1 Elon, M., “The Sources and Nature of Jewish Law and its Application in the State of Israel” (1967) 2 Is.L.R. 515Google Scholar, (1968) 3 Is.L.R. 88, 416, (1969) 4 Is.L.R. 80; Elon, , “Mishpat Ivri”, Encyclopedia Judaica (1971) vol. 12, p. 109Google Scholar; Gulak, , Yesodei Hamishpat Haivri (2nd ed., 1967) vol. 1, pp. 3–31Google Scholar; Gulak, op. cit., vol. 4, pp. 3–45; Herzog, , Main Institutions of Jewish Law (2nd ed., 1965) vol. 1, pp. 1–40Google Scholar; Tzuri, , Mishpat HaTalmud (1921) vol. 1, Preface.Google Scholar

2 The Babylonian Talmud was written in approximately 500 C.E. The Jerusalem Talmud dates from 400 C.E. Both consist of the Mishnah, written by Rabbi Judah the Prince in approximately 200 C.E., which consists of brief and terse statements of rules, principles and laws applicable to all areas of life, and the Gemarah, or exposition, discussion and analysis of the matters set forth in the Mishnah.

3 This literature consists of opinions by legal authorities pursuant to requests by individuals or groups with respect to legal, moral or ethical questions. These opinions, which were usually written, had no binding authority, for the most part, and depended for their authority on the willingness of the parties to accede tothe decision or opinion. See Elon, (1967) 2 Is.L.R. 515, 523–524, 562–565.Google Scholar

4 See Elon, supra n. 3 at pp. 548–550.

5 See Elon, supra n. 3 at p. 564 for further discussion of the various codes and at pp. 549–550 for discussion of whether. in the event of inconsistency, a decision in a Code or in a Responsum is entitled to greater weight.

6 Mishneh Torah, Moses Ben Maimon, 1135–1204 C.E.

7 Tur, Jacob ben Asher, 1269–1340 C.E.

8 Schulchan Aruch, Joseph ben Ephraim Karo, 1488–1575 C.E.

9 “Sec. 1–203. Obligation of Good Faith. Every contract or duty within this Act imposes an obligation of good faith in its performance or enforcement”. “Good Faith” has been defined in sec. 2–103(1)(b) of the Uniform Commercial Code: “‘Good Faith’ in the case of a merchant means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade”. See also Sales Law (1968) 22 L.S.I. 107. Sec. 6 reads as follows: “Any obligation or right arising from a contract of sale shall be fulfilled or exercised in the usual manner and in good faith”.

10 Leviticus, 25:14.

11 Maimonides, Law of Sales, ch. 18, sec. 1 (Vilna ed., 1900); Cf., Sale Law (supra n. 6) sec. 16 which reads as follows: Where the non-conformity arises out of facts which the seller knew or ought to have known at the time the contract was concluded and which he did not disclose to the buyer, the buyer shall be entitled to rely on it notwithstanding the provisions of secs. 14 and 15 or of any agreement, provided that he gives to the seller notice of it immediately upon discovering it.

12 18 Babylonian Talmud, Hulin, p. 187 (Otzar Hasefarim ed., 1964); Maimonides, ibid., at sec. 3. Thus, although the requirement of “good faith” may be strikingly novel in Israel jurisprudence, as stated by Aronovsky, M. “Comments on the New Law of Sales” (1969) 4 Is.L.R. 141, 144Google Scholar, it is certainly far from novel in Jewish jurisprudence. For further discussion of “good faith” requirement in Jewish Sales Law, see Rabinovitz-Teomim, , Hukat Mishpat (Jerusalem, 1957, in Hebrew) 141–143Google Scholar; Rakover, , Consumer Protection in Jewish Law, Publication of Ministry of Justice, No. 16 (Jerusalem, 1971, in Hebrew) 15–18.Google Scholar

