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Shabbat Parashat Pinchas 5778

P'ninat Mishpat: Compensation for the Flaws of a Used Car part I

(based on ruling 70061 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl), a used car salesman, sold the defendant (=def) a car for 10,000 shekels in installments with a standard contract. An expert test-drove and inspected the car and recommended it for def over other cars. Pl told def that there had been an electrical problem that was professionally fixed. Def is experiencing several problems, the most important being that during the first 24 hours after rain, he is often unable to get the car to start. Due to this, def is refusing to replace the last 700-shekel check (the original had a mistake). Pl demands that def pay the final payment and points out that the contract states that pl checked the car and relinquishes the right to complain about flaws. Pl also says that the problem that needed fixing was the car’s shaking due to it not working on all cylinders; the present problem is a new one for which he is not responsible. Def claims that pl told him that the problem was an electrical one having to do with wetness, i.e., the present problem. Def does not want to nullify the sale but to reduce the price. In addition to the outstanding 700 shekels that he does not want to pay, he demands the return of another 700 shekels. Beit din spoke both to the person who sold the car to pl and to an expert on cars. According to their “testimony,” it is difficult to know whether the present problem was pre-existing.

 

Ruling: Is it possible for a buyer to uphold his sale but ask for a partial refund due to flaws? The Shulchan Aruch (Choshen Mishpat 232:4) says that a seller can say to a buyer that if he demands a significant reduction due to a flaw, the seller can nullify the sale. On the other hand, the Shulchan Aruch (ibid. 5) discusses the case of temporary flaws that can be fixed and says that the seller can say he wants to reduce the price enough to use the money to fix them instead of returning the item. There, it is the seller who initiates the reduction, instead of nullifying the sale, not the buyer. However, since here both sides want to uphold the sale, it should be possible for the buyer to receive a reduction according to the lower level of value.

Can we figure out when this problem began? Generally, if a blemish is found only after the sale, we say that it developed in the domain of its present owner and he cannot make demands (Ketubot 75b). However, in this case, based on the testimony of the seller and an expert, there are reasonable grounds to see the present problems as a continuation of a pre-existing situation. Actually, pl himself claimed that problems very related to the present problems existed before, just that he claimed to have fixed them responsibly. Therefore, there seem to be grounds for def’s counter claim demanding a price reduction.

Next time we will investigate the significance of the contract’s clause and whether to factor in pl’s “admission.”

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