Q. Before Sukkos, I went to a store to purchase a s’chach mat for my sukkah, which is five by ten feet. The closest-sized mat the store had was six by ten, but the salesman advised me to cut it down to size. After paying for the mat, I asked a worker to cut a foot off of the width, and he did as I requested.
When I got home and rolled out the mat, I realized that it was only eight feet long instead of ten. Apparently, the case contained a smaller mat than the label read. I returned to the store to point out the error, but the storekeeper refused to refund my money or give me a different mat. He explained that I could not return it to him because he had received the mat in the wrong case from the manufacturer. Had it not been cut, he could have been able to exchange it, but now he could not return it to the manufacturer without getting into a battle with him over liability, which was not worth his time, so he would end up taking the loss for something that was not his fault.
Am I entitled to a refund or replacement?
A. The Shulchan Aruch (Choshen Mishpat 232:13-14) discusses the case of a person who sold a defective item, and the buyer damaged it further before he realized that the sale could be canceled (because it was a mekach ta’us).
The Shulchan Aruch differentiates between two types of damage caused by the buyer. If he used the object in its intended manner, he is not responsible for damaging the object, and he is still entitled to void the sale and he is not liable for the damage caused by his use. For instance, if someone bought fabric to fashion a garment, and after he cut it, he realized that it was defective, he may return the pieces to the seller.
If, however, his use of the object was abnormal, then he is responsible for the damage he caused.
This halachah is derived from the case of a person who bought a cow to slaughter it, and when it was slaughtered, it became obvious that it had become a treifah before it was purchased. The halachah is that even though the animal had been devalued when it was shechted, he may return it to the previous owner in its current state (ibid. 11). Since shechting an animal is considered normal use, he is not liable for the devaluation (Sma 29).
The Nesivos (5) explains that the reason for the distinction between damage caused by normal and abnormal use relates to the care a person is expected to take in handling an item that he bought. Generally, a person who causes damage b’oness (through a situation beyond his control) is liable, but many poskim differentiate between types of oness. If it was an oness similar to a shomer (guardian) losing the object he was meant to watch, which is not considered a true oness, then he is responsible for the damage. But if it was an oness similar to the object’s being stolen, which is considered an oness, then he is not liable (see Choshen Mishpat 378:1).
Likewise, a buyer should take into account that the item he is purchasing might be defective and he might have to return it. Therefore, if he uses it in its intended manner, he bears no liability for damage caused to the item in the course of this normal use. But if he diverged from the ordinary use, then he is liable.
Others explain that if the item turns out to be defective, and it can be returned to the seller, then the buyer is retroactively considered a shomer for it as long as it is in his possession. As such, he is liable for it if he is negligent, but not if he used it in the typical fashion (Divrei Mishpat ibid.).
In your case, it would have been unreasonable to expect you to unroll the mat to check the length before it was cut, and you had no reason to believe that it wasn’t the correct size. Since you were not negligent in having it cut, you may void the sale, despite the mat’s now being damaged, and the storeowner is required to refund your money or replace the item.
The storekeeper’s claim that this is not his fault because this is how he received it from the manufacturer does not absolve him, because the halachah is that a retailer who was cheated may not turn around and cheat his customer (Choshen Mishpat 232:18).