13 Text supra at n. 10.

14 13 Babylonian Talmud, Baba Metzia, p. 100. [See Sperber, D., “Laesio Enormis and the Talmudic Law of Ona'ah (1973) 8 Is.L.R. 254 (Ed.)].Google Scholar

15 For further analysis of these rules see, Herzog, op. cit. supra n. 1, vol. 2, pp. 121–124; Horowitz, , Spirit of Jewish Law (1953) sec. 202, p. 367Google Scholar; Rabinovitz-Teomim, supra n. 12 at pp. 113–140; Rakover, supra n. 12 at pp. 7–11; Shilo, S., “Ona'ah” Encyclopedia Judaica, vol. 12, pp. 1391–1395Google Scholar; Gulak, op. cit. supra n. 1 at pp. 64–66.

16 “Sec. 2–302. Unconscionable Contract or Clause.

(1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may limit the application of any unconscionable clause as to avoid any unconscionable result”.

17 Uniform Commercial Code, sec. 2–302, Comment 1.

18 Note, “Unconscionable Contracts Under the Uniform Commercial Code” (1961) 109 U. Pa. L.R. 401, 404; Honnold, , Law of Sales and Sales Financing (3rd ed., 1968) 27–29.Google Scholar

19 Ibid.

20 Maimonides, Law of Sales ch. 15, sec. 6.

21 Ibid. For contrary views and further discussion of this concept in the context of disclaimers and waiver of warranties, see text infra at n. 174.

22 Text supra at n. 17.

23 See Herzog, op. cit. supra n. 1, vol. 2, pp. 120, 125–126; Gulak, op. cit. supra n. 1, vol. 1, pp. 63–64 and vol. 2, p. 156; Albeck, Sh., “Sale” Encyclopedia Judaica, vol. 12, pp. 675–680Google Scholar and “Mistake” Encyclopedia Judaica, vol. 12, pp. 158–159.

24 14 Babylonian Talmud, Baba Bathra, p. 166.

25 E.g., where wheat was represented to be of good quality by the seller and proved to be of inferior quality, or vice versa.

26 Compare, the Common law rule that whenever the quality of goods is mutually assumed as a material factor in the bargain, and the goods are not of such quality, there may be a mutual mistake of a material fact, excusing the seller from liability and justifying the buyer in rescinding the transaction. Williston on Contracts vol. 13 (3rd ed., 1970) sec. 1563.

27 E.g., sycamore wood for olive wood; vinegar for wine; white wheat for red.

28 Whether the sale is actually “void” or is merely “voidable” at the instance of either party, unlike a discrepancy in quality, is an open question. See Rabinovitz-Teomim, op. cit. supra n. 12 at p. 84, Biurim, n. 4. A practical distinction under Jewish law between a “void” transaction and one merely “voidable” would be whether a new act of dominion or “kinyan” would be necessary with respect to the goods, which act of dominion or “kinyan” is an essential element of transfer of ownership under Jewish law.

29 Compare the Common law rule that where the parties are mutually mistaken as to the identity of the subject matter of the contract there is no sale. Williston on Contracts vol. 13, secs. 1570–1570A. That author points out that where a mistake as to the quantity, quality or characteristics of the subject matter of the bargain is due to a mutual mistake regarding some means or measure which the parties took for fixing the quantity, quality or value of the performance rendered by one party, rescission may be had by the party harmed by the erroneous assumption. But where the difference between the supposed quality or nature of the goods is so extreme as to amount to a discrepancy in identity, there may be no sale.

30 Meir Halevi Abulafia, 1170–1244 (Ramah) cited by Rabinovitz-Teomim, , supra n. 12 at p. 84Google Scholar, Biurim, n. 1 and at p. 89, Biurim, n. 27.

31 Joseph Habiba, 15th Century (Nimukay Yosef) on Alfasi, Baba Bathra, ch. 5, p. 82. This view proceeds on the theory that in cases of variation of identity, “…if this one [the buyer] did not buy this object, the sale of this one [the seller] is no sale”. Where, however, there was no mistake at all, and both seller and buyer were aware of the discrepancy, it would appear that the transaction stands. See Moses Isserles, 1525–1572 (Ramah), Shulchan Aruch, Hoshen Mishpat, ch. 232, sec. 7: Baba Bathra, pp. 211–212.

