Question: Three months after buying a used car, I discovered that the dealer had turned the odometer back 100,000 miles. When I came to return the car, the dealer insisted that since I used it during these months I owe him the equivalent of three months’ leasing. Is there any basis for this?
Answer: The sale of defective merchandise is void from the beginning; the item remains the seller’s and he owes the money back to the buyer. On this basis the Shulchan Aruch rules that if someone bought a house and later found it defective – the buyer has to pay rent for the time that he lived there. (C.M. 232: 15. See discussion in SM”A 232:33 whether this is because of ribbis or gezel.)
Later authorities debate whether the need to pay rent applies also to movable objects or to items that are not intended for rental. (See Ohr Sameach Hil. Mechira 16:8) On account of this dispute, we would apply here the principle of muchzak, whoever is in possession of the money wins. If the dealer has the money, he could withhold the equivalent amount of leasing; if the buyer has not paid yet (e.g., the car was bought through seller financing) he would not have to pay for the use. Beis Din would have to ascertain, though, whether there is a minhag hamedina (common commercial practice) on this issue. If there is a clear practice not to pay rental, the dealer would not be able to withhold money for leasing even if he were in possession.
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Authored by Rabbi Meir Orlian
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