His Torah, and associate dishonesty with Jews. The Heavenly punishment for such behavior is grave [Maseches Yoma 86a].

 

 

Application  

Emily may take $3.00 worth of merchandise and a fresh milk if she is certain that the milk spoiled before she left the store. Emily may not do so if people will misunderstand her behavior as shoplifting. Emily may not do so in front of two people who can testify in Beit Din that she took merchandise from the store without paying as she no longer will prevail in Court.  

Doubtful Digital Defects     Issue #: 138

Issue 138.pdf (801.28 kb) Doubtful Digital Defects   Renee Berger purchased a 12.0-Megapixel Di ...

Issue 138.pdf (801.28 kb)

Doubtful Digital Defects

 

Renee Berger purchased a 12.0-Megapixel Digital Camera on Cyber Monday 2012, (November 26, 2012) on her Visa Card.  She received the camera on Dec. 3rd. 

On December 6th, she submitted the following complaint to the manufacturer.

“My camera worked well the first time I turned it on. The second time I turned it on, the lens extended, the icons appeared on the screen, but the screen itself was black. I went to take a photograph to see what the issue was, but the photograph came out black as well. I am demanding that you accept my return and refund my purchase.” 

Renee received the following response.

 “No product leaves our factory without passing due inspection. We assume the malfunction was due to a mishandling on your end. As such we will not honor your request.”

 

 

What’s the Law?

 

The Answer:

 

The onus of proof lies upon Renee unless local business practices determine otherwise.

 


Detailed Explanation

 


Doubtful Digital Defects invokes the following laws

 

Renee’s claim and the manufacturer’s counter claim raises an uncertainty appertaining to the condition of an article.

 

Did the camera malfunction due to an inherent defect or due to the consumer’s mishandling?

 

The issue on the table is:

 

Q, On whom lies the onus of proof? Does it matter if Renee paid for the product or purchased it on credit?

 

  1. Halacha provides two approaches contingent on the degree of rational conviction of the plaintiffs claim.

 

  1. When the plaintiff is rationally convinced of his/her claim, we apply the following theorem:

 

“The onus of proof lies upon the party interested in altering the fund’s status quo” [Bava Kama 46, Shev Shamtza 2].

 

Consequently, if the consumer already paid for the merchandise, the onus of proof would lie upon the consumer. If the consumer had yet to pay for the merchandise, the onus of proof would lie upon the merchant.

 

  1. When the plaintiff cannot propose a rational claim with conviction, we apply an alternative theorem:

 

The onus of proof lies upon the party within who’s territory the uncertainty appertaining to the article’s condition unexpectedly  surfaced” [Choshen Mishpat  224, 232:11].

 

Our scenario meets both interpretations of this law [Rif and Rosh]. The camera is both in Renee’s physical domain and legal authority.

 

Renee would thus have to prove that the defect occurred prior to the sale whereby invalidating the sale irrespective of whether or not she paid for the article.

 

Unless otherwise stipulated, transaction terms are subject to local accepted custom.

 

  1. Unless otherwise stipulated, transaction terms are subject to local accepted custom [Choshen Mishpat 232:6].

 

Application

 

Even assuming Renee was absolutely certain that she did not mishandle the article, the burden of proof lies upon her because she already paid for the camera.

 

If Renee could not have proposed a rational claim with conviction, the onus of proof would lie upon Renee even if she did not pay for the camera as of yet, as the unexpected uncertainty  surfaced when the camera was both in Renee’s legal and physical domain, the onus of proof lies upon Renee.

 

If however, local business practices favor the consumer, the merchant must comply accordingly. ◆

Downtown Dentures & Rolex or Buick     Issue #: Special Class 01

Downtown Dentures Class Handout with Source Material Downtown Dentures Esophagogastroduodenoscopy (E ...

Downtown Dentures Class Handout with Source Material

Downtown Dentures


Esophagogastroduodenoscopy (EGD) is a test to examine the lining of the esophagus stomach, and first part of the small intestine. It is done with a small camera (flexible endoscope) that is inserted down the throat.

The patient receives a sedative and a painkiller. A local anesthetic may be sprayed into the mouth to prevent coughing or gagging when the endoscope is inserted. Dentures must be removed."

Grandma was sent home after the procedure, and her health slowly began to improve. However, the hospital sent her home without her dentures. The hospital verbally agreed to pay for new ones.

The family commissioned their dentist to begin constructing new ones; projecting to complete the job in a week in a half.

In the middle of the week, the hospital called Grandma's home and told her that her teeth were located in a nursing home, downtown. "The nurse inadvertently sent them home with another patient. You'll receive your old teeth in two days, but we refuse to pay for the construction of the new ones."

 

Who pays the dentist?

Rolex or Buick!


Few would imagine that the 1989 graduating class of Harvard Business School would develop into one of the most celebrated graduating classes of the era. As exemplary role models, who positively influenced both business and society; the class of 1989 already boasted numerous Alumni Achievement Awardees.

 Today's leading executives and activists were yesterday's determined neophytes. Brian Green, a leading executive of Morgan Stanley and an 1989 graduate, remembers his first interview and its aftermath. 

"Forever a genuine comrade, my fellow classmate Fred Bernstein, prayed hard that I would get the job.  A selfless young man - he would rejoice when his peers succeeded.

 Determined but equally nervous, I wished to make a striking impression... Fred looked me over and exclaimed, 'Brian, your presentation is great, but you will steal the show if you came in wearing a gold watch. Here, take my Rolex for the interview. I will be out of town for the next few days. Give it back to me when I return. 

Thank G-d I got the job. The supervisor told me that I made an outstanding impression and would begin my career in but one month's time.  I felt sincerely indebted to Bernstein.

Throughout my college tenure, I had been saving up for my first Buick. I was eager to make my purchase in time for my first job. Bernstein returned a week later, but to my misfortune, I could not locate the watch. As much as I searched through my belongings, the Rolex did not appear.

 My dream was dashed! Painfully, I dug into my purse, liquidated my savings and issued  to Bernstein two checks for $3000.

 Fred cashed the checks and purchased a similar model from Tourneau.

 As I cycled on my Schwinn each day to work, my mind soared back to my dream Buick.

 Four months later, when relocating to a new apartment, the Rolex appeared. "Eureka! My Buick may be a reality soon after all", I thought.  Excited to return the watch and reclaim my cash, I contacted Bernstein and told him, I'll be over in ten minutes...'Not so fast replied Fred..

 

Must Fred accept the watch and return Brian's cash?

May Brian appear to an interview wearing Fred's Rolex?

 

 What’s the Halacha?

Downtown Dentures

Downtown Dentures invokes the following laws:

1)      A paid trustee (shomer sachar) is liable for negligence, losses or theft which he/she could have prevented [Choshen Mishpat 303:2].

 

2)     "A depositor delivered jewelry to a trustee (shomer) for safekeeping. Upon the depositor’s return, the shomer fails to locate the jewelry. The court requires the shomer to compensate the depositor for the value of the jewelry. The shomer defaulted and the court mortgaged the shomer’s real-estate to the depositor. Subsequently, the shomer found the jewelry in his possession.

 

We deem the compensation a faux - pas (blunder) and the shomer retains the right to return the jewelry and retrieve his or her real-estate from the depositor" [Bava Metzia 35a, Choshen Mishpat 103: 11].

 

3)     Generally, once an employee begins the commissioned work, the employer may not cancel the job without compensating the employee. However, as a result of an unforeseeable happenstance, where the work serves no function, an employer may cancel the commissioned work midway. The employer though, is required to pay for the work that was performed [Choshen Mishpat 335: 2].

