Q. My son learns in a yeshivah in Boro Park. He called me on a Thursday to tell me that the bridge of his rimless glasses broke. I told him to go to a local optical store to have it fixed. Stores were already closing, but he found one store that was still open and had it repaired for $65. When he returned to yeshivah, his friends pointed out to him that the new bridge did not match — the temples of his glasses are gold, and the new bridge is brown. He tried to return to the store to get it changed, but it was closed. The next day, Friday, he was planning to come home to Monsey, and the store here would replace the bridge for significantly less. Is he permitted to void the sale with the store in Boro Park and get it fixed in Monsey?
A. If someone purchased a defective item, the buyer may void the sale. If he used it after he realized it was defective, however, then he may no longer return it. Using the defective object constitutes an implied mechilah, forgoing his claim (Shulchan Aruch, Choshen Mishpat 232:3 with Pis’chei Teshuvah 1; see BHI issue #669). The same would seem to apply if he received a different item than requested (see Shu”t HaRadvaz 4:1206).
Therefore, if your son continued wearing the glasses after his friends informed him about the issue, this would be considered mechilah.
Yet there is a mitigating factor here that might cause his wearing the glasses not to be considered mechilah: if your son had to keep wearing the glasses when the store was closed because he truly needed them and had no other recourse. This is akin to a case discussed by the poskim in which someone bought a horse to go on a trip, and in the middle of that journey, he noticed that it was injured, and travelled back on it. The poskim rule that this is not considered mechilah since he was compelled to ride the horse — an oness — because he had no other way to travel (Pis’chei Teshuvah 232:1). In this case, however, since no other shop was open at that time, he would not have had glasses to wear without that store repairing it. As desperate as he may be for his glasses, he would not be permitted to use the bridge that belonged to that store without permission. If he would void the sale, he would retroactively have been stealing that bridge when he wore the glasses, so we assume that he chooses to forego his claim rather than be a thief.
But even if the buyer did not use the item after noticing the defect, some poskim still maintain that he might have forgone the opportunity to void the sale.
The Maggid Mishneh (Hilchos Mechirah 15:3, cited in Sma 232:10) writes that if the buyer could have inspected the object for defects and chose not to, it is considered mechilah. The majority of poskim limit this ruling (see Pis’chei Teshuvah ibid. 1; see Mateh Shimon 233, Hagahas Tur 1).
Some say that the Maggid Mishneh’s ruling applies only if the buyer had an opportunity to inspect the item before the sale was finalized and didn’t do so (Shu”t Shvus Yaakov 3:169; Terumas Hakri 232). Others write that having an opportunity to inspect is considered a mechilah only if he used the object without inspecting it (Nesivos ibid. 1).
According to these approaches, in your case, it is possible that even if your son did not notice the issue when he wore the glasses, it might still be considered mechilah.
But other poskim limit the ruling of the Maggid Mishneh to cases of a defect, in which the object is what the buyer intended to purchase, so we can assume that if he chose not to inspect it for defects, then it is mechilah. But if the item the seller delivered wasn’t what the buyer agreed to purchase, we cannot assume that his not inspecting it means that he accepted the substitution (Shu”t Pnei Moshe [Benvinisti] 2:55; see Nesivos loc. cit.; cf. Shu”t HaRadvaz 4:1206).
Others write that if it is uncommon for a mistake to have occurred, and there was no reason for the buyer to inspect it, then his failure to inspect it does not constitute a mechilah, and he may void the sale when he realizes that the item he received was defective or not what he ordered (Chochmas Shlomo and Mishpat Shalom 232:3; Maayanei Chochmah, Bava Metzia 60a; see Pnei Moshe loc. cit.)
Especially, if the buyer clearly would not have agreed to accept the merchandise that was actually delivered — such as in your son’s case, in which no one would wear glasses in which the bridge and temples do not match —even the Maggid Mishneh agrees that in the case of a severe defect, the buyer’s failure to inspect the item is not considered mechilah (Shu”t Beis Shlomo, Choshen Mishpat 62).
Given all of the above, if your son did not wear the glasses once his friends pointed out that the bridge didn’t match, then he may void the sale. But if he did wear them, then it is subject to the above discussion regarding oness.
