For his bar mitzvah, David’s father bought him high-quality tefillin from a sofer whom he knew in Yerushalayim.
Six years later, David went to learn in Israel. He decided to have his tefillin checked, and brought them to the sofer from whom they were purchased.
“Shalom, I’m David Rosenblum,” he said to the sofer. “Six years ago, my father bought these tefillin from you for my bar mitzvah. I’d like to have them checked.”
“I know your father well,” said the sofer. “I remember him telling me about your bar mitzvah. I’ll have them checked by 5 p.m.”
David returned later to the sofer. “I recognize the parshiyos as my handwriting,” said the sofer. “Unfortunately, though, one of the parshiyos of the shel rosh is pasul. A set of new parshiyos costs $300. Should I put them in?”
“I’ll have to ask my father,” David replied. “I’ll call him now.”
“If the parshiyos are pasul, that should be the sofer’s problem!” Mr. Rosenblum exclaimed. “He wrote them. Please let me speak with him.”
David handed the phone to the sofer. “We bought the tefillin from you,” Mr. Rosenblum said to the sofer. “If one of the parshiyos is pasul, why should we have to pay for new ones?! The tefillin are not old!”
“You bought them six years ago,” replied the sofer. “There’s no way of knowing when they became pasul. All my parshiyos are checked by an outside magiah (proofreader) and by computer. Presumably they were kosher when I put them in.”
“Can I put Rabbi Dayan on the line?” asked Mr. Rosenblum.
“Certainly,” said the sofer.
Mr. Rosenblum included Rabbi Dayan on the conference call and asked:
“Who bears responsibility for the pasul parshiyos?”
“Clearly, tefillin that are pasul are considered defective merchandise,” replied Rabbi Dayan. “The sale can be voided, even if discovered many years later” (C.M. 232:3).
“Furthermore, the letters of tefillin must be written in order, so that in many cases – unlike a sefer Torah – they cannot be corrected afterwards. Even the subsequent parshiyos of the shel rosh that are intact cannot be used by merely replacing the one defective parasha” (O.C. 32:23-25).
“However, the sale is void when the p’sul is from the beginning, for example, an extra or missing letter. This is rare nowadays, when the parshiyos often undergo a computer check. Nonetheless, it can happen with an improperly written letter, such as a yud that is a little long and marginally becomes a vav, or a kaf whose bottom right corner is not sufficiently rounded and marginally becomes a beis.
“Much more common is a letter that is cracked, especially on the fold. The question then arises: Did the crack occur before the sale, perhaps when folding and inserting the parshiyos, or over time, after the tefillin were already in the hands of the customer?
“The Gemara (Kesubos 75b) teaches that when there is doubt as to when the defect occurred, the burden of proof is on the person in whose possession it was discovered (kan nimtze’u kan hayu). Thus, if the defect was discovered in the hands of the buyer, we presume that it occurred in his possession, and the loss is his – even if he hasn’t fully paid yet and still holds the money” (C.M. 224:1-2; 232:11; Sma 232:24-25).
“Parshiyos that were checked in the standard manner before being inserted in the tefillin are b’chezkas kashrus. Since they now belong to the customer, we assume that the crack occurred in his hands” (Kesef Kodashim 232:11).
“Thus,” concluded Rabbi Dayan, “if we cannot ascertain when the p’sul developed, since it was discovered after the tefillin belonged to David, we presume that they became pasul in his hands, so that you must pay for the new parshiyos” (Pischei Choshen, Geneivah V’onaah 12:34-39).
Verdict: When a crack was discovered in a letter in tefillin, we presume that it occurred in the hands of the customer in whose possession it was found, so that the initial sale remains valid.”