Translation:Shulchan Aruch/Choshen Mishpat/232

Paragraph 1- If one sells to another via measurement, weight or amount and he erred by any amount, the party may always retract because the rules of overcharge only apply to money, but for a mistake in a calculation one can always retract. How so? If one sold 100 nuts for a dinar and it turned out there were 101 or 99, the item would be acquired and the error would be returned, even after many years. Similarly, if it was discovered that there was missing or extra money from the amount they agreed upon, one can retract even after the kinyan was made and nothing of his was left in the other party’s possession, because it was a kinyan in error.

Paragraph 2- If one accepts money from another, regardless of whether it was via sale or a repayment, and discovers extra money, he is required to return the money, even if the other party did not make a claim on it, so long as the money is within the margin of error. This means, if one can divide the extra money into 10s or 5s, and not have 1 or 2 extra that would not be divisible by 5, you can assume the party erred in calculation. If the extra was in 10s, he erred between 50 and 40 or 40 and 30. If the extra was 5s, there are those who typically count by 5. If the amount was 55, he erred in 10s as was explained and for the 5 extra he erred between three 5s and four 5s. If the extra was 15 or 25 he erred three times or he erred with five 5s. If the extra on the amount divisible by 5 is 1, 2, 3 or 4, which is not divisible by 5, the entire amount is a gift so long as the extra money does not add up to a number divisible by 5 or 10. If they did add up to such a number, he would be required to return them because perhaps the other money that he counted 5s or 10s was mixed up with them. In a place where the practice is to count by 1s or 2s or something similar, that would be considered within the margin of error based on the typical practice of counting.

Paragraph 3- If one sells real property, a slave, an animal or other movable items to another, and a defect the buyer did not know about was discovered on the item, he may return it even after many years because this was a sale under false pretenses. This assumes the buyer did not use the item once he discovered the defect. If he used the item after discovering the defect, however, the buyer has waived his rights and cannot return.

Paragraph 4- We do not calculate the decrease in value from a defect. Even if one sold a vessel worth 10 dinar and a defect was discovered that lowers its value by an issar, he may return the vessel and the seller cannot say here is the issar of value that decreased from the defect because the buyer can say he wants a complete item. Similarly, if the buyer wants to accept the decrease from the defect, the seller can say either accept the item as is or take your money and return my item.

Paragraph 5- If Reuven sold houses to Shimon that he had in another city, and before the sale was consummated, gentiles enter the houses and ruined some the areas, blackened the wall and uprooted the doors and windows of the houses, and Shimon wants to retract and Reuven says that since this is just a temporary defect he will just deduct from the cost so that Shimon can restore the houses to their original state and the sale should still be valid, Reuven is in the right because Reuven sold a house and it is still considered a house. The same would apply to a defect that is not on the actual house, such as where there is a path to the house or a water channel passing through. He can remove the defect and the sale would be valid. If there is a defect on the actual house, however, such as where he says he is selling a full wall and the wall is discovered to be shaky, the seller may not save the sale by building a full wall. The same applies to anything similar.

Paragraph 6- On any defect that the residents of the jurisdiction agree is a defect, such an item would be returned. Any matter they agree is not a defect, would not be returned, unless the seller specified otherwise at the time of the sale, because anyone who transacts by default relies on the local custom.

Paragraph 7- When one purchases without specifying, he is purchasing a complete item without a defect. If the seller specified and said he is selling on the condition that the buyer cannot make a claim against him on a defect, the buyer may still retract until the seller specifies the actual defect in the item and the buyer waives or he says that any defect that is found in this item that causes a decrease in value up until such amount I hereby waive because a party waiving must know the rights he is waiving and he must specify it just like one who specifies overcharge. If the seller sold him a wooden vessel and said it is gold, because the buyer saw it the seller can say he was saying it is as good as gold.

Paragraph 8- If one sells a cow to another and says it has such and such defects that would be visible and he included a defect that would not be visible and it turned out that it had the defect that would not be visible but not the others, the sale was under false pretenses. For example, if the seller said this cow is lame, blind, bites others and lies down, and it turned out to only bite others, it is a sale under false pretenses because the buyer can say when he saw the cow was not lame or blind I figured that just as it did not have these defects it did not have the others and he only said this to put my mind at ease. If it does have the visible defects, regardless of whether it had all of them or some them, and it also had the non-visible defect, however, such as were the animal was lame and also bites others or it was blind and also bites others, it would not be a sale under false pretenses, because just as the buyer waived the visible defects, so too he waives the non-visible defects.

