Scenario: Reuven purchased a necklace from Mr. Gold for his kallah. After a few days one of the links of the necklace broke. Reuven brought the necklace to a jeweler to repair the necklace. Some time later, another link cracked, and Reuven brought the necklace back to Mr. Gold for a refund for the defective necklace. Mr. Gold refused to issue a refund since Reuven had given the necklace to the jeweler to repair. All he would do was repair the necklace. Reuven agreed to that arrangement. The necklace broke a third time and it was repaired again. The fourth time it broke, Reuven’s kallah did not realize what had happened, and the necklace fell and was lost.
Question: Reuven wants a full refund of his money. Mr. Gold argues that he is not obligated to refund the money for the broken necklace if it is not returned. Whose claim is correct?
Answer: The general rule regarding defective merchandise is that if an object becomes ruined or lost as a result of an unknown defect, the seller must bear the loss (Choshen Mishpat 232:22). As such, since the necklace was lost due to its defect the seller should be obligated to refund the buyer’s money even though the necklace cannot be returned. Our case, however, contains another element. Choshen Mishpat (132:3) rules that when a buyer continues to use the object after discovering its defect he waives his right to demand a refund. Consequently, when Reuven had the necklace repaired by the jeweler the first time that it broke, rather than immediately returning it to Mr. Gold for a refund, it would seem that he waived his right to demand a refund. On the other hand, one could argue that Reuven did not realize that it was defective the first time it broke. Only later on, after it happened a number of times did he realize that it was defective and it is therefore that he may still expect a refund.
Another principle that might seem to favor Reuven, is found in Teshuva Maharash Engel (vol. 5 chapter 18). He writes that using a purchased defective object does not always waive the right to cancel the deal. It is only when the object could serve its intended function, albeit with difficulty, that we assume that using it subsequent to discovering the defect, constitutes a relinquishment of one’s right to demand a refund. However, an object that is purchased for a specific purpose and the defect renders the object incapable of serving that purpose, it may be returned even if the buyer used it after discovering the defect Accordingly, Reuven could argue that since the necklace was purchased to be worn by his kallah and due to its defect she cannot wear the necklace, it may be returned for a full discount even though it was used after discovering the defect.
Final Ruling: Clearly there are numerous angles to this case. Although there are valid reasons for a refund, due to the various conflicting perspectives, the final ruling is that Reuven cannot force Mr. Gold to refund his money.