32 So that the principle of “Ona'ath Mekach” (text supra at n. 14) was not invoked. See Meir Hacohen, Hagaoth Maimunith on Maimonides, Law of Sales, ch. 17 sec. 1; Joseph Karo, 1488–1575 (Beit Yosef) on Tur, Hoshen Mishpat, ch. 233.

33 Isserles, Shulchan Aruch, Hoshen Mishpat, ch. 233, sec. 1, following view of Mordechai Ben Hillel, 1240–1298 (Mordechai), Baba Bathra, sec. 563.

34 Shabbethai Ben Meir Hacohen, 1621–1662 (Shakh), on Shulchan Aruch, Hoshen Mishpat, ch. 233, sec. 1. See also Zechariah Mendel Ben Aryeh Leib Beiz (Ba'er Heitev), on Shulchan Aruch, Hoshen Mishpat, ch. 233, sec. 1, subd. 4, for further discussion of this view. The latter would distinguish a situation in which a vessel or an object of impure silver was represented as pure silver, as to which the buyer could avoid the sale, from the sale of impure silver itself as pure silver. In the latter case, according to this view, the buyer has received what he has bargained for, since “Ona'ath Mekach” is not involved. The expense of purifying the impure silver would apparently be the seller's under this view. See Herzog (supra n.1) vol. 2, p. 127, who states that the issue is whether representation of silver as refined is a condition or merely a warranty.

35 Ephraim Ben Jacob Hacohen, 1616–1678 (Sha'ar Efraim), sec. 161, cited by Judah Rosanes, 1657–1729 (Mishneh la-melekh), on Maimonides, Law of Sales, ch. 17, sec. 1.

36 Judah Rosanes, supra n. 35.

37 Israel Isserlein, 1390–1460 (Terumat Ha-Deshen) sec. 322, cited and followed by Karo (Beit Yosef) on Tur, Hoshen Mishpat, sec. 233, “unless it was known that the purchaser was the type of person who did not eat of meat from a non-castrated goat, and the same rule applies to the purchase of other foodstuffs on the assumption that they are of one type and they are found to be of another type”. See also to the same effect Isserles, Shulchan Aruch, Hoshen Mishpat, ch. 233, sec. 1.

38 Rabinovitz-Teomim, supra n. 12 at pp. 86–87, Biurim n. 16.

39 Joel Sirkes, 1561–1640 (Bayit Hadash) on Tur, Hoshen Mishpat, ch. 233, sec. 1.

40 6 Babylonian Talmud, Bezah, pp. 12–13. “Laid” eggs were thought to be capable of incubation and hatching, unlike “unlaid” eggs.

41 Ibid.

42 As distinguished from breeding purposes, as to which there was thought to be a difference in quality between “laid” and “unlaid” eggs, see supra n. 40.

43 The seller would still have to return the difference in price, if any, to the buyer, even under this view, but the sale would stand.

44 Bezah, supra n. 40.

45 Nissim Ben Reuben Gerondi, 1340–1380 (Ran) on Alfasi, Kidushin p. 34; Joel Sirkes, on Tur, Hoshen Mishpat, ch. 233, sec. 1.

46 Text supra at n. 24.

47 Ibid.

48 Supra n. 45. Under this textual variant, the entire discussion as to the purpose for which the eggs were bought was eliminated, thereby avoiding any inconsistency between the two sources. Under the variant reading, the buyer after purchasing the eggs attempted to hatch them by placing them under a chicken and failed. The issue presented then became whether the buyer, if he purchased the same for eating purposes, should be permitted to avoid the transaction on the ground of a variance in quality, where he caused the eggs to be destroyed by attempting to hatch them. The rejoinder is that in fact he purchased them for breeding purposes and was justified in attempting to hatch them.