Paragraph 9- If the item had one visible defect and the seller showed it to the buyer and says it also has such and such defects that are not visible, and it turned out that it had those non-visible defects he mentioned, it would not be sale under false pretenses, even if it had all the defects he mentioned because he did not mislead the buyer given that he described all of its defects.

Paragraph 10- If one sells a slave or maidservant, the buyer may not retract because of defects that do not interfere with his or her work. These defects are referred to as “simphon.” The rationale is that if this simphon was visible the buyer already saw it. If it was not visible, such as a mole on the flesh, a dog-bite, bad breath or a bad smell from the nose or something similar, because it does not interfere with his work the buyer cannot retract given that slaves are not meant for sexual relations, but for work. If he was discovered with bad boils, a sickness that weakens his strength or he would faint or go out of his mind, that would be a defect because it interferes with his work. Similarly, if he was found with leprosy or something similar that would be visible, that would be a defect because people are turned off by that and will not participate with him in work that involves eating or drinking. Similarly, if the slave was discovered to be an armed bandit, that would be a defect that destroys his entire value because the king can seize him and kill him. Similarly, if it was discovered that the slave was written to be given to the government, that would be a defect and he can be returned because the king can seize him for his work whenever he wants. If the slave was discovered to be a thief, a robber, a kidnapper, one who constantly flees or a glutton or something similar, however, the buyer would not be able to retract because all slaves have the presumption that they have all these negative traits unless otherwise specified. There are those who say that a kidnapper is like someone who was written to be given to the government. Dice-playing, however is not a defect.

Paragraph 11- If one sells an animal to another for slaughter and the buyer slaughters and the animal turns out to be a treifah and it was known with certainty that it was a treifah when the buyer purchased it, such as where there was a hole in the reticulum and a scab had covered the wound, in which case we know there were at least three days from the time the hole was created, and the animal was purchased within the last three days, the sale was under false pretenses and the seller must return the money. If he did not purchase within three days or he purchased within three days but a scab did not cover the wound, in which case it is unclear whether the hole was within three days or not, the buyer has the burden of proof. If he does not bring proof, he will lose out and must pay the money if he still has it.

Paragraph 12- An adhesion trefiah would also be a sale under false pretenses. There are those who disagree because it is a common occurrence so he should have made a condition. Even a treifah that we prohibit out of doubt would void a sale and the seller cannot say prove it was a treifah.

Paragraph 13- If one sells an item that had a defect at the time of the sale and the buyer created another defect before he was aware of the first one and he did something with the item that is typically done, he would be exempt. If he deviated and created another defect before he knew of the defect, he may return the item to the owner and would pay for the loss of value from the defect he created.

Paragraph 14- If one purchased a sheet and tore it to create a shirt, and a defect was subsequently discovered because of the tear, he would return the torn parts. If he sewed it and then the defect was discovered, and the item had gone up in value, the buyer would take the increase in value due to the sewing from the seller. The same applies to anything similar.

Paragraph 15- If one sells real property to another and the buyer consumed its fruits and later discovered a defect and he wants to return the property to the owner, he must return all the fruits he consumed. If the property was a courtyard and he lived there, he must pay him for the rental.

Paragraph 16- If Reuven sold Shimon three cheeses and after three days Shimon opened them and found they were rotting greatly, they would ask the cheesemaker how much time it would take for such rotting and mold to take hold. If they say that the rotting took place in the seller’s possession, the sale was under false pretenses. If the matter is unclear, the party trying to remove money would have the burden of proof.

Paragraph 17- If Reuven sold Shimon a skin of oil and Shimon did not open it but relied on the seller who told him it was good, and when he opened it it was muddy, the seller would swear he gave him good oil as he conditioned. If he does not want to swear, the buyer would swear that they made a condition that the seller would give him good, clear oil and that this is the oil he gave him, and he would return the oil. Alternatively, they would appraise how much less this oil is worth than good oil and if the buyer prefers to take the oil, the seller would return the value of the decrease.

