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Shabbat Parashat Haazinu 5780

P'ninat Mishpat: Dissatisfaction with the Quality of a Sefer Torah Part I

(based on ruling 77036 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl) hired his friend, the defendant (=def), a part-time sofer, to write a sefer Torah. The contract states a price of 130,000 shekels plus VAT and says that the writing will be mehudar. It also states that pl saw samples of def’s writing and that pl has the right to demand the switching of sections of lower levels of quality without charge, as long as Rabbi X agrees this is appropriate. Toward the end of the writing, after pl paid 113,780 shekels, pl experienced financial problems, looked to sell the sefer Torah, and asked for two sections to show to merchants. Several experts told him that the sefer would be worth, when finished, 70-80,000 shekels. Def presented a letter, from an expert with whom he is connected, saying that the writing is proper. Pl also sent def an email during the process in which he praised def’s work. Originally, pl asked either: 1) receiving a completed kosher sefer and a return of the money above the 80,000 shekel it is worth, or 2) employing mekach ta’ut (invalid purchase) and a return of all the money. Def argues that the sefer Torah is fine and worth the price and that, in any case, any kosher sefer is defined as mehudar. Also, since pl saw the work before agreeing and could have had the written sections checked all along, it is too late to claim mekach ta’ut. Also, a major reason that pl chose def is that he considers def a tzaddik, and this has not changed.     


Ruling: In order to preserve the relationship between the two friends, beit din recommended the following compromise. Pl would receive the incomplete sefer Torah, have someone finish it (including checks and fixing), and let def keep 77,000 shekels plus VAT. Def rejected the offer.

There are two ways to have a mekach ta’ut – 1) the quality is beneath that which was promised (Shulchan Aruch, Choshen Mishpat 232); 2) there was major overpricing (ibid. 227:4). Beit din hired an expert to decide between the experts each side brought. Our expert specified letters that were written poorly and pointed out several elements of the writing that lowered its quality. He estimated the retail value of the sefer Torah, after its finishing, checking, and fixing mistakes, at 90,000 shekels. He said that while it could be made kosher, it would not be considered mehudar.

Since the parlance of the average person distinguishes between a kosher sefer Torah and a mehudar one, this is like a case of claiming to sell good produce and giving bad produce, in which case there is mekach ta’ut. This is apparent from the contract as well, which talks about replacing sections that are not considered mehudar, which is obvious if not mehudar means not kosher.

Additionally, since the expert estimated the value at 90,000 shekels, which is more than a sixth off of the 130,000 that def was promised and still demands, the mispricing is also grounds for mekach ta’ut (Shulchan Aruch ibid.).

Next time we will look at the question of pl’s acceptance of the quality.

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