49 Solomon ben Isaac, 1040–1105 (Rashi) on Bezah, supra n. 40 at p. 13.

50 Compare, Uniform Commercial Code, sec. 2–313:

(1) Express warranties by the seller are created as follows:

(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.

51 Text supra at n. 33.

52 Text supra at n. 37.

53 Text supra at n. 49.

54 Text supra at n. 34 (impure silver); text supra at n. 39 (castrated goat); text supra at n. 45 (eggs).

55 Compare, Uniform Commercial Code, sec. 2–313, Comment 8:

Concerning affirmations of value or a seller's opinion or commendation under subsection (2), the basic question remains the same: what statements of the seller have in the circumstances and in objective judgment become part of the basis of the bargain? As indicated above, all of the statements of the seller do so unless good reason is shown to the contrary.

56 Text supra at nn. 14–15.

57 11 Babylonian Talmud, Kidushin, p. 84; 13 Babylonian Talmud, Baba Metzia, p. 112; Baba Bathra, p. 179.

58 Williston on Contracts, supra n. 29.

59 Ibid. Compare approach under Israeli law, where issue is presented in terms of whether the seller has fulfilled his obligations under the contract. Law of Sale, sec. 11 (22 L.S.I. 108) reads as follows:

The seller has not fulfilled his obligations, if he has delivered —

(1) a part only of the thing sold or a quantity greater or smaller than that agreed upon.

60 Text supra at n. 57.

61 Solomon ben Abraham Adret, 1235–1310, Chiddushai Rashba, Kidushin (Waxmen, and Reinmen, , eds. 1952) vol. 2, p. 156.Google Scholar

62 E.g., where either more or less than the bargained for quantity is sold, Nissim ben Reuben Gerondi, supra n. 45.

63 Nissim ben Reuben Gerondi, loc. cit.; Maimonides, Law of Sales, ch. 15, secs. 1–2. If the seller refuses to cure the discrepancy, the buyer can of course deduct the value of the same from the price.

64 E.g., where a field of particular dimension was bargained for, the field was smaller than represented and the seller had no adjacent property from which he could make good the discrepancy. See Nissim ben Reuben Gerondi, supra n. 45, for extensive discussion of this point. That authority states:

“Although it was stated that a discrepancy in quantity may be remedied, such is true only as to a discrepancy in amount, so that when remedied the purchaser has all that he intended to purchase. However, one who intended to buy a small quantity of a high-quality item cannot be forced by the seller to accept a greater amount of inferior quality of that same item in lieu thereof, or to accept a rebate in money”.

See also, Gulak, op. cit. supra n. 1, vol. 1, p. 64; Herzog, op. cit. supra n. 1, vol. 2, p. 126.

65 Samuel ben Meir, 1080–1174 (Rashbam) Baba Bathra, p. 206; Abraham ben David of Posquieres, 1125–1198 (Ravad), on Maimonides, Law of Sales, ch. 15, sec. 2; Isaac, Solomon ben, on Alfasi, Baba Bathra, ch. 7, p. 99.Google Scholar See Elijah of Vilna, 1720–1797 (Biur Hagrah) on Shulchan Aruch, Hoshen Mishpat, ch. 232, sec. 1.

66 Compare, Uniform Commercial Code, supra n. 50.

67 Joel Sirkes, supra n. 39, on Tur, Hoshen Mishpat, ch. 232, sec. 4. In attempting to explain Ravad's view (text supra at n. 65), Sirkes states that such view applies: only in situationswherein the buyer can establish a plausible reason [for rescinding], such as that he needed a given quantity [of an item] at a given time, and has no later use for the same. And the buyer can contend that he would not have purchased it if he had known that the seller would make an attempt to remedy the deficiency of the item in quantity and that he would have to wait for the seller so to do, since he has no further use for [the item].