 

4)      If B crafted a product under commission from A, A must pay for the product regardless of whether he/she subsequently needs it (unless b can easily sell it to someone else) [Nesivos 333: 15].

 

5)     A verbally committed to meet B in court on a particular day.  B paid out money to get there. A was negligent and did not show.  A must compensate B for the reasonable and foreseeable expenditures he/she spent as a result of relying on A’s word [Choshen Mishpat §14: 5 Rema].

 

Application

The hospital assumed the responsibilities of a paid trustee. They were negligent with the dentures and inadvertently sent them elsewhere. While they would be required to replace the dentures; subsequently returning the actual ones suffices.

Grandma commissioned the dentist to craft new dentures. The fact that she does not need them anymore is inconsequential. She would be required to pay the dentist for his work. (Parenthetically, having a spare pair of dentures is not uncommon. It is difficult to argue that making a second pair serves no function. )

Nonetheless, Grandma commissioned the dentist after responsibly relying on the hospital’s verbal commitment to pay.

As a result; says Dayan Chaim Kohn, the hospital becomes obligated to pay, even if the family would have decided to commission new ones regardless of the hospital’s promise.

The Answer: Downtown Dentures

Grandma must pay the dentist, but the hospital is required to pay Grandma.

 

 *

The Halachos: Rolex or Buick

Rolex or Buick! implicates two distinct issues

 

v  Is Brian entitled to a recourse to reclaim his money?

v  Is Brian guilty of "stealing" the heart of his prospective supervisor?

 

 

Let us focus on each issue independently.

I. Is Brian entitled to a recourse to reclaim his money?

Introduction: Here is a quote from Britannica Encyclopedia (Mortgage Law).

"If the mortgagor failed to repay the debt by the time that was specified in the mortgage, the land became the mortgagee's absolutely....In the 16th and 17th centuries, however, the English equity courts intervened on the side of the mortgagor. Equity first gave the mortgagor a right to redeem the land by paying the amount that was owing, even after he had defaulted on the debt..."

Consider the following albeit different, yet similar Talmudic scenario.

"A depositor delivered jewelry to a shomer (custodian) for safekeeping. Upon the depositor’s  return, the shomer fails to locate the jewelry. The court requires the shomer to compensate the depositor for the value of the jewelry. The shomer defaulted and the court mortgaged the shomer ‘s real-estate to the depositor.  Subsequently, the shomer found the jewelry in his possession. We deem the compensation a faux - pas (blunder) and the shomer retains the right to redeem his or her real estate from the depositor." [Bava Metzia 35a, Choshen Mishpat 103: 11]

So, the progressiveness of sixteenth and seventeenth century English Equity courts, was in fact a rediscovery of sorts of a theory directly reflecting the age-old Talmudic concept.

"Although a debtor compensated the creditor with alternative means, he or she does not necessarily lose the right to reclaim the "alternative compensation" with due payment at a later date."

Now, while generally, Talmudic Law only obligates the creditor/ depositor  to comply with such compulsory recourse in an instance of faux - pas, and not in an instance of blatant default of payment, we will allow for history play out its course and see if Anglo-American Law progresses further in the direction it seems to be taking.

Application

Must Fred accept the watch and return Brian's cash?

 

As a shomer, Brian was responsible to return the goods Fred deposited by him. Monetary compensation as a form of alternative compensation is due should Brian not produce the deposit. In our faux - pas situation, where Brian subsequently discovered the deposit amongst his belongings, he may return it to Fred and require Fred to return to him his cash.

 

The Answer:

Fred must accept the watch and return Brian's cash. Rolex or Buick? Buick!

II Is Brian guilty of "stealing" the heart of his prospective supervisor?

Background: 1. Deceiving any human being, or Geneivas Da’as, is a form of theft and is a biblical prohibition [Maseches Chulin 93b].

  1. Additionally, tricking any human being even without causing him or her a financial loss or damage is a rabbinical prohibition.

This includes garnering undeserved praise or feelings of gratitude through feigning a false impression of benevolence and virtue.

Explanation:

Just as one may not steal another's money one may not manipulate another's feelings of gratitude and steal his or her heart [Shulchan Aruch HaRav: Hilchos Ona'ah U'Genevah 11, 12].

Exception:

Creating an atmosphere within which the victim is to blame for not thinking responsibly is not included in these prohibitions [Maseches Chulin 93b].

Application

May Brian appear to an interview wearing Fred's Rolex?

While "dressing the part" clearly makes a striking impression, which might positively influence the outcome of an interview, it is widely accepted for a prospective candidate to groom himself or herself fashionably for such a meeting. A supervisor's responsibility is to appreciate that candidates portray themselves in a superior manner within reason of their means and see beyond the outside trimmings.

Consequently, sporting finer wear for an interview does not convey a false impression of the manner in which the candidate appears on a day-to-day basis.

Instead, the supervisor suffers the consequences of his or her failure to consider these factors accordingly.

Hence, as a Rolex was within reason of Brian's means, although he did not own one, he may appear to his interview sporting Fred's Rolex.

The Answer

Yes, if wearing it is “within his means”.

The Right Meat, The Wrong Supervision!     Issue #: 148

Issue 148.pdf (614.62 kb) The Right Meat, The Wrong Supervision!   Living out of town offered M ...

Issue 148.pdf (614.62 kb)

The Right Meat, The Wrong Supervision!

 

Living out of town offered Mrs. Berman wonderful opportunities to introduce her neighbors to the beauty of Jewish living. When Mrs. Berman first moved to Anytown USA, most of her friends were unaccustomed to dining in the succah. 

 

Mrs. Berman pleasantly changed that. She invited the entire community for Kiddush on the first day of Succoth to her red wooden Succah.  The tables were typically laden with mouth-watering home-baked cookies, pastries, meat platters, kugel and chulent - and rolls for those who wished to wash.

 

Time has a way of passing on.  More and more succahs soon bejeweled the neighborhood backyards. Yes; gone were Mrs. Berman’s heavy red succah boards. Many a local day-school grad by now would return as a yeshiva boy for the festival. The seven-year-old cookie gougers were now grown adults drinking whisky. Olive oil began substituting for margarine, but the piping hot chulent and Addie’s Jelly roll kept inviting the aging community back to the Berman Succah Bash.

 

Anytown USA did not boast a kosher butcher. Instead, twice a year, Mrs. Berman would order half a cow from a particular butcher shop in the nearest large Jewish city. She liked the shop’s packaging and cuts, and their variety allowed her to choose meat from the rabbinical supervision of her preference.

 

Two and a half weeks before Succoth, she received her order. Mrs. Berman eagerly opened the first box and was rather chagrined, as she received the right cuts of meat from unfamiliar kashrut supervision.


 

 

What’s the Law?

 

 

The Answer:

It depends [See detailed explanation].

 

Detailed Explanation:



The Right Meat, The Wrong Supervision invokes the following laws.

 

  1. If a buyer intended to purchase Product 1 and received Product 2, both the seller and the buyer have a right to void the sale [Choshen Mishpat 233: 1].

 

    2a. If a buyer intended to purchase Grade A and instead received Grade C, the buyer may void the sale, while the seller may not void the sale [ibid].

 

    2b. Conversely if the seller intended to sell Grade C and instead, inadvertently delivered Grade A, the seller may void the sale, while the buyer may not do so [ibid].

