Question: A clothing store advertised an “inventory clearance” sale, stating in bold letters, “All sales final; no refunds, no exchanges.” I bought a packaged dress shirt that proved defective. Can I return it?
Answer: The Shulchan Aruch writes that even if the seller stipulates that the customer will not be entitled to a claim of defective merchandise – he is still entitled to claim, unless the defect was specified or valuated. (Choshen Mishpat 232:7) This is either because a person has to be aware of what he is foregoing or because the customer can claim that he did not really expect a defect and was not sincere in foregoing his rights. (SM”A 232:16) Thus, you should be able to return the shirt.
Despite this, it seems that would not be able to return the shirt for two reasons. First, as mentioned last week, the common commercial practice supersedes the standard halacha here, and nowadays the common practice seems to be that such sales are final even if merchandise proves defective. Second, these sales are typically discounted significantly, and part of the low price is to compensate for the risk of defect.
Similarly, we mentioned in an earlier issue that defective merchandise can be returned even if discovered years later. However, Responsa Maharsham writes that if the sales terms stipulate that a defects claim can only be made within eight days – if the common practice is to follow the sales terms we also follow them. (III:128)
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Authored by Rabbi Meir Orlian
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