Others attempt to reconcile the Ravad's view with the view presented in the text supra at n. 63. Karo (Beit Yosef) on Tur, Hoshen Mishpat, ch. 232, sec. 3; Joshua ben Alexander Falk, 1550–1614 (Prisha-Drisha) on Tur, Hoshen Mishpat, ch. 232, sec. 3. However, a reading of Ravad's view would indicate that he adheres to the view referred to in text supra at n. 65. See to this effect, Elijah of Vilna, supra n. 65.

68 Sec. 2–313(1)(c).

69 Rabinovitz-Teomim, op. cit. supra n. 12 at p. 87.

70 Isserles, Shulchan Aruch, Hoshen Mishpat, ch. 232, sec. 18; Mordechai Ben Hillel, supra n. 33.

71 Isaac ben Jacob Hacohen Aliasi, 1013–1103, Alfasi on Baba Metzia, ch. 4, p. 60; Maimonides, Law of Sales, ch. 15, sec. 3; see also, Rakover, supra n. 15 at p. 9.

72 Maimonides, ibid., sec. 5. Compare, Uniform Commercial Code, sec. 2–314(3) “Unless excluded or modified (section 2–316) other implied warranties may arise from course of dealing or usage of trade”. See Gulak, op. cit. supra n. 1, vol. 1, p. 63; Herzog, op. cit. supra n. 1, vol. 2, p. 124.

73 Secs. 2–314(2)(b), (d).

74 E.g., in sale of oil, one and one-half “log” (liquid measure equalling six eggs) of sediment in sale of 100 “log”; in sale of wheat, a quarter of beans to every “siah” (liquid or dry measure); Maimonides, Law of Sales, ch. 18, secs. 9–11. For rules relating to permitted variations in sales of wine see Maimonides Law of Sales, ch. 17, secs. 7–8; in sales of wood, Maimonides, ibid., at sec. 9; in sales of beer, Tur, Hoshen Mishpat, ch. 230, sec. 7.

75 Maimonides, Law of Sales, ch. 18, sec. 12; Gulak, vol. 1, p. 63.

76 Maimonides, Law of Sales, ch. 15, sec. 3; Herzog, vol. 2, pp. 124, 127–8; Albeck, “Mistake” supra n. 23 at p. 159.

77 Maggid Mishnah on Maimonides (14th century), ibid. For contrary views see, Rabinovitz-Teomim, supra n. 12 at pp. 91–93; Rosanes, on Maimonides, Law of Sales, ibid.

78 Jacob ben Jacob Moses Lorbeerbaum, 1760–1832 (Netivot-Hamishpat Chidu-shim) on Shulchan Aruch, Hoshen Mishpat, ch. 232, sec. 3, subd. 5.

79 Judah Rosanes, supra n. 77.

80 Text supra at n. 77.

81 “When the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him …”

82 Uniform Commercial Code, sec. 2–316(3)(b), Comment 8.

83 Ibid.

84 Supra n. 82; Rabinovitz-Teomim, op. cit. supra n. 12 at p. 92, Biurim, n. 10.

85 Tur, Hoshen Mishpat, ch. 232, sec. 4.

86 Ibid.

87 Supra n. 85.

88 Asher ben Yechiel, 1250–1327 (Rosh) Responsa, sec. 96, subd. 7, p. 178. Compare the rule under the Uniform Vendor and Purchaser Risk Act, sec. 1, that where legal title or possession has not been transferred in the sale of a building and an immaterial portion thereof is destroyed, the vendor is entitled to specific performance; the purchaser, being entitled to deduct from the agreed price, the value of the immaterial part destroyed or taken. Also, compare Uniform Commercial Code, secs. 2–508, “Cure by Seller of Improper Tender of Delivery; Replacement”.

