Continuing on the topic of defects in the item purchased, who bears the risk of loss until the purchase is rescinded?

If the seller knows of the defect, the risk of loss from theft, fire, or any other casualty is on the seller, whether or not the buyer has notified him of having discovered the defect. (this assumes that neither party had insurance regarding the loss of he item purchased.

If the seller is not aware of the defect, once the buyer notifies the seller, the risk of loss is on the latter from the time that he could reasonably get to the buyer to retrieve the item; prior to such time interval, the risk of loss is on the buyer. If the buyer does not notify the seller of the defect and the seller is not aware of such defect, the risk of loss is on the buyer. Even if the buyer does not notify the seller, if the loss of the item is due to the defect, the risk of loss is on the seller unless the buyer could have done something to prevent the loss.

Reuven sells an item to Shimon and Shimon advises Reuven that he will transport the item to a second place for resale. He then transports it to the other place to resell it there, and there finds it to be defective. Shimon may rescind the sale, and it is Reuven's obligation to go to the second place to get the item to bring it back or to sell it there. After Shimon so advises Reuven, if the item is lost or destroyed without any negligence on the part of Shimon, the risk of loss is on Reuven, commencing at the time that he could reasonably have gotten to the second place to retrieve the item. If the buyer can prove that the seller knew of the defect when he sold the item to the buyer, the seller must also reimburse Shimon for the cost of transporting the item to the second place. If the buyer does not inform the seller that he was going to transport the item to a second place, then the seller is not responsible for the return transportation unless it is generally known in the community that all such purchases are for resale in another place.

Suppose the buyer, prior to discovering the defect in the item, damages the item. When he discovers the defect, he may rescind the sale, give the damaged item back to the seller, and pay for the damage, and the seller must return the purchase money to the buyer. The buyer can pay the money for the damage by asking the seller to deduct it from the purchase money that the seller must return to the buyer. However, if the damage is caused by ordinary wear and tear of the item, the buyer may rescind the sale and need not pay for the damage to the item.

For example, if the buyer bought cloth to make a garment and, after he cut the cloth, discovered a defect, he may rescind the sale, return the cut pieces to the seller, and get his money back. If the defect was discovered by the buyer after he sewed the garment, he may rescind the sale, give the garment to the seller, and get back the purchase money; and in addition, the seller must pay the buyer for the improvement of the cloth into a garment. If the item contained a hidden defect and perished because of the defect, the buyer may rescind the sale and get his money back, and he will owe nothing to the seller.

Suppose the buyer uses the produce produced by the land he bought and then discovered a defect in the land. He may rescind the sale, pay to the seller the value of all of the produce that the land produced, and get his money back. If the buyer used the land to dwell thereon, he must pay the seller a reasonable rental for the land before he can rescind the sale.

If it is not known whether the defect occurred when the item was in the owner- ship of the buyer or still owned by the seller, proof is on the party who claims that the defect occurred in the other party's ownership. If the buyer has already paid for the item, he must prove to beth din that it was defective while the seller owned it. An example given in the codes is one in which a buyer bought some cheeses. He opened them three days after he bought them and found them to be moldy. He showed them to the cheesemakers, who stated that such mold could not have formed in three days and that therefore, they were moldy when purchased by the buyer. If there is a doubt when the defect occurred, the burden of proof is on the buyer if he has already paid for the item.

If the buyer has not yet paid for the item, the seller has the burden of proof to show Beth Din that it became defective in the ownership of the buyer. Beth Din can rely on expert testimony to base its decision as to when the defect occurred; or it may take judicial notice that certain defects take a certain amount of time to occur.

The codes cite the following case: Reuven sold jugs of oil to Shimon, and Shimon paid for the oil. Shimon opened the jugs of oil sometime after he purchased it and found the oil to be murky. The oil was not in Shimon's ownership long enough for it to have become murky if it was not already murky when sold to him. Shimon then sued for rescission of the sale. It was held that Shimon would have to prove two things:

(1) that Reuven represented that the oil he sold was clear and not murky;
(2) that the jugs of oil that Shimon produced in Beth Din contained the oil that Reuven sold to him.

Absent proof by Shimon as to these two allegations, it would be held that Reuven could take an oath that he delivered clear oil and that Shimon changed the oil or else swear that he had never agreed to sell clear oil to Shimon. Reuven's allegation that he sold the oil to Shimon without any definite representations will be construed to mean that he sold the oil in its present condition, and therefore he will win the case. If Shimon had not yet paid for the oil, Reuven would be the plaintiff trying to recover the price of the oil, and the burden of proof will be upon him. In such instance, if he cannot prove that he did not represent the oil to be clear and that the oil Shimon produced was not the oil that he sold, Shimon could take an oath that Reuven had represented the oil to be clear and that this was indeed the oil that he had purchased.

In all of these cases the Beth Din should use experts if it cannot decide for itself in whose possession the item was spoiled.

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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