1)    Inability to retract – Kinyan was made:[1]

Once a valid Halachic acquisition [i.e. Kinyan] has been made on the product that one is receiving or purchasing, then it is no longer legally possible for any of the two parties to retract from the deal, as the transaction and transformation of ownership has already taken place. This applies whether to a gift that was given to a person, and that person or the giver now wants to retract it, or to a purchased item that was already received by the buyer, and the buyer or seller now wants to retract from the sale. This applies even if both parties consent to the nullification of the transaction, and a new valid Halachic acquisition must take place between the buyer and seller in order to reverse the ownership.[2] Even in this case, however, there do exist exceptions in the event of a Mekach Taus, or the existence of a refund policy, as we will soon explain.

What is considered a valid acquisition:[3] The laws of defining a legal acquisitions are complex, as there exists a number of different forms of acquisition[4], of which their validity is dependent on the product being purchased, such as real estate versus a movable object.[5] This itself is subject to change based on whether the buyer or recipient is a Jew or Gentile.[6] There is also discrepancy between the Biblical versus the Rabbinical legality of an acquisition, such as by Kinyan Kesef[7], and many acquisitions are subject to dispute amongst the Poskim as to their status regarding all the above. Accordingly, it is beyond the scope this article to delineate the various forms of acquisitions and their status, and full books[8] have been written on this subject alone. Nevertheless, to not leave the matter completely unclear, we will suffice with noting that when acquiring light movable objects [i.e. Mitaltalin], the Kinyan of Hagbah, which involves the recipient lifting[9] the object is considered a valid acquisition.[10]

Example-When does the Kinyan take effect in a store? Once one has lifted the purchased item, and certainly once he has taken it out of the store into his car and house[11], then the item becomes legally his and he no longer retains the legal right to change his mind and nullify the transaction, absent of a Mekach Taus or store/state refund policy. [Furthermore, even when the person lifts the item in the store prior to payment, some argue that it is considered that he has Halachically purchased the item, being that he has performed Hagbah to the item.[12] Nonetheless, even according to the approach that it is considered his, it has the status of an item that was purchased with intent to evaluate and eventually decide whether to keep or not, and hence it may be returned so long as he has yet to actually pay for it.[13]]

Mekach Taus – Defects and wrong charge:[14] Even in the event that a fully valid acquisition has taken place between the buyer and seller, or giver and recipient, to legalize the transaction, nonetheless, in the event of a Halachically defined Mekach Taus, it is permitted for the party who was wronged[15] to retract from the sale [as in truth the sale is viewed as if it never took place[16]]. It is beyond the scope of this article to delineate the various legal definitions of Mekach Taus which permit retracting from a sale and receiving whatever money he gave back in return, although some of the main examples include 1) A blemished product, or product not fitting description at time of purchase.[17] 2) Overcharging or under charging for the product more than 20%, which is known as Onah.[18] There are various details in these two categories and hence a Rav is to be contacted in all cases that the buyer and seller cannot reach an agreement for a requested refund.

Refund policies of Country and business:[19] The above inability to retract from a transaction once a valid acquisition has taken place, as well as the ability to retract from a transaction in the case of Mekach Taus, only applies absent of a store refund policy and in an area that does not contain any consumer laws regarding the issue of returns. However, if the store policy is to permit returns, then certainly one may do so. Furthermore, if the State in which the purchase took place, contains consumer laws and policies which are accepted upon that area, then the laws of returning a product follow all those laws and regulations for all purposes. In such a case, a store return policy that is not legal according to State law, is not binding on the consumer, and he reserves the right to return a product and receive reimbursement as per State law. Thus, for example, in Israel there exists a law which obligates many types of businesses to permit returns within 14 days from purchase even if no Mekach Taus was involved.[20] Accordingly, this state law overrides the regular Jewish law which does not recognize the ability to ask for a return on a product once a valid acquisition has taken place, absent of a Halachically defined Mekach Taus.[21]  In the USA, there is no federal mandate for return policies, although states do individually have state mandates which dictate return policies. For example, in California when reserves the right to return a product for a full refund within 30 days from purchase, unless the business explicitly posts otherwise, in a way visible to consumers.

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[1] Michaber C.M. 189:1; Tur 189:1; Rambam Mechira 1:1; See Imrei Yaakov on Admur ibid 1:1

[2] Rama C.M. 189:1

[3] See Admur 448:8-12; Michaber C.M. 189:1; 198 regarding Kinyan Kesef and Meshicha and Hagbah; 199; 203; 204:1; See Encyclopedia Talmudit Erech “Mitaltalin” Vol. 45; See Imrei Yaakov on Admur ibid 1:1 Shaar Hatziyon 1-18; Sefer Toras Hakinyanim 3 Volumes

Hired worker and prepaid him for part of the work: Is considered a Kinyan and can no longer retract. [Nesivos Hamishpat 333:1; See Imrei Yaakov on Admur ibid Likkutim 3:9]