 

  1. If the difference in intended quality can be effectively rectified, no one may void the sale. (The cost of rectifying the issue lies upon the seller.)

 

  1. If the difference in intended quality is nominal, Rema opines that the sale remains valid. (The cost of rectifying the issue lies upon the seller.) [Note: In practice, Nesivos rules like Rema once the consumer has paid for the article. While, if the consumer has yet to pay for the article, Nesivos rules like Ran who allows the consumer to void the sale.]

 

  1. For a pampered consumer, even a nominal deficiency in quality may be deemed significant enough to permit him/her to void the sale completely [ibid]. [See Nesivos 233:5 if it is necessary for the seller to be aware that the consumer is “pampered” or is it sufficient that the consumer specified his/her preference.]

 

  1. Even when sale may not be nullified, when appropriate, price adjustments are necessary even if the difference is less than a sixth of the market value [ibid, Pischei Teshuva 2].

 

Application

Meat under an alternative rabbinical supervision:

Is that considered as

1) A different product

2) A different grade of the same product

3) A nominal difference of quality?

 

-      Considering the two as a different product would allow both the seller and consumer to void the sale.

 

-      Considering the two as different grades of the same product will allow the consumer to void the sale.

 

-      Considering the two as a nominal difference of quality would allow the consumer to void the sale if a) he/she has yet to pay for the meat b) if the consumer can prove that he/she is a ‘pampered’ customer. Otherwise, the sale remains valid while price adjustments are in place.

 

As both meats are edible, it is difficult to view them as two different products. Instead, we could view them either as two starkly different qualities of the same product, or else nominally different, depending on the circumstances.

 

If the two supervisions were of objectively different qualities, the consumer may void the sale.

 

If the difference between the two supervisions was nominal or subjective; unless the consumer can prove that he/she was a ‘pampered consumer’, the sale may not be voided. Price adjustments, when necessary, are in place.

The Schnitzel Sham     Issue #: 146

THE SCHNITZEL SHAM   "Celebrate with The Schnitzel Place: Homemade Gourmet Meals for Less. $30 ...

THE SCHNITZEL SHAM

 

"Celebrate with The Schnitzel Place: Homemade Gourmet Meals for Less. $30 a plate. Delivery to hall and setup for an additional $2 a plate."

As the out of town guests eagerly arrived, Hyman and the bar mitzvah boy Josh's palpable excitement turned sour when they discovered a bare hall devoid of schnitzels.

The Schnitzel Place delivered the meals to the wrong hall.

 

 

Ø  The Schnitzel Place failed to deliver the meals to the appropriate location. Must Hyman pay for the meals?

 

The Answer:

Whether The Schnitzel Place provided the delivery service themselves or else they hired a third party to do so, Hyman is absolved from paying for the meals. If the third party delivery service was commissioned by Hyman, Hyman remains liable towards The Schnitzel Place.

Detailed Explanation:


The Schnitzel Sham invokes the following Halachos

  1. When a defect in a sale is easily rectifiable (i.e. adding/subtracting an additional unit) the transaction is valid but the buyer may demand reimbursement for the difference [Choshen Mishpat 232:1].
  2. A consumer whose defective merchandise is of such that when the defect is rectified it would not change or adversely affect the quality of the merchandise, may not annul the sale. Instead, he/she may require the seller to rectify the issue (and when appropriate duly deduct from the original sale price) [Choshen Mishpat 232:5, Nesivos 7].
  3. Repairing the defect is the seller’s responsibility. The consumer may annul the sale if the merchant does not fulfill his/her duty to repair the merchandise [Ulam Hamishpat Choshen Mishpat. 232].
  4. Time-sensitive defects are not considered rectifiable after the time expires [Choshen Mishpat 232: Bach 4].
  5. A merchant remains liable for merchandise en route to the consumer via the merchant’s employee or courier [Choshen Mishpat 340:6].

 

 

Application:                                                                                   

Hyman ordered schnitzels to be delivered to his bar mitzvah hall. The sale included the production of the food and the delivery. While The Schnitzel Place prepared the food, they delivered it to the wrong destination. Hyman encountered a time sensitive defect in the sale. The Schnitzel Place has a small window of opportunity to re-deliver it to the correct destination. Otherwise, Hyman may demand a full refund for the food.

This applies even if The Schnitzel Place outsourced their deliver service to a third party. If however, the delivery service were to be employed by Hyman, Hyman is not absolved from paying The Schnitzel Place for the food.

A Shas Full of History: The Tenth Commandment & High Pressure Sales     Issue #: 247

A Shas Full of History: The Tenth Commandment & High Pressure Sales The following incredible fam ...

A Shas Full of History: The Tenth Commandment & High Pressure Sales

The following incredible family tale about my great-grandfather, Rabbi Dr. Joseph Saffra zt"l and  Hashem’s Providence was documented by my uncle, David Seidemann Esq of Lawrence, NY.

I have included excerpts from his article relevant to the Halachic discussion herein.

From the other side of the bench

By David Seidemann

One half hour earlier and the SS soldiers would have snatched him. But 30 minutes before the soldiers stormed through the back door, Rabbi Dr. Joseph Saffra z”tl ran out the front door. Some say he saw the angry crowds gathering on that November 9, 1938 night in Frankfurt, Germany. Others say that Rabbi Saffra received inside information from a local police chief upon whom he had performed dentistry work. For Rabbi Dr. Joseph Saffra was not just a rabbi, he was also an oral surgeon. They turned the entire house upside down that night, screaming “Where’s the rabbi, where’s the rabbi?” They returned every few days ransacking the home as those that remained trembled in fear. “Where’s the rabbi?” they demanded each time.

He fled that night, Kristallnacht, to Holland by train and then to America by boat. It wasn’t until a year later that he was able to send for his wife, three daughters and a son who was barely a year old. The banks were closed when he fled and even if they had been open, they weren’t giving money to Jews. Pressed for money with only minutes to spare, Rabbi Saffra was forced to sell his most prized possession, a set of Shas (Talmud)…

A complete set of Shas was a rarity in Frankfurt, Germany in those days and Ernie Guttmann wanted one. No one knows exactly how much Guttmann paid Rabbi Saffra for the set of books, but it was sufficient to get the rabbi to Holland.

End of scene one of what turned out to be an amazing story involving, Rabbi Joseph Saffra…

Scene two. Rabbi Saffra sends for his wife and children and settles in New York. Though reunited with his family, his set of Talmud books, his second love, remained in the hands of another.

Scene three. Guttmann and his family survive the Holocaust and move to America. His wife passes away. Guttmann takes up residence in Baltimore, Maryland.

Scene five. A young man named Shmuel Tarshish from Chicago marries a young lady, Adina Zehnwirth from Queens. They settle in Baltimore.

As it turns out, Tarshish’s great aunt is Guttmann’ second wife Debbie and Tarshish takes his new bride to meet Tante Debbie and her husband Ernie.

As they sit making small talk, Adina Zehnwirth Tarshish makes mention of the fact that her grandfather was from Frankfurt. Ernie’s eyes lit up “I was a young yeshiva boy in Frankfurt, perhaps I knew your grandfather,” he said. Adina Tarshish relayed that her grandfather was Rabbi Joseph Saffra and Ernie’s mouth dropped. He got out of his seat, ran to his book shelf and showed Mr. and Mrs. Tarshish the set of Talmud that he, Mr. Guttmann, had purchased from Adina’s grandfather in November of 1938.

