Text Size

Email Post

Print Post

Comments (9)

Save Article

New York - You purchased a new cell phone by mail. The phone is defective. You want a refund or a replacement item sent to you immediately. The customer service people say, “We are sorry, but you must send the old one back before we can issue a refund or send you a new one. And you must mail it back at your expense.”

You argue, “Look, your quality control people should have checked it out before you mailed it out to me. You pick it up from me or I will drop it off at a local store that carries your product. But in the meantime send me either another phone or a refund.” Customer service replies, “Sorry we don’t do that.”

Who is correct? With whom does the Halacha lie?

It seems that the Mishna in today’s Daf (Bava Basra 92a) may indicate the answer. The Mishna tells us that if one sells produce to someone else and it is planted but they do not grow, the seller is not responsible to refund the money. Rabbi Shimon Ben Gamliel says that if one sold inedible planting seeds and they do not grow, the seller is responsible for them.

The Shita Mekubetzes quotes the Ran who asks: Isn’t this patently obvious? Why would anyone assume otherwise, it is clearly a case of Mekach Taus – an erroneous sale. There is no need for this to appear in our Mishna!

The Ran answers that Rabbi Shimon Ben Gamliel, in actuality,is not teaching us that it is a Mekach Taus – an erroneous sale. Rather, he is teaching us the protocols of refunding the sale. The seller cannot claim that he will only refund it if the seeds are returned. He must return the money and worry about getting the seeds back on his own.

The Shulchan Aruch (CM 232:20) rules like Rabbi Shimon Ben Gamliel, but does not discuss the protocols of refunding the sale. It would seem that if the Ran is the final ruling in halacha, then our customer service representative is wrong and they should refund the money. The Ritvah and the Meiri also agree with the Ran’s position. Indeed, the Ritvah extends the ruling to all business dealings.

One may perhaps raise the argument that the Ran only gave this explanation in our Mishna’s case, where the seeds are no longer extant. However, when the item is still in existence, perhaps the refund protocols are different! This counter-argument is, in fact, raised by the Raavad in Hilchos Mechira (16:3). However, the Maggid Mishna proves that the Rambam (ibid) holds otherwise.

The Shita Mekubetzes quotes the Tosfos HaRosh in explaining that in fact, the seller should have checked the merchandise the make sure it was what it was purported to be.

But now what? Can’t the customer service representative claim, “Kim Li Kehani Poskim like the Raavad? I am certain that the halacha is like the Raavad in this regard and since I am holding onto the money (Muchzak) , what I say goes!”? The answer to this is, “Yes, he can. However, if you paid by credit card there is nothing in ‘Muchzak’ which forbids you from instructing the credit card company not to pay it.”

The moral of the story? Always pay by credit card if you can.

This edition of VINDAF VIEWS has been sponsored for the yeshua of Shalom Rubashkin by a friend.

Would you like to be on an email list to receive this Daf? Sponsorships of the Daf l’ilui nishmas are also available. For further information please email yairhoffman2@gmail.com