The seller of any item, real estate or personal property, has a two-edged sword hanging over his head. He has the negative obligation as it were, of not being deceitful, and he has the positive obligation to disclose any defects in the item sold.

A buyer is entitled to purchase an item with the assumption that the seller's representations regarding the item are true and it is free of defects. The seller, whether a merchant or a non-merchant, is prohibited from deceiving the buyer or misleading him by failing to disclose the true nature of the thing sold or defects, whether the buyer is a Jew or a Gentile. For example, the seller may not sell meat or hides of an animal that died of natural causes as meat or hides of an animal that has been properly slaughtered.

A seller may not change the appearance of the item he is selling to make it look better than it is. He is not to soak meat in blood to make it look fresher than it is. He may not feed his animal with bran water to make it swell up and appear healthier than it is. He may not paint old things to make them appear new. He may not mislabel an imported product to make it appear domestic or vice versa.

The seller cannot make any statement or act that will mislead the buyer into thinking he is buying something better than the thing actually being sold.
Not only is the seller prohibited from deceiving the buyer, as stated in the previous paragraph, but if the seller is aware of a defect in the item being sold that is not evident to the buyer, he has the positive duty to inform the latter. The obligation to disclose is required in all cases where the seller is aware of a defect in the thing sold. The fact that the defect does not affect the value of the product is not important. The defect must nonetheless be disclosed to the buyer.

The use to which the buyer will put the thing bought may determine if the seller is remiss in not disclosing the defect. For example, if the buyer buys old cars just for their parts and not to be driven, then the fact that the car gets poor gas mileage is of no consequence.

The seller also has the obligation to test products before he places them on the market.

The defects must be correctly stated. The statements should not be misleading or ambiguous. Sometimes enumerating too many defects lulls the buyer into a false sense of security if he sees that the product obviously does not have some of the defects mentioned; the buyer then assumes that the product also does not have the other defects mentioned, when in realty it has. Beth Din will examine the statements to see if the buyer is being misled.

When advertising a product, the seller must state the facts in such manner as can be understood by a reader of average intelligence and prevent him from being misled. If the product should not be used under certain conditions, this must be stated.

The community standards as to what is understood are binding on the seller and the buyer. Instructions regarding the operation of the item must be clear and understandable.

However, if the defect was obviously visible to any person who looked at the item, it is not incumbent upon the seller to make such disclosure since he can assume that the buyer has noticed the defect. It is the buyer's responsibility to notice such defects. Beth Din has to determine if the defect is visible to the ordinary eye; if so, the failure of the buyer to notice it will deny him the right to cancel the purchase.

If anything that the people of a community consider a defect is present in the item but is neither obvious nor disclosed to the buyer, this gives him the right to void the sale. However, the community standards may be such that certain flaws are considered to be part of every sale and not considered a defect. If the residents of the community do not consider a certain flaw to be a defect in the item, then purchasing an item with such a flaw will not give any rights to the buyer.

If the item that the seller sells does not belong to the seller and he lacks the right to sell it, this is a defect in title, and there is no defect greater than this.
The codes give the following actual case as an example of a sale not involving a defect. Reuven and Shimon entered into negotiations for Shimon to purchase a house that Reuven owned in another city. Before Shimon performed an act of acquisition to acquire the house, and unknown to either Reuven or Shimon, non-Jews vandalized it, breaking doors and windows and causing smoke damage to the house. When Shimon performed an act of acquisition to acquire the house, he and Reuven were unaware of the vandalism. Shimon pleads that the house had a defect when he purchased it and he now wants to rescind the purchase. Reuven pleads that since the house can be restored to its prior state by the expenditure of money, he will give Shimon a reduction of the purchase price as necessary to make the repairs needed to restore the house to its original state. The rabbi decided the case in favor of Reuven. If a defect can be cured by a money expenditure and the item can be restored to its original state, the seller has the option to give the buyer such an allowance. Had there been a structural defect such as a broken wall as a result of the vandalism, then Reuven would not have had the option to give Shimon an allowance. Then Shimon would be given the choice of either purchasing the house with the defective wall or rescinding the sale.

Here are a few more examples given in the codes: Reuven shows Shimon an item made of wood and tells him that it is made of gold. Reuven can later plead that he meant that the item was as good as gold, and Shimon cannot rescind the sale as being a misrepresentation if the price was that for a similar item of wood.

Reuven sells Shimon a cow for the purpose of slaughtering it for food. The buyer slaughters it according to Jewish ritual law, but when the cow is cut open, the buyer discovers a defect in the cow that makes it prohibited to eat as kosher meat. If it can be ascertained from an examination of the animal that it possessed the defect prior to the sale, then the buyer may rescind the sale; if it is not discernible that the defect existed prior to the sale, then the buyer has the burden of proof and, failing to bring such proof, cannot rescind the sale. There is authority that if the defect that rendered the animal unfit for food consumption is the type of thing that occurs with some frequency, then the buyer should have anticipated that this might be present and should have stipulated with the seller his refusal of such defect; absent such stipulation, the buyer may not rescind the sale.

As a result of a question raised by Ms. Yocheved Miriam Russo of Be'er Sheva, I include this paragraph that should have been in the prior lesson. If the buyer makes known the reason that he is ordering a certain quantity and the resulting shortage delivered by the seller makes it impossible for the buyer to achieve his end result, then the buyer may rescind the sale.
The subject matter of this lesson is more fully presented in Volume VII Chapters 232 of "A Restatement of Rabbinic Civil Law" by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores.
Questions to quint@inter.net.il

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