On the spot, Mr. Tarshish asked if they could purchase the set of Talmud with Rabbi Joseph Saffra’s name in it, the set of books that set him free and saved his life, and ultimately the life of Rabbi Saffra’s family. Right then and there Aliza and Shmuel offered to buy the set at any price, the set that set Adina Zehnwirth’s mother free to come to America and give birth to her. Mr. Guttmann declined, for the Talmud books were very precious to him as well.

… Scene six. June 2001. Ernie Guttmann passes away … In June of 2002 the children of Ernie Guttman contact Shmuel Tarshish and inform him that the Shas, the holy books that once adorned Rabbi Saffra’s bookshelf in Frankfurt, are his for the taking, for free. “Your wife’s grandfather sold them under duress, to save his life, and the lives of his family. They belong to you; come and retrieve them.”…

The Dilemmas:

The Guttmanns said that Rabbi Saffra sold it under duress. Was the sale valid?

May the Saffras request to buy it back?

How much pressure can they place on Guttmann to do so?

What is the validity to the Guttmann children’s gift to the Saffra grandchildren?

 

 

What is the Halacha?

 

The Answer:

The sale was valid. The Saffras may investigate whether it is up for sale but cannot even devise a scheme to get Guttmann to acquiesce to sell the Shas. See detailed explanation under what circumstances the Saffras may keep the Shas.

 

Detailed Explanation

A Shas full of History invokes the following Halachos.

High-Pressure Sales

How does Halacha view and deal with high-pressure sales?

Generally, the result of one’s actions are not attributed to him/her if the performer was forced to act. This applies to sins which one is forced to do, as well as legal actions. Thus, if one is forced to give a gift or sign a document of sale, there is no legal validity to the act. The result of one’s actions needs cognitive presence to warrant attributing them to the actor. An act under duress lacks the necessary cognitive presence [Aruch Hashulchan Choshen Mishpat 205: 1].

Nevertheless, when one is forced to sell an article at market value, and the “seller” ultimately agrees to accept the fair value, even if he/she agreed to the transaction after having physically received the money, the sale is valid.

Since, the seller is ultimately not losing anything financially, he/she fully acceded to the sale and reached the requisite cognitive presence to legally transfer ownership of the said article. This is only true if the seller actually received the money. It is questionable if an IOU is sufficient [Aruch Hashulchan Choshen Mishpat 205: 2, 3].

[When one is forced to sell the said article below the fair value, whereby the seller does incur a financial loss from the sale, it is as though being forced to give a gift and the sale is invalid.]

Yet, to counteract attempts at high-pressured sales, when threatened with extreme measures of pressure, Halacha permits a seller to preempt a high-pressure sale with a “preemptive invalidating disclosure” called a מוֹדָעָה; that is; a statement in front of two witnesses who are aware of the existing extreme pressure tactics that the “subsequent act of sale” lacks legal validity and is only being done to placate the ire of the attempting buyer.

This legal statement does not need to be recorded in a document [Aruch Hashulchan Choshen Mishpat 205: 4].

Examples of extreme measures of pressure which lend itself for a “preemptive invalidating disclosure” include: the buyer or his/her proxy threatening the seller physically or with financial sanctions to force the seller to sell the property.

The threat though, must be one which the buyer or his proxy can plausibly carry out [Aruch Hashulchan Choshen Mishpat 205: 6].

Even if it is difficult for the buyer to carry out the threat, if he/she instills clear and present fear in the heart of the seller, whereby traumatizing the seller, such a pressure as well, suffices for the seller to invoke a מוֹדָעָה [Aruch Hashulchan Choshen Mishpat 205: 6].

However, if the seller is forced to sell the article to get money to pay a debt, even if the debt was imposed upon him/her in a threatening way, the seller cannot invoke a מוֹדָעָה. Instead, such a scenario, is viewed as though the seller pressured him/herself into selling it.

A seller may not invoke a מוֹדָעָה if he/she decided on his/her own volition to sell the article even though he/she was in a tight spot for other reasons not related to the actual sale of the said item; for in truth, almost any sale of a personal item is done so because the seller needs money for one reason or another. The מוֹדָעָה institution is intended specifically to counteract unethical high-pressure sales [Aruch Hashulchan Choshen Mishpat 205: 7, 8].

Nevertheless, as a gift is a one sided act on the part of the grantor, a preemptive מוֹדָעָה can always be issued before giving a gift or absolving someone from a debt which invalidates the act even if no pressure tactics existed. So long as the grantor reveals beforehand that he/she has no intention to give value to his/her words, the gifting act lacks validity [Aruch Hashulchan Choshen Mishpat 205: 9].

An example of a gift is the giving of a get when the husband is not required to do so by Halacha. Thus, in truth, when a man gives a woman a get when not required to do so, one runs a risk that he issued a preemptive מוֹדָעָה before two witnesses invalidating any subsequent giving of a get.

Thus, in order to protect the woman from such behavior, a clause is added into every get, whereby the man signs that he annuls any possible preemptive מוֹדָעָה that he may have made.

 

Because of this possibility, when Beit Din arranges a get, they instruct the man to declare:

שִׁמְעוּ אֵלִי! אַתֶּם עֵדִים שֶׁאֲנִי מְבַטֵּל לִפְנֵיכֶם כָּל מוֹדָעָה וּמוֹדָעָה שֶׁיָּצְאָה מִמֶּנִּי וְכָל דְּבָרִים שֶׁאָמַרְתִּי שֶׁאִם יִתְקַיְּמוּ יִגְרְמוּ לְבִטּוּל הַגֵּט וְכֵן פּוֹסֵל אֲנִי כָּל עֵדִים שֶׁיּוֹדְעִים שֶׁאָמַרְתִּי כָּל דָּבָר הַפּוֹסֵל אֶת הַגֵט וכולי.

 

Application

Though, the Guttmann children said that Rabbi Saffra sold his Shas “under duress”, such pressure would not invalidate the sale.

While the Nazi’s wanted his life, they did not say, sell the Shas or we’ll kill you.” He needed money. As he was pressed for money, he decided that it was worth it for him to sell the Shas at that time. Rabbi Saffra could not invoke a preemptive מוֹדָעָה in front of witnesses to disqualify such a sale.

The Shas belonged to Ernie Guttmann.

Mistaken Gift?

In June of 2002 the children of Ernie Guttmann contact Shmuel Tarshish and inform him that the Shas, the holy books that once adorned Rabbi Saffra’s bookshelf in Frankfurt, are his for the taking, for free. “Your wife’s grandfather sold them under duress, to save his life, and the lives of his family. They belong to you; come and retrieve them.”

While incredibly noble, and sincerely appreciated, their expressed reasoning was Halachically inaccurate. Rabbi Saffra decided on his own volition that it was worth it for him to sell the Shas to Ernie. He was not forced to do so. He received a fair market value for the Shas. The sale was valid and Rabbi Saffra could not even invoke a מוֹדָעָה in front of witnesses to disqualify such a sale.

Even if the Guttmann’s were correct in their statement that the sale was under duress, and as such are returning the Shas to the Saffras, them wouldn’t the Saffras be required to refund the money to them?

Instead, the Guttmann children acted completely benevolently and gifted the Shas they legally inherited from Ernie, because they understood the depth of sentimental value the Shas held in the hearts of the Saffra children. They understood that Ernie legally purchased it and were gifting it back to the Saffra family.

Mi ke’amcha Yisrael!

 

Do Not Covet

Ernie Guttmann was uninterested in selling. Under what conditions may the Saffra grandchildren try to attempt at buying the Shas?

