Last summer, the Glicks ordered a gold-plated watch for their new son-in-law, who wore it on Shabbos and Yom Tov.
Over Pesach, Mr. Glick noticed that the watch was not the brand that he had ordered. He discreetly asked his daughter and was shocked to hear that they received a high-end watch in place of the one he had ordered.
After Pesach, Mr. Glick contacted the store owner, Mr. Zeigler, and inquired about the watch.
“Let me check into the matter,” Mr. Zeigler replied.
Later that day, Mr. Zeigler called. “It seems that there was an error in processing the order form,” he said. “Indeed, the watch that was sent is worth much more, five times the price that you paid. I’m willing to grant you a 20 percent discount but I cannot leave the watch with you without a fair payment.”
“I never would have agreed to pay so much!” objected Mr. Glick.
“Well then, I’ll have to ask that the watch be returned,” replied Mr. Zeigler. “I’ll send what you ordered.”
“You can’t do that!” Mr. Glick said. “It was your error, not ours! Anyway, so much time passed. You’ll embarrass me terribly.”
“Admittedly, it was my error,” acknowledged Mr. Zeigler. “However, errors can be corrected; I didn’t know about this until now. I realize that it can be awkward for you; that is why I’m willing to grant you consideration and allow you to buy it at a 20 percent discount.”
The two decided to approach Rabbi Dayan with the issue and asked:
“Does Mr. Glick have to pay for the more expensive watch?”
“The Mishna (B.B. 83b) teaches that when the seller provides the buyer a different item than he ordered, the transaction is null and void, so that either party can retract, even if discovered much later,” replied Rabbi Dayan. “For example, if he ordered white wheat and received brown wheat, or ordered olive wood and received sycamore wood” (C.M. 231:1).
“However, if the parties stipulated a certain quality, and it was a different quality, such as grade A wheat instead of grade B, or vice-versa, the one who suffered can retract. However, he cannot force the other party to uphold the sale at a fair price. Nonetheless, this is not considered merely onaah (unfair pricing), but rather mekach ta’us – mistaken purchase (ibid.; Maharashdam C.M. #385; Aruch HaShulchan 233:2).
“In most cases, a different model is considered a different item, since often a person may want specific features or styles in that model, like different kinds of wheat or wood. Even if we would not consider it a different item, e.g., the features and style of the watch were similar although of a higher quality than the one ordered, Mr. Zeigler, who suffers, can void the sale (Pis’chei Choshen, Geneivah 12:29-30).
“Nonetheless, if the watch was devalued through use, Mr. Zeigler cannot require Mr. Glick to cover the loss in value, since his son-in-law acted as expected with the item (C.M. 232:22-23).
“If the sale is voided, it is questionable whether Mr. Zeigler can charge a fair rental fee for use of the watch since the Glicks did not have any intent to rent the item. Moveable items may be different from real estate sales that were voided, where the buyer must pay rent for his use meanwhile (see C.M. 232:15; Or Same’ach, Mechirah 16:8).
“To avoid an awkward situation, the two of you would do best to reach a compromise,” concluded Rabbi Dayan. “However, Mr. Zeigler cannot force Mr. Glick to pay the higher price of the expensive watch, and Mr. Glick cannot force Mr. Zeigler to relinquish the expensive watch for the lower price.”
Verdict: When a different item was provided, the sale is null and void; either party can retract. When a different quality was provided, the one who suffered can retract. However, he cannot force the other party to uphold the sale at the fair value. To avoid an awkward situation, it is best to reach a compromise.