Paragraph 18- If someone sells an item that has a defect that is not visible and the item was misplaced because of that defect, the seller must return the money. How so? If one sold an ox without teeth to another and the buyer left the ox with his cattle and placed food in front of all of them and they were eating and the buyer was unaware that this animal wasn’t eating until the animal died from hunger, the buyer would return the carcass and the seller would return the money. The same applies to anything similar. If the seller was a middleman who buys from one party and sells to a third party and he did not keep the item with him and was unaware of the defect, the middleman would swear a heses oath that he was not aware of this defect and he would be exempt because it is the buyer’s responsibility to check the ox individually and return it before he dies and the middleman would return it, and because the buyer did not do this he caused himself the loss. There are those who disagree and hold that even the middleman would need to pay because although he was overcharged that does not give him the right to overcharge others. The same applies to anything similar. This seems to me to be the primary ruling. All the more so would this be true in a case where the buyer was not negligent at all, such as where he sold a ring with the understanding that it was gold and the buyer later broke it and it turned out to be tin, and the middleman would be required to return his money, even though he was also overcharged on it. If the middleman does not believe him that it was tin, the middleman would swear that he does not know anything about it and he would be exempt. If the middleman purchased something with the understanding that it was tin and he sold it, and it was later discovered that it was silver or gold, the buyer would have the rights to it because the middleman never had right to it since he was unaware of it. See later Siman 268.

Paragraph 19- If one sells eggs to another and it was discovered that a chick was beginning to form and was thus inedible, it would be a sale under false pretenses and the buyer would return the money. Nowadays the custom is not this way and custom has the power to void strict law.

Paragraph 20- If one sold garden-seeds that themselves are not edible to another, and the buyer planted them but they did not sprout, the seller bears responsibility and he must return the money because the buyer purchased them with the presumption that it would be planted. This is true where they did not sprout because of their own defect. If the ground was struck by hail or something similar, however, the seller would not be responsible because they may not have sprout due to the hail. The same applies to anything similar.

Paragraph 21- If one sold edible seeds, such as wheat or barley, and the buyer planted them but they did not sprout, the seller is not responsible. Even if they were flax seeds, where most people purchase them to plant, because people eat it the seller is not responsible for what happens when they are planted. If the buyer did not yet give the money, however, there are those who say the buyer has the right to say he purchased it for planting. See below in seif 23. If the buyer informed the seller he was purchasing to plant, the seller bears responsibility. The same applies to items that are sold for medicine or for dying or for anything similar. If one purchases an item from another and informs the seller that he is bringing to such and such jurisdiction to sell it there, and after he brought it a defect was discovered, the seller cannot say bring my item back here. Rather, the seller must return the money and the seller would be responsible to bring his item back to him or to sell it in its current location. Even if the item was misplaced or stolen after he was informed of the defect, it would be in the seller’s possession. If the seller was aware of the defects when he sold it, he would be liable for the expenses the buyer incurred to bring it to such and such place. If he was unaware of the defect, he would be exempt from paying for the expenses of bringing it there and would only be liable for the expenses of bringing it back. If the buyer did not tell the seller he was bringing it to another jurisdiction and he brought it there and discovered a defect, it would be in the buyer’s possession until he returns the item with its defect to the seller.

Paragraph 22- If one purchases an item and discovers a defect, and then the item was misplaced or stolen, the item is in the buyer’s possession until he returns it to the seller. If the item became wormy or was diminishing because of the defect, it would be in the seller’s possession. If the buyer should have told the seller but did not do so, the item is in the buyer’s possession.

Paragraph 23- If one was selling an ox to another and it was discovered that the ox was a goring-ox, and there is no way to prove whether he purchased it to plow or to slaughter, such as where the buyer is someone who purchases for either purpose, and the money paid is not evidence either way, such as where the value of meat went up to the value of an ox used for plowing, the sale was not made under false pretenses, because the seller can say he sold it for slaughter, even if most people purchase to plow. We do not follow the majority to take money away from the seller. If the money was still in the buyer’s possession, however, not only in a case where most people purchase for plowing, but even where it’s exactly equal, the party taking away the money has the burden of proof. If the buyer does not usually purchase other than to plow and the seller is familiar with him, the sale was under false pretenses. If the buyer generally purchases only to slaughter, the presumption is he purchased to slaughter. If he usually purchases for both slaughtering and plowing and the money paid is evidence and he gave the value of an ox for plowing, we say he purchased it for plowing and the sale was under false pretenses. If he gave the value of an ox for slaughtering, we say he purchased it for slaughtering. In any situation where the sale was under false pretenses and the seller has money, he must give money because the buyer is like a creditor. This is not like those who say that he may give him real property.