89 Joshua Ben Alexander Falk (Prisha), on Tur, Hoshen Mishpat, ch. 232, sec. 5.

90 Joel Sirkes (Bayit Hadash), on Tur, Hoshen Mishpat, ch. 232, sec. 4.

91 Rabinovitz-Teomim, supra n. 12 at p. 96, M'Koroth n. 11 and Biurim, nn. 27–31. Compare the rule under sec. 1 of the Uniform Vendor and Purchaser Risk Act, that where a material part of the property is destroyed, the vendor cannot enforce the contract, and the buyer may recover any payments made.

92 Rabinovitz-Teomim, ibid.; Herzog, vol. 2, p. 244.

93 Rabinovitz-Teomim, ibid.; Gulak (vol. 1, p. 64) thus puts the matter too broadly when he states that where the defect is remediable the transaction stands with a rebate in the price.

94 See discussion in text supra at nn. 77–84.

95 And thus unfit for consumption under Jewish Dietary Law.

96 18 Babylonian Talmud, Hulin, pp. 100–101; 8 Babylonian Talmud, Ketuboth, p. 152; Gulak, vol. 1, p. 63; Albeck, “Mistake” supra n. 23 at p. 159. However, Albeck's characterization of an ox without molars as a latent defect is not entirely accurate. See infra n. 165.

97 Shulchan Aruch, Hoshen Mishpat, ch. 232, secs. 11, 23.

98 14 Babylonian Talmud, Baba Bathra, pp. 183–184; Shulchan Aruch, ibid.

99 Moses ben Nachman, 1195–1270 (Ramban) cited by Asher ben Yechiel on Babylonian Talmud, Hulin, ch. 3, sec. 34, p. 317; see also by implication to the same effect, Maimonides, Law of Sales, ch. 16, sec. 6.

100 Ibid.

101 Asher ben Yechiel, supra n. 99 and authorities cited.

102 Asher ben Yechiel, ibid. distinguishes the case of the “unruly ox” from that of the common defect generally as follows: “And the proof brought by (Moses ben Nachman) from the case of the [unruly] ox … is no proof. For that situation is distinguishable in that the seller was aware of the defects in the ox … and on this the buyer relied, and did not make the sale conditional for he assumedthat the seller would not deceive him. But, in a transaction wherein both the seller and the buyer are equally ignorant of the true nature of the item sold, the buyer should have expressly conditioned the sale with respect to prevalent defects. Since he didn't so condition the sale, he waived his rights as to any such defects, and he must have concluded the transaction as do all purchasers of cattle, who do not refrain from purchasing the cattle because of the possibility that they may be ritually unfit for consumption”.

See Shulchan Aruch, Hoshen Mishpat, ch. 232, sec. 12, wherein is presented views of both Nachmanides and Maimonides, discussed in text supra at n. 99, and that of Asher ben Yechiel, discussed in this note. See also Isserles, at Shulchan Aruch, ibid., who follows the view of Asher ben Yechiel.

103 Asher ben Yechiel, Responsa, sec. 102, subd's 8–9, “even if the seller was ignorant of the defect the sale is void, and even if he purchased them thus, and was also deceived, he gains therebyno right to deceive others”.

104 With respect to whether the buyer or seller has the burden of proof on this issue see text infra at nn. 137–156.

105 Boaz, Joshua (Shiltei Hagiborim), on Alfasi, Baba Metzia, ch. 4, p. 60.Google Scholar See also view of Joel Sirkes, Tur, Hoshen Mishpat, ch. 230, sec. 7, who attempts to reconcile views of Asher ben Yechiel on grounds that items such as eggs or cheese were never attended by any presumption of wholesomeness (“cheskat g'vinah tovah”) unlike an animal, which during its lifetime is attended by such presumption (“cheskat Kashruth”). For further discussion of this point see infra n. 150.

