Chanukah was in the air. “Can we buy jelly doughnuts for tonight?” Chaim asked his mother.
“Yes,” said his mother. “The bakery is having a special on their doughnuts for Chanukah.”
“How many should I get?” asked Chaim.
“Get twelve,” said his mother. “Here’s money. If you want, you can bike over and buy them.”
Chaim put on his helmet and got ready to go. “One more thing,” said his mother. “There are also some milchig doughnuts in the bakery. Make sure to get pareve ones.”
Chaim went to the bakery. Piles of doughnuts of all flavors were spread out on tables. He saw the doughnuts labeled milchig on the side.
Chaim chose twelve doughnuts of various flavors and put them in boxes sitting there. He paid and took them home.
After a delicious chicken supper, Chaim’s mother brought out the doughnuts. “Thanks to Chaim for getting the doughnuts,” she said to the family.
Chaim and his mother chose the same kind of doughnut. Chaim managed to finish his before his mother had a chance to sit down and eat. Finally, she took a bite. “Delicious,” she said to Chaim.
She took one more bite and frowned. “Are you sure that all the doughnuts you got were pareve?” she asked Chaim. “This tastes milchig.”
“I’m sure,” replied Chaim. “The milchig ones were labeled on the side table.”
“This doesn’t seem right,” Chaim’s mother said. “I’m going to have to check with the bakery.” She put that doughnut aside and took a different flavor.
What happens if it turns out to be a mistake and it’s milchig?” Chaim’s mother asked her husband. “Are we entitled to a refund from the bakery?”
“I’ll ask Rabbi Dayan at Maariv,” said her husband.
“You are not entitled to a refund for the doughnuts that were already eaten,” said Rabbi Dayan. “Regarding those that are not yet eaten, whether you can demand to return them for a refund or exchange depends on the circumstances
“Can you please explain?” asked Chaim’s father.
“Non-kosher food sold as kosher can be returned for a full refund,” explained Rabbi Dayan. “However, the milchig doughnuts are also kosher. Many doughnuts are eaten with pareve or milchig. The average customer who buys doughnuts from the pareve section might not care that they be pareve, so that they cannot be considered automatically mekach taus, a mistaken purchase.” (See C.M. 232:11-12,23.)
“Moreover, the Rama cites the Terumat Hadeshen that if one sold regular meat with the claim it was special meat the sale is not completely invalidated and the customer is only entitled to a reimbursement of the differential, unless it was known that the customer needed the special meat,” added Rabbi Dayan. “Thus, only if it was clear that the customer needed them for a fleishig meal, such as for Shabbos, would it be considered mekach taus and he can demand a refund. Many acharonim disagree with this, however, and rule that if the customer specifically asked for pareve it would always be a mekach taus.” (C.M. 233:3; Aruch Hashulchan 233:4; Pischei Choshen, Ona’ah 12:74)
“What about the doughnuts that were already eaten?” asked Chaim.
“You cannot demand reimbursement for the doughnuts that were already eaten,” answered Rabbi Dayan. “Regarding non-kosher food that was sold as kosher and already eaten, halacha distinguishes between a Torah prohibition and a rabbinic one. If the prohibition is rabbinic the customer cannot demand a refund, since he already benefited from the food. Even more so in our case, where the doughnuts were kosher but the person didn’t wait the requisite time after meat. Kosher fraud laws might allow penalties, though, for such kashrus mislabeling.” (C.M. 234:3-4)