[4] Various possible Halachic acquisitions exist, including: 1) Meshicha: Taking the product into one’s property or public area. [See Admur 448:8; Michaber C.M. 198:1 and 3; Sefer Toras Hakinyanim Chapter 6]; 2) Hagbah: Lifting the object. [Michaber C.M. 198:1-2; Sefer Toras Hakinyanim Chapter 6] 3) Kinyan Kesef: Paying for the product. [See Admur 448:8; Michaber C.M. 198:1 and 5-6, 15 and 199; Bava Metzia 47b; Sefer Toras Hakinyanim Chapter 3 and 5] 4) Situmta: Any action which is accustomed to being used amongst merchants to finalize a sale, considers the sale final and valid, such as: Marking on the merchandise; Handshake or Tekias Kaf; The giving of a Perutah; Slapping hands; Handing over of keys. These actions are only valid if they are common practice amongst merchants in the area that the sale is taking place, and are used to finalize the sale. [See Michaber C.M. 201:1-2; Admur 448:11; Michaber Choshen Mishpat 129:5; Kesef Kodshim on 201:1; See Imrei Yaakov on Admur ibid Likkutim 1:1 Mekoros 8-11; Sefer Toras Hakinyanim Chapter 12] 5) Kinyan Agav Karka: A Kinyan Agav Karka, involves acquiring a moveable object through acquiring land. [Michaber C.M. 202; Admur 448:11; Chok Yaakov 448:14; See Seder Mechiras Chametz [Levin] p. 162; Sefer Toras Hakinyanim Chapter 11] 6) Kinyan Chatzer: See Admur 448:11; Michaber C.M. 200; Sefer Toras Hakinyanim Chapter 8 7) Kinyan Sudar or Kinyan Chalifin: A Kinyan Sudar involves the seller acquiring an object [i.e. handkerchief] of the buyer, and through doing so the buyer acquires the object. [See Michaber C.M. 195:1; Sefer Toras Hakinyanim Chapter 4] 8) Shtar: A sale contract does not acquire merchandise, but rather as a show of proof for the sale. [See Admur 448:12; Shaar Hakolel Seder Mechira 33; 9) Umdana: When one can assess the intents of a transaction to be of a certain form, it has Halachic status of Umdana, which is Halachically binding. [See Rav Z.N. Goldberg in Techumin 35:346] 10) Dina Demalchusa Dina: [See Rama C.M. 369/11; Chasam Sofer 5 C.M. 44; Rashba 22] 11) Chazaka: See Michaber C.M. 192 and 275; Sefer Toras Hakinyanim Chapter 7; 12) Kinyan Udisa [i.e. admission]: See Sefer Toras Hakinyanim Chapter 13

[5] See regarding buying Karka: Michaber C.M. 190-195 [Buying with Kesef, Shtar, Chazakah, Chalifin]; Buying Slaves: Michaber C.M. 196; Buying Animals: Michaber C.M. 197; Buying Mitaltalin: Michaber C.M. 198-204; See Imrei Yaakov on Admur ibid 1:1 Shaar Hatziyon 10-18; Sefer Toras Hakinyanim Chapter 5

[6] See Admur 448:8-12; Sefer Toras Hakinyanim in each corresponding chapter

Meshicha and Kesef by a sale to gentile: See Admur 448:8 for a dispute regarding Kinyan Meshicha with a gentile. Some opinions rule that a gentile only acquires an item through giving money to the seller and not through Meshicha. [Opinion in Admur 448:8; Rashi Kiddushin 14b; Bechoros 3b; Masas Binyamin 59 and 97; Nachalas Shiva 30; Michaber and Tur, like Reish Lakish] Other Poskim rule the opposite, that a gentile only acquires an item through Meshicha and not through giving money to the seller. [Ruling of Admur in 441:12; Kuntrus Acharon 441:4; opinion in Admur 448:8; Shach C.M. 194:1; Rabbeinu Tam Tosafos Avoda Zara 71a; Ramban; Chok Yaakov; like Rebbe Yochanan] Other Poskim rule that both forms of acquisition are valid, either Meshicha or Kesef. [Opinion in Admur 448:8; Rambam Zechiya Umatan 1:14] Practically, Admur 441:12 and in Kuntrus Acharon 441:4 rules like the Shach ibid that only Kinyan Meshicha works, and not Kinyan Kesef. In his words “As a Jew from a gentile, or vice versa, does not acquire anything with money alone, but rather with Meshicha”

Meshicha by a present to gentile: When a gentile is given a present from a Jew, according to all it suffices for him to carry the object, as money was only said to be required [for acquisition] in a case that the gentile is buying an item from a Jew, and thus has to give him money for it, however in a case that there is no money involved, like when its being given as a present, then carrying the item alone suffices. [Admur 448:9]

Situmta:  A Kinyan Situmta is valid for a gentile. [Admur 448:11]

Kinyan Agav Karka:  A Kinyan Agav Karka is valid for a gentile. [Admur 448:11; Chok Yaakov 448:14; See Seder Mechiras Chametz [Levin] p. 162]

Kinyan Chatzer:  Kinyan Chatzer is invalid by a gentile as a Chatzer acquires Midin Shlichus, and a gentile does not have Din Shlichus. [Admur 448:11]

