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May 23, 2015 / 5 Sivan, 5775
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Identical Copy

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“I need a set of Mishnah Berurah for yeshiva next year,” Benzion Lerner told his father.

“I’ll be happy to pick one up on the way home from work tomorrow,” Mr. Lerner said. “What kind do you want?”

“You know, the big brown one with nikkud (vowels and punctuation),” replied Benzion.

The following day Mr. Lerner went to the local sefarim store and chose a set of Mishnah Berurah. “Do you accept returns?” he asked the storeowner. “I’m buying this for my son and want to make sure this is the edition he wants.”

“We allow refunds or exchanges within two weeks,” replied the manager. “Of course, you must present the original sales receipt.”

When Mr. Lerner came home, he showed Benzion the set. “Is this the kind you wanted?” he asked.

“Yes,” replied Benzion. “Thank you very much!” He immediately wrote his name in each volume of the set.

The following week was the big avos u’banim (father-and-son learning) raffle. Benzion won a Mishnah Berurah, exactly the kind his father had just purchased.

“Guess what?” Benzion exclaimed when he returned home. “I just won an identical Mishnah Berurah in the avos u’banim raffle.”

“Very nice!” Mr. Lerner laughed. “What will you do with it?”

“Do you still have the receipt from the Mishnah Berurah you bought me?” asked Benzion.

“I think so,” replied his father. “Why? Do you want to return it?”

“I already wrote my name in the set you bought me,” said Benzion. “But I can return the one I just received in avos u’banim.”

“I’m not sure you can do that,” said Mr. Lerner. “That’s not the set I bought from them.”

“What’s the difference whether I return the set that I bought or the set that I won?” asked Benzion. “It’s identical and brand new!”

“There doesn’t seem to be any real difference, but I’d like you to check with Rabbi Dayan before you do this,” said Mr. Lerner. “He’s happy to talk to young, budding talmidei chachamim!”

Benzion went to Rabbi Dayan’s beis horaah. “My father bought me a set of Mishnah Berurah that I wrote my name in, and then I won an identical set,” Benzion related. “Can I return the other set, instead, for a refund or exchange?”

“You cannot return it for a refund without alerting the storeowner,” answered Rabbi Dayan, “but you might be able to return it for an exchange.”

“That’s an interesting psak,”noted Benzion. “Can you please explain the rationale behind it?”

“The store grants its return policy only to the original item purchased in the store,” explained Rabbi Dayan. “To return another item under the guise of the original one would be geneivas da’as (misrepresentation).” (C.M. 228:6)

“What difference does it make to the storeowner,” asked Benzion, “whether I return the original sefer or an identical one?”

“When you purchased the sefer, the storeowner made a profit on the sale,” explained Rabbi Dayan. “When you return the sefer for a refund, he loses his profit. Although his return policy allows a refund for the original sefer despite the loss, that does not mean he is willing to lose his profit to receive a different copy.”

“How is an exchange different?” asked Benzion.

“Assuming the profit margin is similar for all sefarim, it could be zeh neheneh v’zeh lo choser – you gain and the storeowner doesn’t lose,” replied Rabbi Dayan. “When you exchange the set you won for a sefer of comparable cost, the storeowner retains his profit either way. Thus, it might be permitted and not considered geneivas da’as.” (C.M. 363:6-7)

“Why did you say, ‘might’ be permitted?” asked Benzion.

About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to subscribe@businesshalacha.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail ask@businesshalacha.com.


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