This issue invokes the tenth commandment of the Ten Commandments; Thou shalt not covet.

When may a petitioner request to purchase an article and when is it forbidden to do so?

וְלֹא תַחְמֹד אֵשֶׁת רֵעֶךָ וְלֹא תִתְאַוֶּה בֵּית רֵעֶךָ שָׂדֵהוּ וְעַבְדּוֹ וַאֲמָתוֹ שׁוֹרוֹ וַחֲמֹרוֹ וְכֹל אֲשֶׁר לְרֵעֶךָ:

 

And you shall not be chomed your fellow's wife, you shall not (be mis-aveh) desire your fellow's house, his field, and his slave and his maidservant, his ox and his donkey, and anything that belongs to your fellow [Devarim 5: 18].

 

The tenth commandment includes two directives  

1)     lo sachmod and 2) lo sis-aveh

 

Rambam and Shulchan Aruch differentiate between the two.

Lo sis-aveh = do not fantasize and devise a plan to obtain another's object Lo sachmod = do not implement the plan about which you fantasized to attain; either by coercion, or pressure, even if you pay for it.

While both sins prohibit festering the drive to attain another' property Lo sis-aveh is strictly emotional, while Lo sachmod is taking the emotion to the next step; culminating with successful action.

 

Q 1). If A sees an article belonging to B, may A ask B if the article is for sale?

Yes. There is no prohibition of lo sis-aveh or lo sachmod to desire an article that you know is available for sale [Rabbeinu Yona Sha'arei Teshuva 3: 43].

Thus, A may investigate if the article is for sale. Strictly investigating if something is for sale is not a transgression of wanting another person's property. You simply wanted to know if that article that your friend presently has, is up for takes in the future [Minchas Pitim].

A must realize though, that bearing an underlying desire for the article even if the owner is uninterested in selling it constitutes lo sis-aveh and pressuring the seller to part with his/her belongings when you know that he/she really does not want to do so, is a transgression in process of lo sachmod [Rabbeinu Yona ibid.].

  1. 2) A potential buyer approaches a homeowner and asks if the home is for sale. The owner says “no”. The potential buyer continues to sweeten the deal; hoping the homeowner will agree. Is such behavior permissible?

If the reason why the homeowner does not want to sell is simply financial; meaning, he/she thinks that he/she could only get x for it and are unwilling to sell for so little, and the prospective buyer tells the homeowner that the price is something they would consider, then it is permissible.

However, if the homeowner is simply uninterested in selling, for example, they love the neighborhood, are idealistic about where they are living, then to offer the homeowner an offer that he/she cannot refuse, is a transgression of the prohibitions of lo sis-aveh and if successful in procuring, lo sachmod [Rambam Sefer HaMitzvos 264].

Q 3). While the coveter transgresses lo sis-aveh, does the coveter transgresses lo sachmod, if after pressuring the seller to sell, the seller acquiesces and agrees to sell?'

Even if he pays for the article, and the seller agrees to sell it, if the seller does so begrudgingly, the buyer transgresses the prohibition of lo sachmod.

Rambam rules that even if the seller subjects to the pressure and agrees to sell it, although the sale is valid, the buyer transgressed lo sachmod because he pursued procuring an article that the seller initially did not want to sell.

As Maharal [Tiferes Yisrael] writes: while lo sachmod is completed when implementing the plan, the beginning and root of the sin is the emotion.

 

Application

Ernie did not want to sell. The Shas was precious and sentimental to him. The Saffras were permitted to have asked initially whether it was up for sale. But once they understood that the reason why Ernie refused to sell was not because the price was too paltry, devising a plan to try to pressure Ernie to sell it would constitute lo sisave and carrying out their plan, even if paying a steep price for it would constitute lo sachmod.

 

The Guttmann children subsequently gifted the Shas back to the Saffras wholeheartedly. In fact, they gifted it back a whole year after Guttmann passed away. Arguably, we can assume that it was not gifted because they felt pressured, rather out of the benevolence of their hearts. It was a valid gift. The Saffras may keep the Shas.

Shattered!     Issue #: 034

Shattered! A hot Shabbat meal, an accepting aura, and a pervasive love of humanity brought hundreds ...

Shattered!

A hot Shabbat meal, an accepting aura, and a pervasive love of humanity brought hundreds of university students, yeshiva fellows, families of hospital patients and curious onlookers to the Goodman home in Boston, Massachusetts.

A Goodman Shabbat experience was indeed one of a kind. Jerry's melodious voice and Lisa's mouth-watering cuisine left behind a flavor hard to forget. Dozens of guests from all walks of life would join together for an evening of love, song, inspiration, good food and a sense of purpose.

Jerry and Lisa left no stone unturned to fulfill the mitzvah of Hachnasat Orchim [Genesis 18:1, Maseches: Shabbos 127b], welcoming wayfarers in a most magnanimous, humble, and friendly manner. [Ahavas Chesed 3:1]

In time, the Goodmans needed to add an additional table in their dining room to accommodate the growing crowd.

One Wednesday, Jerry read online that a Mike Gerber was selling a used glass dining room table and matching chairs for three-hundred dollars. Jerry and Lisa drove their van over to Mike's house to view the table. The stunning table seemed like the perfect buy. It was large enough to fit another dozen guests comfortably. Lisa loved the table's style as it fit perfectly with her dining room décor. Moreover, she took an exceptional liking to the chairs because they were extremely comfortable and great for back posture.

Before agreeing to buy the set, Jerry asked Mike if the glass was attached to the table. Mike assured Jerry that it was indeed attached. Jerry looked at Lisa for her approval and Lisa winked in the affirmative. Jerry accepted the offer and handed Mike three crisp hundred-dollar bills.

Jerry and Lisa then brought the chairs out of the house and placed them in their van parked in Mike's driveway. While Lisa held the door open, Jerry and Mike began carrying the table to the front door with care and precision. As they neared the door, they tilted the table sideways so that it would fit through the door. Suddenly, they felt the weight rapidly shift as he glass top fell off the frame, broke the antique umbrella stand by the door, and exploded into countless shards on Mike's floor.

Looking over the remains of the table, it was clear that the top had simply been a heavy pane of glass resting on four suction cups attached to the wrought iron frame.

- What is the status of the sale of the table and chairs? Does Jerry receive a refund? If so, how much?

- Does Jerry share responsibility for any of the damage that occurred to the table or the umbrella stand?

 

What is the law?

[Based on a true story: Submitted by Judah Spetner – Member, Cincinnati Community Kollel – Cincinnati, OH]

 

The Answer

The Goodmans may demand their three-hundred dollars back, yet they must return the chairs. Jerry is absolved from paying for the damage to the umbrella stand.


Detailed Explanation

 

This case invokes the following two laws:

A consumer may rescind a deal upon finding a blemish in the merchandise purchased. [Choshen Mishpat 232:4]

One is liable for intentional and unintentional damages exacted on an article belonging to a third party.

One is absolved from paying for unintentional and completely unexpected damage he or she causes. [Choshen Mishpat 378:1, Sha"ch 2]

The Table and Chairs

While objectively there is nothing faulty with a glass tabletop detached from its frame, Jerry made it quite clear that he would agree to purchase only a table fastened to the wrought iron frame. Consequently, we deem anything short of that a “blemish” in the merchandise. Although Mike did not delude his customers intentionally, nevertheless, the Goodmans did not receive the merchandise they intended to buy. Hence, if they wish, they may rescind the entire deal even if they had already performed a legally binding act of acquisition.

