Crime and Punishment in Jewish Law: Essays and Responsa

By Walter Jacob; Moshe Zemer | Go to book overview

who was unaware of the potential health hazard of his product when it was installed? ( Rabbi M. Levin, Kansas City, Missouri)

ANSWER: This entire matter is governed by a simple biblical statement, "When you sell property to your neighbor, or buy anything from your neighbor, you shall not wrong one another" (Lev. 25:14). This law has been further developed in the Talmud and later codes. Maimonides made the seller responsible for disclosure of any defect to the buyer ( Hul.94a; Yad Hil. Mekhirah18.1; Tur Shulhan Arukh Hoshen Mishpat227; Shulhan Arukh Hoshen Mishpat227.6; Sefer Hamitzvot Lo Ta-aseh #250). There is disagreement over the possibility of waiving such liability. Maimonides felt it could not be waived ( Yad Hil. Mekhirah15.6). Asher ben Yehiel disagreed ( Tur Hoshen Mishpat232.7); the discussion on waiver of responsibility was continued in the later responsa.

Traditional texts discuss specific items in which defects have been discovered. One of the primary grounds for recovering the purchase price involves an item which may have a dual use and the buyer finds it not suitable for his purpose. This would be true of eggs, which may be eaten or hatched, seed which may be consumed or planted, an ox which may be used for plowing or slaughtered for food, etc. If the buyer did not inform the seller of his intended used then he has no recourse (B. B. 90a; Yad Hil. Mekhirah 16.2).

In these instances, and others like them, the seller had to provide a sum which made good on the defect, but the items purchased were not returned to him. However, if the defect was major and in a permanent item like a building, then the buyer generally had the right to return the building to the seller, though he might settle for payment of repair costs. For example, Asher ben Jehiel spoke of a building which had been severely damaged by vandals during the period of the sale. In that instance, the damage was repairable, and so the seller was responsible for payment of the repairs. However, if the damage had been more serious, and if the item could not have been restored to its original state, then the seller would have been forced to take it back ( Asher b. Jehiel, Responsa, Section 96, #7; Joshua Falk to Tur Hoshen Mishpat232.5; Joel Sirkes to Tur Hoshen Mishpat232.4).

Each of these instances dealt with defects which were readily discernible and not latent as in the case of the asbestos. Furthermore, they dealt with defects which were discovered in a

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