Mr. Miller was heading out to the store during his lunch break. “Could you please pick up a dozen bagels for me while you’re out?” asked his colleague, Mr. Feldman. “I’d like them for supper tonight.”
“Sure,” replied Mr. Miller.
When Mr. Miller got to the grocery store, he saw that bagels were featured on sale, significantly cheaper than the cost in the adjacent bagel store. He decided to buy the bagels there.
Mr. Miller returned with the package of bagels. “The grocery had an excellent sale on bagels,” he said, “so I didn’t go to the bagel store.”
Mr. Feldman examined the bagels. There was reliable kashrus certification on the package, but it didn’t say pas Yisrael. “It seems that these bagels are not pas Yisrael,” he said.
“So what?” asked Mr. Miller. “You always buy bread and cake in the grocery store and are not careful to eat only pas Yisrael.”
“That’s true,” replied Mr. Feldman. “But now we’re in Aseres Yemai Teshuva! Shulchan Aruch writes that even people who are not careful about pas Yisrael during the year should be so during Aseres Yemei Teshuvah.”
“You’re right,” said Mr. Miller. “I forgot about that, but you didn’t specify that you wanted me to buy only pas Yisrael! Bottom line, these bagels are kosher.”
“I expected you to remember,” replied Mr. Feldman. “In any case, I won’t eat these bagels for supper tonight, nor will they last till after Yom Kippur.”
“I don’t know if they can be returned,” said Mr. Miller. “What should we do about the money?”
He called Rabbi Dayan and asked:
“Does Mr. Feldman have to pay for the bagels?”
“Food bought that turns out to be non-kosher, such as an animal bought for slaughter which proves treif, is considered a mekach ta’us (erroneous purchase),” replied Rabbi Dayan. “Even if the prohibition is mid’Rabbanan, and even if only out of doubt, or on account of an accepted chumrah – stringency – of early sources – it is considered mekach ta’us” (C.M. 232:11-12; Sma 232:28; Pischei Choshen, Geneivah 12:19).
“However, if the accepted ruling is that the food is permissible, but some authorities prohibit it, the buyer cannot claim mekach taus because he wants to be stringent. He must pay, since the accepted halacha is that the food is permissible” (Eishel Avraham, O.C. 467:25).
“Nonetheless, if the halachic recommendation is to follow the stringent opinions l’chatchila, such as couch pillows that contain shaatnez material inside them, some poskim write that since people avoid such items, it is considered defective merchandise. Others disagree, unless the buyer is known to be stringent” (Mishmeres Shalom 232:11-12, citing Chayim Sha’al 1:74:35; Beis Shlomo, Y.D. 1:14).
“The practice to be stringent about pas Yisrael during Aseres Yemei Teshuva is codified in the Shulchan Aruch (O.C. 603:1). He even uses the language that one needs to be careful – tzarich l’hizaher. It seemingly falls into the category of a formally accepted chumrah, especially if Mr. Feldman is known to be careful about it, which would render the bagels a mekach taus.
“Furthermore, the rules of agency – shelichus – are more demanding than the rules of mekach taus. The sender can claim that he appointed the agent for his benefit, not his detriment. For example, if the agent was overcharged, even less than a sixth, which would normally not invoke a claim of onaah, the transaction of the agent can be voided” (Kesubos 99b; C.M. 227:29-30).
“Thus, even if we were to rule that such bagels would not be considered a mekach taus, the agency would be void, and Mr. Feldman would not have to pay, since you bought something that he does not want.
“Therefore,” concluded Rabbi Dayan, “Mr. Feldman does not have to pay for the bagels.”
Verdict: Food, which according to the accepted ruling should not be eaten, even if because of a dispute or widely accepted stringency, is considered a mekach taus, and agency for such a transaction is void.