Note: At the time of publication, it was brought to our attention that Jerry may have confirmed the attachment of the glass top merely to verify that the table could be turned on its side without consequence - a detached glass top would then not have rendered the table inferior in any way. We plan to discuss this in an addendum to next week's email.

While Lisa did indeed take an exceptional liking to the chairs, it is clear that the table and matching chairs were part of one purchase.

Thus, if the Goodmans decide to void the sale, they must return the chairs to Mike.

The Umbrella Stand

A person is responsible for his or her actions. Hence, one is liable for intentional and unintentional damage he or she causes. Nevertheless, one is not responsible to take precautions against a completely unintentional and unexpected damage. Our situation is a case in point. Jerry had no idea that the glass was detached from the frame. There was no way he could have taken precautions against damaging the umbrella stand. Hence, he is absolved from the damages incurred as a result.

see http://www.aish.com

Save the Koalas!     Issue #: 136

Save the Koalas!   The Koala was hunted almost to extinction in the early 20th century; largely ...

Save the Koalas!

 

The Koala was hunted almost to extinction in the early 20th century; largely for its fur. Millions of furs were traded to Europe and the United States, and the population has not fully recovered from such decimations.
 
Save the Koala Bears’ marketing experts inundated the public with an attractive and aggressively professional online campaign for their annual Chinese auction - featuring their celebrated mascot Eucalyptus. It was hard to find an Australian not buzzing about the impending Koala event. 
 
The Levi’s were elated when the phone rang after Sunday night salmon dinner. 
 
 “Hello Mr. and Mrs. Levi, Eucalyptus speaking. On behalf of the Australian Koala society, I am excited to inform you that you won the Dell New XPS 13 Ultrabook, valued on Dell’s website at $1499; quite an amazing deal for a ten dollar donation towards my kin. Your new Ultrabook will arrive at your home within forty-eight hours.” 
 
The excitement at the Levi’s though, was short lived.  The Ultrabook malfunctioned and crashed numerous times within the first few days of usage. The Levi’s hired a technician who confirmed that the motherboard contained failed capacitors, which left its trail of electrolyte across the board.
 
The Levi’s paid Save the Koala Bears ten dollars for a ticket to win the Ultrabook. They won the laptop, then had to pay for a technician and it still did not work.

 

Do the Levi’s have any claim against "Save the Koala Bears" or should they have considered keeping low expectations for a virtual giveaway? 
 
 

 

What’s the Halacha?
 

 

The Answer:  

 

The Levi’s may require Save the Koala Bears to deliver a new working computer but not to pay for the technician. 
 

 

Detailed Explanation

 

Save the Koalas invokes the following four Halachos.

 

1. A consumer who noticed an unforeseeable blemish in the merchandise after the transaction was completed, is entitled to recourse ad infinitum provided that the consumer did not subsequently utilize the article. Otherwise, usage of the article indicates a consent to the deal [Choshen Mishpat 232: 3 Pischei Teshuva 1].

 

 2. Unless otherwise stipulated, transaction terms are subject to local accepted custom. Hence, the classification of blemishes worthy of recourse are subject to local custom [Choshen Mishpat 232:6].

 

3. Unless otherwise expressed, a contemporary consumer of a new article expects to receive merchandise void of previous defects or blemishes. (Unlike an error in quantity, which can be easily rectified without altering the essential product, and as such, the consumer cannot dissolve the sale if the merchant can supply the requested volume, a refurbished product is not a new product, and as such, having to refurbish or repair the merchandise is not considered rectifiable.) [Choshen Mishpat 232: 1, 7, Pischei Choshen Hilchos Ona'ah 13: 6].

 

 

4. One is absolved from paying for unintentional indirect damages [Choshen Mishpat 386, Imrei Yosher].

 

Application

When purchasing a new item, the consumer can expect to receive unblemished merchandise. Does a Chinese auction winner have the right to expect to win unblemished merchandise, or should the winner consider that the donated item came from stock that the donor store could not sell? 
 
Dayan Chaim Kohn ruled that it is wrong and unjust for an institution to auction defective merchandise without being upfront with their clientele. 
 
Objectively, a Chinese auction winner can require the institution to deliver unblemished merchandise. (In a society, where it may be unfortunately common to receive blemished merchandise at a Chinese auction, the winner’s expectations would adjust accordingly.)
 
However, "Save the Koala Bears" is absolved from paying for indirect and unintentional damage caused. 
 
Hence, if the winner hired the technician on his/her own volition, the winner cannot require the institution to pay.
 
As the institution is required to deliver an unblemished computer, if the winner does not mind a repaired computer, the institution may see it profitable to hire a technician. Thus, before hiring the technician, it is sensible for the winner to confer with the institution. 
 
Otherwise, the winner may oblige the institution to supply a new working computer.

Pray Pal!     Issue #: 134

Pray Pal! The holiday prayer services are replete with much beautiful poetry which typically stri ...

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's the Halacha?

 

The Answer

Unless local business practice differs, Ari may dissolve the sale from years gone by, if he immediately stopped using the machzor. 

 

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.

 

 

About Project Fellow     Issue #: 000

Explore contemporary case studies via  the time-tested prisms of three thousand years of  ...

Explore contemporary case studies via  the time-tested prisms of three thousand years of  Jewish ethics and business law through our stimulating activities and guided modules.

Discover your timeless and deep-seated inner ethical barometer!

************************************************************************************

About Project Fellow

Project Fellow-Yesharim based in Yerushalayim is a cutting edge, grassroots movement at the forefront of advancing global ethics awareness and bringing Jews closer to one another.

Via progressive,  engaging, and interactive educational methods, PROJECT FELLOW  tackles our consistent and compounding ethical dilemmas and provides clear, practical and time-tested guidance.

Over the years, Project Fellow has sponsored:  multi-level award-winning curricula, seminars, webinars, lectures, Jewish outreach programs and material, publications, weekly emails, and a growing array of ethics awareness programs geared for the professional, classroom and family settings.

The Yesharim Research Center serves as Project Fellow’s think tank, studying and analyzing relevant material.

PROJECT FELLOW is endorsed  by foremost Jewish deans, principals, teachers,  attorneys, and justices of law, business executives,  community  activists, outreach Rabbis, and influential leaders in major Jewish organizations.

For Questions or to schedule a class: email us @ info@projectfellow.org

Vacated Vacation!     Issue #: 135

 Vacated Vacation! After a year of hard and dedicated work at Hillside Educational Center, Aviv ...

 Vacated Vacation!

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 June 28th to July 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.


 

What’s the Law?

 

The Answer:                                                      

Aviva and Rina cannot demand reimbursement for their stay in the Dan Panorama. Whether they may withhold any or all payment or demand reimbursement is subjective to the understandings behind short term rentals. See Detailed Explanation below.  

 

Detailed Explanation


Vacated Vacation invokes the following three Halachos.

 

  1. One is absolved from paying for unintentional indirect damages [Choshen Mishpat 386, Imrei Yosher].

 

  1. 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 [Choshen Mishpat 232: Sm”a 2].

 

  1. At times, certain defects in a merchandise can render the product unfit for a specific clientel's usage, but for others the product remains functional. When it is impossible to prove the clientel to which the consumer belongs, we respect the status quo and leave the merchandise and money in their respective jurisdictions [Choshen Mishpat 232: 23].

 

Application

 

The landlord unintentionally indirectly caused the vacationers a loss. Thus, the landlord is absolved from paying for their stay at the Dan Panorama.

