Ari had purchased six white shirts from his local clothing store before going to learn for the year in Israel. He decided to leave the shirts in their original packaging and open them during the year as needed. One of the shirts that he opened for Sukkos turned out defective, with a small stain on it. Ari put it aside in his closet.
Ari’s brother, Shraga, was planning to visit him during the winter. “Please ask the store what to do about the defective shirt,” Ari said.
Shraga asked the store about the defective shirt. “When that happens, we sell the shirt as an irregular for half-price,” said the owner. “We can either refund your brother half the amount or we’re happy to replace the shirt. Have him send it back and we’ll give him a new one.”
“I prefer to have a new one,” Ari told Shraga. “I’ll send the defective one back with you when you come.” Shraga conveyed the information to the storeowner.
When Shraga was ready to go back, Ari looked in the closet, but the shirt was missing.
“This is very strange,” Ari said. “I know that the shirt was still there two weeks ago. Someone must have taken it by accident.”
“What happens now?” asked Ari. “If I can’t return the shirt, I’ll have to pay the half-price for it if I want it replaced.”
“Why should you have to pay?” reasoned Shraga. “You never accepted responsibility for the shirt.”
“But it’s mine until I return it,” said Ari.
“Is it?” argued Shraga. “The shirt was defective from the beginning. The sale was a mekach taus, a mistaken transaction); it’s their loss, not yours.”
The two decided to consult Rabbi Dayan. “Am I liable for the missing shirt?” asked Ari.
“When merchandise is defective, the transaction is void,” replied Rabbi Dayan. “Thus, the defective item remains property of the seller and the buyer becomes a guardian over it. The Rambam and Shulchan Aruch write that the buyer is liable for theft and loss, like a shomer sachar, until he notifies the owner. Nesivos explains that this is because the buyer has the option of upholding the sale if he has any reason to, such as using the item as is or selling for a small profit.” (C.M. 232:21; Shach 232:17; Nesivos 232:9)
“What about after notification?” asked Shraga.
“The seller is expected to collect the defective merchandise, like other entrusted items, that is the owner is responsible to collect them,” replied Rabbi Dayan. “Therefore, after notification, the buyer is considered only a shomer chinam, and is no longer liable for theft. However, Aruch Hashulchan writes that the buyer remains liable for theft even after notifying until the seller has time to collect it.” (Sma 232:51-52; Aruch Hashulchan 232:35)
“Does it make a difference whether the item was intended for export?” asked Ari.
“The Rambam and Shulchan Aruch write that if the seller knew the merchandise was intended for export, he is responsible to retrieve it from there or sell it there,” replied Rabbi Dayan. “However, if the buyer was not expected to take it elsewhere, he is responsible to return it to the city of sale. He has to undo what he did by distancing the item from the city and remains liable until then.” (Sma 232:53; Nesivos 232:10; Pischei Choshen, Ona’ah 13:13,25)
“What about our case?” asked Shraga.
“Since it was expected that you might take the shirts overseas, you are no longer liable for theft after notifying,” answered Rabbi Dayan. “Of course, this assumes that the store believes you that the shirt was defective and missing. I should further note that if the store has a standard return policy for defective items, that policy is binding, since the initial transaction was done with this understanding.”