Continuing the topic of defects in the item purchased, can there be a disclaimer by the seller of any defects? If the seller has a general disclaimer of liability of defects, the disclaimer will not be binding on the buyer unless it specifies the type of defects for which he is not responsible; such stipulation is not binding upon the buyer since he did not know what the defects were and thus lacked the requisite intent to effect a waiver of his rights to rescind because of defects. The seller's statement is also not binding on the buyer unless it is clear that the buyer intended to accept any and all defects.

However, if the seller enumerates the defects and the buyer agrees to purchase with these defects and also that he will not seek rescission of the sale on account of such defects, such agreement is binding on the buyer.
The seller enumerates some defects that are obvious and some that are not so obvious and demands that the buyer agree to purchase with all such defects, and the buyer agrees. The waiver is binding on the buyer if the defects as enumerated by the seller did not lull the buyer into a false sense of complacency. Beth Din will examine the enumeration and decide if the list was so worded that the buyer would think that since some of the defects stated by the seller do not exist, the others also do not exist.

The community standards are binding on the parties unless they stipulate otherwise.

The buyer may agree to waive certain defects in the item and agree that he will not thereafter demand rescission based on these certain defects, or he may waive his right to rescission based on any and all defects that the item may have. These agreements may be in response to a request by the seller, or they may be independently made. The buyer may agree to accept the item with defects up to a certain monetary value.

The buyer's agreement must be clear and unequivocal that he will accept certain defects, or he may agree to accept any and all defects in the item he is purchasing, but such stipulation must be clear and understood by him when he enters into the agreement. The failure of the buyer to fully comprehend that which he is waiving voids his waiver, and in such a case he may maintain his rights against the seller even after having agreed to waive his rights.

As stated above, if the seller has a general disclaimer of liability for defects, it will not be binding on the buyer unless the disclaimer specifies the type of defects for which he is not responsible.

Any defect in the sale, no matter how small or how large, gives only the buyer the right to rescind the sale upon his discovering the defect; the buyer returns the item to the seller and gets his money back. The seller does not have a reciprocal right to rescind the sale due to a defect in the item he sold to the buyer. For example, suppose the price of the item rose greatly and the buyer does not want to rescind the sale even though the item has a defect. The seller cannot demand that the sale be rescinded. The right to rescind in the case of a defect is for the benefit of the buyer, and the seller cannot benefit thereby. The good faith of the seller is not material, that is, whether he was aware or not of the defect is not material. The sale may be rescinded since the defect results in an erroneous assumption that the subject matter of the sale is other than it turned out to be. But the buyer may not request that beth din both sustain the sale and grant him an adjustment in the price. Neither may the seller demand that the sale remain in effect and that he will reimburse the buyer for the difference in price between an item without the defect and the item with the defect. The buyer does not have to return the item to the seller in a case where the item was destroyed as a result of the defect with no negligence on the part of the buyer contributing to the destruction of the item. The example given in the codes is that the buyer purchased a cow that he placed in the field with his other cows. He provided food for the cows, but this cow did not eat because it had no teeth; thus, it died. After the cow died, the buyer saw that it had died from starvation, because it had no teeth to eat with. If the buyer did not have other cows, however, then he would be negligent in not seeing that this one cow was not eating.

Whenever the buyer may rescind the sale and does so, the seller must refund the price to the buyer in the same mode that he was paid; if in cash, then in cash. If the seller does not have cash, he may pay by giving the buyer personal property valued by beth din to be equal to the purchase price, and if he has neither cash nor personal property; the seller may pay by giving to the buyer the equivalent in real estate. If the seller pays in personal property or in real estate and pleads that he has no cash, Beth Din will pronounce a ban, as it does on all those who falsely claim that they do not possess cash to pay their creditors.

Until the seller pays the buyer, the buyer may hold on to the item as collateral security, and he remains a creditor of the seller until he is paid.
There is no time limit to the right of the buyer to rescind the sale. This is true only if the buyer did not use the item after discovering the defect. However, if the buyer used the item after he became aware of the defect, he cannot bring a lawsuit to obtain rescission of the sale, since it is deemed that he waived the right to protest the defect. An exception is made in the case of a purchase of an animal for a specific purpose such as to pull a plow. The deprivation of the animal until the sale is undone may deprive the buyer of the entire crop for the year.

There are also situations where the buyer does not know that using the item after discovering the defect acts as a waiver. This, too, should be examined to see if there was a waiver of the buyer's right of rescission.

The buyer does not have the right to rescind the sale if: (1) he was aware of the defect when he purchased the item, or the defect was so obvious that he should have been aware of it; (2) the presence of defects was explained to him and he specifically agreed to accept the item with such defects; (3) he waived his right to demand rescission for defects; or (4) he used the item after he discovered the defect.

In this day of interchangeable goods, the buyer should have the option to exchange the defective item with another similar, but non defective, item in the seller's inventory. Similarly; the seller should have the option to replace the item with another similar, standardized item. The buyer should have this option to exchange the item even if the price of the item has gone up; it has been suggested that the seller's right to exchange the item is not present if the price went down. I do not agree with this latter view.

Special note of thanks to Raymond Jason for pointing out that recent changes in British law has come very much in line with the guidelines set forth in lesson 192.

The subject matter of this lesson is more fully presented in Volume VII Chapters 232 of"A Restatement of Rabbinic Civil Law" byE. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores.
Questions to quint@inter.net.il

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