Objectively, a backed up drainpipe can be fixed. As such, a renter should be required to remain in the house and simply have the landlord care for the leak in a timely and efficient fashion (and perhaps subtract rental money for the inconvenience).

 

However, there is reason to assume that the short term vacationers intended upon renting a hassel free living quarters.

 

As such, dealing with a stuffed up drainpipe in a foreign country does not meet the description of the "sale". The situation cannot be fixed; and as such, the renter may leave and need not pay for the remainder of the days reserved.

 

As to exactly how much bother the renter was initially willing to endure, upon the "deal's consummation" is subjective and will be difficult to prove. As such, when doubts arise as to whether or not conferring with the landlord and dealing with arranging for a plumber to repair the drain in a timely fashion is within the renter's initial reasonable expectations, we would have to respect the status quo.

 

Practically speaking, if it would be able to be fixed in a timely fashion, the landlord would keep the deposit, but we could not obligate the renter to pay for the rest of the days so long as we cannot prove that they were initially willing to rough it for a few hours if need be.

 

We can assume that the vacationers wished to rent the apartment for a ten day bloc and did not wish to move their belongings from place to place during their stay. As such, we cannot obligate them to return to the original apartment even after the landlord repairs the leak.

The Baffled Babysitter XIV     Issue #: 133

The Baffled Babysitter XIV A community-wide event without Mrs. Berman? Inconceivable! That's where S ...


The Baffled Babysitter XIV

A community-wide event without Mrs. Berman? Inconceivable! That's where Sara, her favorite babysitter would fill in; running hoards of chores and helping astutely around the house. All debacles aside, Meira, and the twins; Yair and Yonatan were quite fond of Sara and craved their quality-time spent with her, immeasurably.

Shavuot cooking was in the air and Mrs. Berman's annual CBM (Community Board Membership Cheesecake Baking Marathon) for the Central Beit Midrash All Night Study Event. Less than one day remained till crunch time!

The grocery order arrived at 10:00 AM and Sara was off to a frenzied start in the kitchen. A few stark errors in the order only added to the pressure cooker. A twenty lb. bag of potatoes arrived, instead of five. No time to return them to the store. Three and a half times the price of five. Use five lbs.? Will the store accept fifteen back after the holiday? Forget the potato kugel? Impossible!

Sara decided to improvise when she opened the newly purchased food processor which was missing an attachment.

A jumbo institutional size cream cheese received, instead of the smaller size. Certainly can't use part and return the rest! "But...She asked and paid for a small one and they gave her a large. She needs to make the cheesecake this morning, now!" 

Cakes and kugels in the oven; the twins went in to nap. Yair was up an hour later, bathed and dressed in his new striking holiday outfit from the JAP. Mrs. Berman had ordered two matching outfits size 6 online for the twins and was eager to take pictures of the twosome and email them to her Mom in the States before candle lighting. Sara cut the tags off of Yonatan's as well. Soon Yonatan awoke, took a bath and proudly donned his over-sized fashion ware.

 

Ø  May Sara use five pounds of potatoes and return the rest after the holiday?

Ø  May the Berman's demand a full refund for the food processor or only an attachment replacement?

 

Ø  May they use the cream cheese?

 

Ø  Mrs. Berman ordered two of the same sized outfits. They were misfits. She removed the tags before trying them both on her kids. Even if she'd be allowed to return one, her boys would not match anymore. May she force JAP to refund her for none, one, or both?


                       

What is the Law?

 

The Answer:

See detailed explanation.

Detailed Explanation

 

The Baffled Babysitter XIV invokes the following five laws.

 

  1. When merchandise’s metrics are even slightly erroneous, recourse is permitted even years after the sale. [Choshen Mishpat 232:1].

 

  1. 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.

 

  1. 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].

 

  1. However, using the article under “clear circumstances of 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 “clear circumstances of desperation” 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].

 

  1. 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:

 

  1. a) When you purchase clothing online do you try them on the children before removing the tags?
  2. b) When you purchase two matching outfits do you view it as one or two separate purchases?

 

She answered:

 

  1. 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.
  2. 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.

Florida Feud!     Issue #: 181

FLORIDA FEUDMarc Schiller from Rhode Island was a boating enthusiast and loved spending his winters ...

FLORIDA FEUD
Marc Schiller from Rhode Island was a boating enthusiast and loved spending his winters near the sundrenched Dumfounding Bay. All in all, Marc owned five adjacent condos in the Del Prado in Aventura, Florida. 

Leaving one vacant for his personal use, Marc authorized Richard Realtors to  lease the remaining four.  When Marc arrived in November 2013, he was in for an unpleasant surprise. His ex-brother-in law had leased one of his adjacent apartments through Richard. 
 
 Marc wanted to annul the lease.

WHAT'S THE LAW?

The Answer

If Richards did not inform the customer that he was working for Schiller, Schiller may not annul the transaction. Otherwise, he may annul the transaction. (See Detailed Explanation).

Detailed Explanation
 

Florida Feud invokes the following Halachos.

1. If the agent informs the customer that he/she is acting on behalf of a specified party, the customer understands that the grantor maintains the final say whether he/she wishes the deal to go through [Choshen Mishpat 185: 5]. 

2. Thus, there are times when the grantor may nullify the transaction upon discovery of a grantor’s unsatisfactory decision of critical issues; some of which may include the price or at times the nature of the customer [ibid. Chochmas Shlomo].

3. If the grantor authorized the agent to use his/her discretion in determining the selling price of the merchandise, as long as the agent’s decision was within reason, the grantor may not dissolve the transaction [Choshen Mishpat 185: 5, Rema, Sm”a].

4. People are generally particular about the nature and disposition of their neighbors. As such, if agent informs the customer that he/she is acting on behalf of a specified party, the grantor may nullify the transaction upon discovery of an unsatisfactory customer [Chochmas Shlomo].

5. However, if the grantor gave express jurisdiction to the agent to use his/her discretion in choosing the customer, the grantor is unable to void the transaction, unless the agent’s choice was undoubtedly unsatisfactory.

6. If the agent did not inform the customer that he/she was acting on behalf of another party, the customer assumes that the agent will have the final say. 
As such, the grantor may not nullify the transaction upon discovery of unsatisfactory issues [Choshen Mishpat 185: 5].

7. Note: It is questionable if the grantor may dissolve the transaction upon discovery of unsatisfactory critical
issues if the agent informed the customer that he/she was acting on behalf of a third party but did not specify the identity of the grantor.  Perhaps the customer reckons that by not disclosing the grantor’s identity, the agent took final responsibility for the sale to go through.  

Because of this uncertainty, in such a situation, we would respect the status quo of the merchandise and not compel the customer to relinquish it to the grantor. 

8. If the grantor had specifications that the agent did not meet, the transaction remains valid if the customer was not informed that the agent was acting on the grantor’s behalf. The agent would be liable to reimburse the grantor if a loss was incurred do to his/her bad judgment [Choshen Mishpat 182: 2]. 

Application

If Richards  informed the customer that Schiller was the landlord, Schiller may annul the transaction. 

Arguably, even if Schiller authorized Richards to use their own discretion in choosing the tenant, it could be obvious beyond reasonable doubt that Schiller would object to his ex-brother in law renting an apartment adjacent to his own residence.

If Richards did not inform the customer that he was working for Schiller, Schiller may not annul the transaction.  

However, there is room for discussion whether Richard would need to reimburse Schiller for his judgment. Should he have known about the relationship? What type of reimbursement is appropriate? Under such a circumstance, a competent Halachic authority should be consulted.

