Elementary Publishers prints schoolbooks, mostly for use in elementary schools. One of their books was a widely-used English reader. Since some of the passages were about holidays, they also printed a “Jewish” edition, which reflected Jewish holidays in these passages.
Yesod Yeshiva ordered a box of these readers through a Jewish distributor. The order form clearly stated on it: “Jewish edition.”
When the readers arrived, the box was brought to the classroom. The teacher, Mr. Sofer, distributed a reader to each student, affixing a sticker on it to write the name.
Mr. Sofer then opened the reader and thumbed through it. He noticed that the holiday passages were not reflective of Jewish holidays and were inappropriate for the yeshiva!
“There’s a mistake with the books,” Mr. Sofer said to his class. “Please return them; we’ll have to order new ones.” He put the readers back in the box.
After class, Mr. Sofer contacted the distributor about the error and asked to send the edition they had ordered. “I’ll bring you the Jewish edition immediately,” he said. “Please have the other readers ready for pickup when I bring the new ones.”
When the distributor arrived, he saw the stickers. “I’m going to have trouble selling these books to other schools as brand new,” he said. “I may have to sell them as ‘used in new condition.’ I’ll accept the books back, but expect you to cover the depreciation due to the stickers.”
“It was your mistake in sending the wrong edition,” argued Mr. Sofer. “I naturally assumed we received the edition we ordered. It’s expected that students write their names or put name stickers on when distributing new books.”
“I would like to consult Rabbi Dayan on this issue,” said the distributor. He called and asked:
“Is Mr. Sofer responsible for the depreciation of the books?”
“The Gemara (Hullin 50b-51a) teaches that if a customer slaughtered an animal that turned out to be tereifah in a manner that clearly occurred before the sale, it is considered a mekach taus – erroneous purchase, due to the defect. The customer is entitled to a full refund, even though the animal is now worth significantly less. This is because it was expected that the customer would slaughter the animal” (C.M. 232:11; Sma 232:29; see, however, Pischei Teshuvah 232:6 regarding a tereifah).
“Rambam (Hil. Mechirah 16:6) derives a principle from this: If the customer damaged the merchandise further through normal use, before realizing that it was defective – he is exempt from that additional damage” (C.M. 232:13; Sma 232:29).
“This halacha is stated in the context of defective merchandise, but the same seems true regarding an erroneous sale of the wrong product, when the error is due to the seller and not immediately noticeable. Even a variation in the item, which makes it a different type, is considered an erroneous sale, such as white wheat instead of brown wheat. Similarly with different editions” (C.M. 231:1).
“However, if the difference between the editions is easily noticeable, e.g., if they have different covers, or if the shipping invoice stipulates that the books be inspected before using, Mr. Sofer could no longer claim that he was not at fault. Furthermore, some write that if the customer could easily check, but neglected to do so, he forfeits a claim of defective merchandise. This might not apply, though, to different merchandise, which is clearly a void sale” (see Pischei Teshuvah 232:1; Pischei Choshen, Geneivah 13:[29]).
“It is typical to place a sticker, or write a name, when distributing books to students,” concluded Rabbi Dayan. “Thus, if Mr. Sofer did not discover the error until afterward, he is not liable for the damage, and the distributor cannot charge him for the depreciation” (Pischei Choshen, Geneivah 13:[28]).
Verdict: In cases of defective merchandise or an erroneous sale due to the seller’s error, the customer is not liable for further damage that he inflicted through normal use before noticing the defect or error.
