Rav Dovid Eisen, dayan

Q: I ordered a case of frozen chicken from a wholesale supplier and specifically chose a company under the hechsher that I am comfortable with. When the order arrived, I realized they had sent chicken from a different company, bearing a hechsher beneath my personal standards. Upon contact, the supplier responded that chicken is chicken, and as far as he’s concerned, both hechsherim are widely recognized as acceptable, so no refund will be forthcoming. Is he in the right? Do I have recourse via beis din?

A: It’s certainly disappointing to receive a product that differs in any way from what was ordered. Under secular law and practice, the buyer almost always has the upper hand in the area of mekach ta’us. But the halachah in this regard is far more nuanced, as, per Choshen Mishpat, the seller has rights as well, and entitlement to a refund depends greatly on the specifics of the defect in question as will be explored below.

Two broad areas of defects exist: A: The item was completely different than that which was ordered. B: The item was inferior than the accepted standard. Our scenario falls under the latter category. As explained in Shulchan Aruch, the halachah is that if most people don’t consider the difference in quality to be consequential[1] then one can only force a refund if they can prove that it’s significant to them personally; we don’t just take their word for it.[2]

As such, if the other hechsher is indeed considered inferior (regardless if it actually is) by the public, or if you can prove that that you belong to a community that requires a different standard (e.g., beis Yosef or a heimishe hechsher), or you can prove that you only purchase food that bears the desired hechsher, you can force a return. (In a situation where you can force a return, the seller can’t make you pay for his damages even if he’s unable to resell the chickens after they left the store.[3])

In the absence of the above conditions, you have no leverage halachically to force a return despite the issues you have with the item with which the order was fulfilled.

An important caveat: This discussion begins only after you made a proper kinyan. If, however, you had not yet lifted the box or it wasn’t placed in a properly enclosed area, a proper acquisition was never made and you’re not required to buy it. Regarding placing an order on the phone or online and paying with a check or credit card, there’s a considerable discussion among contemporary poskim when the kinyan occurs. Rav Elyashiv[4] among others, consider the kinyan to be effective at the time that deal is finalized based on the concept of situmta, or accepted practice; this may also depend on the terms and conditions of the sale.

It must be stressed that this entire discussion reflects only the strict halachah as enforceable in beis din. There are other areas to be considered as well, such as customer service, store policy (when halachically applicable[5]), and the rights to contest a credit card transaction. These issues are beyond the scope of this article.

In conclusion: If a proper kinyan was already done you can only return the chicken if the other hechsher is indeed considered inferior by the public, or you can prove that that you belong to a community that requires a different standard, or you can prove that you only purchase food that bears the desired hechsher.

In layman’s terms

Mekach ta’us: mistakes and discrepancies in a sale

Situmta: a handshake, which the accepted practice was to consider it a kinyan

Telling tale

Rav Meir Stern was inspecting matzos for his matzah chaburah. A talmid saw him place a matzah that was slightly below his high and rigorous standards in the “accepted” bin. When asked why this matzah was deemed acceptable, Rav Stern explained that the matzah was technically kosher per the letter of the law even according to his own standards, and as such, in accordance with the bakery policy, he was responsible to pay for it. When this talmid had the temerity to ask if the Rav would actually eat the matzah in question on Pesach, he responded, “Perhaps not, but personal chumros due to one’s yiras Shamayim don’t weaken his Choshen Mishpat responsibility to the bakery owner.”

 

1. Biur HaGra 233:3, Nesivos Hamishpat 233:3.

2. see Nesivos Hamishpat and Shaar Hamishpat for dissenting opinions.

3. Choshen Mishpat 2320:13.

4. Piskei Din Yerushalayim, vol. 8, p. 24.

5. Choshen Mishpat 232:7