Misfit     Issue #: 104

MISFIT!  The familial excitement knew no bounds. Mom and Alisa scurried to and fro, while the s ...
MISFIT!
 
The familial excitement knew no bounds. Mom and Alisa scurried to and fro, while the sisters and daughters-in-law shopped away. Alisa's long awaited wedding day was approaching fast and all were determined to outfit their families fittingly. Never mind that the anxiety, blamed on the myriad of purported ephemeral details often clouded the joy of the moment: the presentation had to be just so and no stones could be left unturned.   Rentals, dressmakers, store proprietors, and accessory salesmen all failed to fit the sister of the bride's fancy.
 
Finally, three hours before pictures, as the anticipated moment rapidly approached, Rina found a beautiful outfit in a high end fashion store located downstairs of  the luxurious hall. The proprietor told her that it fit perfectly, convincing her that it was made just for her.    Smiling from ear to ear, sporting her new wear, Rina made her way up the elevator. Something just did not feel right, in fact in some places a little loose and others quite a bit tight. Time was ticking. Her mind raced to and fro. "It looks pretty nice. I have nothing else now. But it really is the wrong size. The guy just wanted to make a sale! What a dishonest salesman! Should I keep it? Should I return it?   OK. I'm returning it... immediately after the wedding." 
 
 

What is the Law?
 


The Answer:  See Detailed Explanation
 
 
Detailed Explanation
 
 
Misfit implicates the following four laws.
 
1. A consumer who noticed a blemish during the course of the transaction, yet continued pursuing the deal, has no subsequent recourse [Choshen Mishpat 232: 3 Pischei Teshuva 1].
 
2. Similarly, a consumer cannot reverse a done deal upon finding a blemish which a responsible consumer should have realized before completing the transaction [Choshen Mishpat 232: 3 Sm”a 10].
 
3. A consumer who noticed an unforeseeable blemish after the transaction was completed, is entitled to recourse ad infinitum provided the consumer does not subsequently utilize the article [Choshen Mishpat 232: 3].
 
 
4.  Consider: On the road, A discovered an unforeseeable blemish in his recently purchased car. A need not be stranded on the way, but may use the car to return to the seller.
 
Thus, a consumer who noticed an unforeseeable blemish during the course of  usage – for which he/she wishes to reverse the deal, may only  continue using the article if the circumstances are similarly extremely compelling. Otherwise, usage of the article indicates a consent to the deal  [Choshen Mishpat 232: 3 Pischei Teshuva 1].  
 
Application
 
Even assuming that Rina was unable to notice the misfit before settling on the outfit, she could only continue wearing the outfit, if she honestly was stuck with no other option i.e. in the middle of the wedding.  
 
One would have to wonder what Rina intended to do should she have been unsuccessful in finding a suitable outfit downstairs from the hall. Worst case scenario, if she did not take along a second best to the hall, she would have returned home and settled for a second best.  
 
Thus, in our case, she noticed the tight fit before the wedding, she should return home and switch outfits. Nonetheless, she would not be required to leave the wedding in the middle and change, if she could not have been expected to discover the tight fit before finalizing the deal.)

Junk Jack or Steinway: Junk Yard Recourse & Who Keeps the Unexpected Find     Issue #: 100

 Junk Jack or Steinway!   "Good Morning Honey. Happy retirement! After a month of celebr ...

 Junk Jack or Steinway!

 

"Good Morning Honey. Happy retirement! After a month of celebrating, it's time to roll up your sleeves. I've been meaning to ask you for almost a decade to please clean out our storage garage. Things have been piling up for thirty some odd years and its clearance time today! Your breakfast eggs will be ready - to your liking, after you contact a scrap collector. "

Bernie Stein of Ackerman Rd. in Saddle River, NJ obediently searched on-line for a local scrap collector. Junk Jack offered to come down for fifty dollars, clear out the garage, leave it spotless, and keep the junk, hoping to pawn off as much scrap as he could.

Bernie Stein's neighbor Nancy Neuberger observed with much interest as Junk Jack began hauling out a dilapidated Steinway piano. With a passion for music, Nancy googled "piano restoration" and "Steinway Pianos" on her blackberry.

Based upon her initial research, considering the piano was a Victorian style Model: L Size: 4'5 built in: 1923, it seemed to her that after restoration costs of $5000, the piano would be worth $25,000.

She surmised that Junk Jack was clueless as to the potential value of the piano and offered him $350 cash for the piano - to which Junk Jack pushed her up to $450.

That afternoon, Lindberg Restorations showed up to Ackerman Rd., looked over the Piano's Action, Keybed, Pedal Systems, Soundboard, Strings, Pinblock, Harp and Cabinet found an envelope inside with $1000 cash and told Nancy that the piece was so damaged that for all intents and purposes, they would need to construct a new piano and her $450 outlay was an investment spent poorly.

Nancy contacted Junk Jack and demanded her $450 returned. Junk Jack responded

"It's a done deal Madam. You took a chance, but I'll take the envelope".

1. May Nancy rescind on the deal?

2. Who gets the envelope, The Stein's, Junk Jack, Nancy, or Lindberg Restorations.

 

 
 

 What's the Law? 

  

 

 

 

The Answer

We present you here with a concise ruling. For a more intricate elucidation, please see the detailed explanation below.

 

Nancy may not rescind on the deal. Lindberg Restorations keeps the envelope (see detailed explanation).

 

 

 

Detailed Explanation
 
 

 

Junk Jack and Steinway implicates the following four laws.

1. Just as a seller may not deceivingly overcharge a buyer; a buyer may not cunningly underpay a seller [Choshen Mishpat 227: 1 ].

2. An integral factor in effecting a legal acquisition is that the "acquirer" needs to either know about the article or will presumably find out about it. Conversely, the "acquirer" does not assume ownership on articles that he/she will presumably never discover [Choshen Mishpat 232: 18 Rema, Choshen Mishpat 268: 3].

3. A finder may keep his/her find when finding a lost article after the loser despaired from retrieving it [Choshen Mishpat 259].

4. When purchasing articles at auctions, flee markets or similar settings where the buyer assumes a calculated risk that the merchandise is faulty, the buyer cannot demand a sale reversal upon discovery of its defects [Rashdam Respona 379].


Application

The Steinway

Nancy figured she could make a killing on the Steinway. She knew that if Junk Jack knew is potential, he would never agree to sell it for $450. Nancy unethically intended on ripping Junk Jack off. In the end she was unsuccessful.

In buying junk from a scrap collector as opposed to a standard merchant,, there is always a calculated risk involved that the merchandise might never work; especially when Nancy knew that it was in need of maintanence before it could work. Thus, she has no recourse claim against Junk Jack.

 
The Envelope

Even if the envelope had belonged to the Stein's and not someone else, the owner had long forgotton about it and despaired from ever retrieving it. While emotinaly detachment from articles within one's property (in the form of despair from retrieval) does not affect a loss of ownership thereof, it does permit others to assume ownership thereof after the article leaves the jurisdiction of the loser. Thus, the initial owner loses the right to claim it back from the "finder". In terms of Junk Jack and Nancy: it was highly improbable for either of them to have ever found the enevelope. Thus, when both Junck Jack and Nancy purchased the Steinway, they did not assume ownership over the envelope.

Consequently, the envelope belongs to Lindeberg the finder. If it is evident that Stein was the initial owner, it would be proper but not obligatory to return the money to them.ultimately dealt directly with their landlord.