106 Shulchan Aruch, Hoshen Mishpat, ch. 232, sec. 19.

107 Abraham Eisenstadt, 1812–1868 (Pithei Teshuvah) on Shulchan Aruch, Hoshen Mishpat, ch. 232, sec. 11, subd. 6. The author, in commenting upon the rule that a latent defect rendering an animal unkosher gives rise to a right of rescission (text supra at nn. 99–102) states: “It appears that such is not the custom at present, and therefore the custom abrogates the Law, as in the case with spoiled eggs, sec. 19 infra, and it would be well to investigate if such is in fact the custom. And this also applies to other items which are customarily sold closed and sealed as they are, e.g., boxes with glass sides [to see through] or Ethrog boxes and the like; the Court in the locality should investigate if such is in fact the custom”. Compare, Uniform Commercial Code, sec. 2–316(3)(c): “an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade”.

108 Ibid.

109 Text supra at nn. 99–102.

110 Shulchan Aruch, supra n. 106. For further discussion see Elon (1967) 2 Is.L.R. 515, 547–548; “Minhag” Encyclopedia Judaica, vol. 12, pp. 4–26.

111 Supra n. 4.

112 Babylonian Talmud, Baba Bathra, p. 183.

113 Id. at 183–184.

114 For further discussion of this point in the context of burden of proof see text infra at nn. 151–156.

115 Supra n. 112 at pp. 183, 186.

116 Maimonides, Law of Sales, ch. 16, sec. 2.

117 Supra n. 112, as where buyer was a farmer and seller thus had reason to know that seeds were bought for sowing purposes. See case of sale of “unruly ox”, text supra at n. 98, where sale is void at instance of buyer if seller had reason to know that ox was purchased for agricultural use, rather than for eating purposes.

118 It would have to be shown of course, that the failure of seeds to sprout resulted from a defect therein, rather than from weather or soil conditions or seasonal variations. Maimonides, supra n. 116 at sec. 1.

119 Maimonides, supra n. 116.

120 Text supra at nn. 24–29.

121 See Rabinowitz, , Jewish Law (New York, 1956) 176–177Google Scholar, for discussion of original meaning of term “Achrayoot” as connoting “standing back of, security” and development of secondary meaning of responsibility for loss, or risk of loss. It is clearly the latter meaning which is applicable herein. It is also interesting to note that Gulak in discussing the rules applicable to mistake generally uses the terminology of “Mekach Ta'oot”, except with respect to the sale of goods for a specific purpose, such as seeds for planting, as to which he borrows the Talmudic terminology and states that the seller has an “Achrayoot” to provide goods fit for that purpose. Gulak, vol. 1, p. 63.

122 I.e., return of purchase price and possible payment of consequential damages to the buyer. See text infra at sec. H.

123 Text supra at nn. 95–97.

124 Joshua ben Alexander Falk (Sefer Me'irat Einayim) on Shulchan Aruch, Hoshen Mishpat, ch. 232, sec. 20, subd. 46.

125 Text infra at n. 189; Gulak, vol. 1, p. 64.

126 Uniform Sales Act, sec. 15(2); Uniform Commercial Code, sec. 2–314.

127 Compare, Uniform Commercial Code, sec. 2–314(2)(c) with rules and cases set forth in text supra at nn. 74–75, with respect to permitted variations in goods sold, and supra at nn. 112–114, 115, 118–119, with respect to the sale of seed.

128 Compare, Uniform Sales Act, sec. 15(1) and Uniform Commercial Code, sec. 2–315 with cases discussed in text supra at nn. 95–97 (animal unfit for consumption), at n. 98 (“unruly ox”), at n. 103 (foodstuffs), at nn. 116–119 (seed).

129 Text supra at nn. 95–97, 103–104, 118–119. Compare, Vlases v. Montgomery Ward and Co., 377 F. 2d 846 (3d Cir. 1967) (action for breach of warranty will lie under Uniform Commercial Code even where seller unable to discover defect in goods or cure damage if it could be ascertained). See also, Q. Vandenberg and Sons v. Siter, 204 A. 2d 494 (Pa. Super. 1964).

130 Text supra at nn. 99–102. Compare, Webster v. Blue Ship Tea Room, 198 N.E. 2d 309 (Mass. 1964) (fish bone lurking in fish chowder did not constitute breach of warranty under Uniform Commercial Code, since occasional presence of fish bones in chowder is to be anticipated).

