There are expenses involved in the discovery of a mekech taut. There is the delivery cost of the item from the shop to the buyer and the return of the item from the buyer to the seller. Who is responsible for bearing the costs? A buyer ordered 1,000 white shirts from China and when the container arrived he discovered they were pink. This is a mekech taut. It will be too expensive to return the shipment to China so the buyer will now have to find a way to sell it in America. And what if he does decide to return the container to China? Who is responsible to pay for return delivery?
If the seller knew at the time of the sale that the goods he was selling was for export, then if a fault was found, the seller would need to bear the cost of return delivery. From the moment the defect is discovered and the seller is informed, the shirts revert back to the seller and he owes the buyer a refund. If the seller didn't know the goods would be exported and he had reason to believe it would be sold in China, he can't be forced to pay the cost of the return of the items. However if the seller knew beforehand that he was sending defective items, then he is responsible for return shipping costs.
In halacha, there is a difference between grama, unintentional damage, and garmi, damage caused through an indirect way, although not unintentional. The Rambam and the Shulchan Aruh rule that if it was garmi, the seller would have to pay, but if it was grama he would be exempt. The Rama says that in a case where the damage caused wasn't direct but it was immediate and it was clear beforehand that the action would cause damage, it would be considered garmi and beit din could make the person pay.
In the case of the shirts, it was clear that by sending faulty shirts the buyer would suffer damage. As soon as the sale was completed it was sent straight for delivery. So one could claim that this is garmi and the seller would be held responsible. However, where the seller was selling closed packages and didn't know there was a defect and had no intention of causing damage, it would be grama and the seller would not be made to pay for original delivery costs. He would however have to pay for return costs because once the defect is discovered, the items revert back to the seller and he must pay to get it back unless he did not know that they would be exported.
When returning products there may be other expenses involved. For example, someone bought a new bathtub and only after it was installed was a defect discovered. Now there will be a lot of expenses involved in uninstalling it, including breaking the ceramic tiles, the cost of a plumber, and hiring someone to take out the tub. The original cost of installation is similar to the original delivery costs. If the seller knew of the defect he would have to pay. However, when he didn't know and wasn't expected to know, he is exempt. The cost of uninstalling the tub and returning it is similar to the return costs. The tub now belongs to the seller who must pay for its removal and return delivery.
If the item was lost, stolen, or damaged after the defect was discovered, who is responsible? In any case of a mekach taut, the sale is null and void and the property reverts back to the seller. But what is the responsibility of the buyer in whose domain the property is?
A shomer chinam, someone who guards an item
free of charge, is only responsible for negligence. A shomer sachar, someone who is paid to look after an item, is responsible for loss and theft but not for ohness, something totally out of his control. Until the buyer informs the seller of the defect, he is responsible for the item like a shomer sachar. From the moment he tells the seller about the defect, he reverts to being a shomer chinam.
According to halacha, in the case of a faulty sale, the seller must refund the buyer in cash. However, the accepted custom today is to offer an exchange or credit.
If the buyer consumed the defective product he can't demand his money back because he has already benefited from it. The Shulchan Aruch rules that where meat was sold as kosher and then it turned out to be non-kosher d'oraita, the fact that the buyer already consumed it does not mean he benefited from it, and the seller must still recompense him. Concerning damage done to the buyer's pots, if they can be koshered, he is exempt. If they cannot be koshered, then it depends if the damage was grama or garmi. If it was garmi the seller must reimburse the buyer. If it was grama then he is exempt. If the meat was only rabbinically prohibited and the seller already ate it, it's considered as if he benefited from it and he cannot demand his money back. If some of the meat was left over, he can return it and get his money back.
