Q&A: Bought a Defective Product
Bought a Defective Product
Question
Hello and blessings,
If someone bought milk at the grocery store and when he got home he saw that the milk was expired, and the seller in the store is an older, strict man who refuses to replace it (half an hour after the purchase), because he says he doesn’t believe this is the milk that was bought there — is he allowed, on his own, to put the milk he bought back in the store, take another one, and leave?
Answer
In principle, a person may take the law into his own hands only in a case where he can prove his claim in a religious court.
You can check what the law says in such a case. If the law requires him to replace it, then you are permitted.
If you really want to be extra righteous, check his milk stock and see whether there are more expired cartons. Photograph them and show him. Tell him that you will pass this on to the Ministry of Health or the relevant authority. By the way, in any case, if you find expired items, it is proper to make sure they are not sold.
Discussion on Answer
I understood all that. What I said was that if you check with a lawyer and he tells you that according to the rules of evidence in the law you are in the right, then you can replace it. For an expired product there is certainly an obligation to replace it. That part doesn’t need checking.
Why, if I can’t verify it, am I forbidden? I always thought that if I am sure the law is on my side, I am allowed to take the law into my own hands even if I have no evidence. Meaning, the distinction between whether I have evidence or not is only with respect to the ruling that will be given in religious court when the other litigant sues me: if I have evidence, I’ll be exempt in court, and if I don’t, I’ll be liable, because a judge has only what his eyes can see, etc.
In short, I’d be happy if someone could point me to where it explicitly says otherwise.
Hoshen Mishpat, section 4, סעיף 1. Although regarding a Torah scholar, some permitted it even if he cannot prove it (the Vilna Gaon there, subsection 14).
The commentators there say that everything written there — that if he cannot clarify that it is his, he is forbidden to take it out — means with witnesses. But if he can take it without witnesses, he would be believed by virtue of a migo. That proves that morally speaking (let’s call it the laws of theft) there is no problem, and it is only from the standpoint of the religious court that he has no such authority.
No?
I haven’t checked it now, but the question of credibility is a different question. If he has a migo, then he will be believed. That does not mean he is permitted to do it. From the wording of the Shulchan Arukh it is clear that it is forbidden to do so unless he can prove it. It is not dealing there with credibility.
On the contrary. It is not dealing with the question of permitted or forbidden, but only with credibility. And in fact, in terms of placement, this law is found in the laws of judges, regarding whether a person may take the place of the judge and use force in order to recover what is his. And the novelty is that when this case comes before the judges, it will be judged whether he acted according to the rules of law; if so, then he judged a true judgment and everyone can go home quietly, and if he did not meet the legal criteria, then from the standpoint of the religious court he has no such authority, and he is liable like anyone else who struck and stole while making claims unsupported by evidence.
If this were a question of permitted or forbidden, it would appear in Yoreh De’ah.
But I agree that we can agree to disagree.
Sorry for the length, and thanks for the patience!
I don’t know whether we agree or not, but the point from the placement of the law is incorrect. It is not placed there because they are discussing what the judges need to decide; otherwise it should have been placed in the laws of claimant and defendant. Rather, it is there because the person who takes the law into his own hands functions as a judge (and the later authorities discussed this at length, and you yourself mentioned it). Therefore it appears at the beginning of Hoshen Mishpat in the laws of judges.
And so too regarding your comment about permitted or forbidden in monetary law. It does not appear in Yoreh De’ah but in Hoshen Mishpat. Does the prohibition of theft appear in Yoreh De’ah?!
Thank you very much, but Rabbi, the seller isn’t saying that if I bought something expired that’s my problem. He’s only yelling that this is not the milk I bought from him and that I’m a liar, that he doesn’t sell expired products. But I know that this really is that milk. In this case, the five shekels are gone, no big deal, and I learned my lesson to check in the store. But I’m asking in principle: I can’t prove that this is the milk, but I know that it is.