Kinyan Sudar: It is debated in Poskim as to whether this is a valid form of acquisition with a gentile, and the final ruling of Admur and other Poskim is that it is invalid. [See Shach C.M. 123:30; Admur Kuntrus Acharon 441:3; Piskei Dinim 448 p. 32; Sheiris Yehudah 11; Shaar Hakolel 32]

[7] See Case 3 regarding the validity of Kinyan Kesef from a Biblical versus Rabbinical perspective

[8] See Sefer Toras Hakinyanim [3 Volumes] in great length for an overview on all Kinyanim and their Halachic status and opinions

[9] Some say three Tefachim, some say one Tefach, and some say any amount. [See Michaber C.M. 198:2; 269:5; Toras Hakinyanim 6:53]

[10] See Michaber C.M. 198:1-2; Sefer Toras Hakinyanim Chapter 6:55

Kinyan Meshicha: The Kinyan of Meshicha which involves the recipient taking the object into his property or into a Simta [joint property, however not public property], is only considered a valid acquisition by Mitaltilin that is uncommon to lift up [i.e. a heavy item, such as a fridge]. [See Michaber 197:1; Rambam Mechira 3:1; Bava Basra 86a; Toras Hakinyanim 6:1, 3, and 46] However, seemingly, even by Mitaltalin that is common to lift it should regardless become his if it was entered into his car or home due to Kinyan Chatzer, and possibly even without Kinyan Chatzer. [See Chasam Sofer Y.D. 310; 315; Toras Hakinyanim ibid footnote 89]

[11] See previous footnote regarding Kinyan Meshicha

[12] See Rama 198:1 “Since he did Hagbah or Meshicha he has acquired even if he did not yet pay”; Alon Hamishpat Vol. 95 6-7 footnotes 14-19 in length that it has the status of Halokeiach Keli Al Means Levakro, however, see there that some argue that he has no intent to purchase prior to payment.

Background – Kinyan Hagbah prior to payment: Regarding if simply lifting the object suffices to be considered a valid acquisition even prior to paying for the object, it is clear that it is considered a valid acquisition. [Rama ibid] However, this only applies if the buyers intent is indeed to purchase it, however, if his intent is not yet to purchase it then his Hagbah means nothing. Accordingly, when shopping for items and placing them in one’s cart or hand, it is disputed amongst today’s Poskim as to the status of acquisition of these items and as to whether we consider it acquired on the status of Halokeiach Keli Al Means Levakro, or not. [See Alon Hamishpat Vol. 95 6-7 footnotes 14-19] Nonetheless, even according to the approach that it is considered his, it has the status of an item that was purchased with intent to evaluate and eventually decide whether to keep or not. In other words, it is as if one purchased it with an inherent refund policy which gives him the ability to go back on the sale, and hence there is no ramification regarding our subject of whether he may go back and return it, as according to all he may. The only ramification would be regarding his level of liability on the product prior to payment. [See regarding “Halokeiach Keli Al Means Levakro: Michaber C.M. 200:11; Smeh 200:29; Tur 200; Nedarim 31a”; Bava Basra 88a; Alon Hamishpat Vol. 95] However, once he pays for the product and does Meshicha or Hagbah, then it is considered fully his and it is illegal for him to go back on the sale absent of a refund policy of the store or state.

[13] See Michaber C.M. 200:11; Smeh 200:29; Tur 200; Nedarim 31a regarding “Halokeiach Keli Al Means Levakro”; Bava Basra 88a; Alon Hamishpat Vol. 95

[14] See Michaber C.M. Chapters 227-234 regarding general law of Mekach Taus and Onah; Encyclopedia Talmudit Erech Onah

[15] May the perpetrator [i.e. Mianeh] retract from the sale? The party who did the wrong may not retract from the sale if the victim [i.e. Misaneh] consents to go through with the sale regardless, either verbally or through silence. However, if the victim does not give his consent to go through with the sale in the above manner, then it is disputed as to whether the perpetrator may on his own decide to nullify the sale. [Michaber 227:4 rules he may not, as Lo Yihyeh Choteh Niskar; Rama ibid rules he may because the sale is invalid; See Smeh 227:6-8]

[16] See Smeh 227:8

[17] See Michaber C.M. 228-234

[18] See Michaber C.M. 227:4; See also Admur C.M. Hilchos Onah

[19] A refund policy in essence makes the purchase of the product defined as “Halokeiach Keli Al Means Levakro” by which we rule that one may return it. See Michaber C.M. 200:11; Smeh 200:29; Tur 200; Nedarim 31a”; Bava Basra 88a; Alon Hamishpat Vol. 95

[20] https://www.gov.il/BlobFolder/generalpage/general_tuota/he/EN_Brushur_SITE.PDF

[21] See Michaber 232:6 that we follow the Minhag Hamedina regarding the definition of a Mum, and Michaber 232:19 that the Minhag is not to accept returns on eggs, and Minhag Mivatel Halacha! See Aruch Hashulchan 232:7 and 30