131 Sec. 2–315.

132 Sec. 15(1).

133 Text supra at nn. 98, 105, 116–119. See also, rule applicable in those localities wherein any potential reliance is apparently effectively negated by local trade usage or custom, text supra at nn. 106–110.

134 Uniform Commercial Code, sec. 2–315; Babylonian Talmud, Baba Bathra, pp. 183–184; Maimonides, Law of Sales, ch. 16, sec. 5; Shulchan Aruch, Hoshen Mishpat, ch. 232, sec. 23, “And if the buyer does not usually purchase except for agricultural purposes and the seller is aware of that, the sale is void”. For further discussion see text infra at n. 141. See also, New York Annotations to Uniform Commercial Code, sec. 2–315.

135 Sec. 15(1).

136 E.g., Chamberlain v. Bob Matiek Chevrolet Inc., 239 A. 2d 42 (Conn, Cir. 1967); Whiting Corp. v. Process Engineering Inc., 273 F. 2d 742 (5th Cir. 1960) (action by buyer for breach of warranty arising out of order for rectangular expansion joints to be designed and manufactured by seller. Held, under Mass, law buyer had burden of proving cause of failure of joints); Vlases v. Montgomery Ward and Co., supra n. 129. See Uniform Commercial Code, secs. 2–314, Comment 13. But see infra n. 146, for discussion of scope and effect of Uniform Commercial Code, sec. 2–607(4).

137 12 Babylonian Talmud, Baba Kama, p. 91; Babylonian Talmud, Baba Metzia, p. 4; Gulak, vol. 4, pp. 111–112; Herzog, vol. 4, p. 233.

138 Babylonian Talmud, Ketuboth, p. 152, discussed in text supra at n. 96.

139 Text supra at n. 98.

140 Babylonian Talmud, Baba Bathra, pp. 183–184; Babylonian Talmud, Baba Kama, pp. 91–92; see generally, Elon, , “Mishpat Ivri”, Encyclopedia Judaica, vol. 12, pp. 110, 112.Google Scholar

141 E.g., farmer as opposed to ritual slaughterer or butcher. Babylonian Talmud, Baba Bathra, supra n. 140.

142 Text supra at nn. 98, 117–119.

143 Supra n. 138.

144 See text supra at nn. 95–97.

145 Supra n. 138; Maimonides, Law of Sales, ch. 20, secs. 14–15. See extensive discussion in Herzog, vol. 1, pp. 236–245. The rationale given by that authority for this rule is that the moment the buyer “took possession of the beast, the law could not but presume the title to it to have become vested in him, and, consequently it presumed his liability for the price thereof; to rid himself of that liability he must prove that presumption to have been ab initio wrong, that is the onus falls upon him (ibid., at p. 240)”. See also Gulak, vol. 4, p. 100, n. 10. The latter, although not explicitly so stating, would apparently interpret this rule stated in text as applying when a presumption of wholesomeness (Cheskat Haguf) existed with respect to the item sold, as in cases of sale of an apparently healthy animal. It is then presumed that the defect did not arise until immediately prior to discovery, at which time the animal was in the buyer's possession. He would, therefore, have the burden of rebutting that presumption and proving that the defect preceded the sale. For similar views and further discussion see supra n. 105 and infra n. 150.

146 Ibid. Compare, Uniform Commercial Code, sec. 2–607(4). “The burden is on the buyer to establish any breach with respect to the goods accepted”. See Miron v. Yonkers Raceway Inc., 400 F. 2d 112 (2d Cir. 1968). The latter case involved the sale of a racehorse and was an action by seller to recover the price. The basic issue presented was whether the horse was sound at the time of sale. The court pointed out that under the above-cited section of the Code, and under New York law, the allocation of the burden of proof depends upon whether the goods have been accepted or properly rejected. The court stated that where goods are effectively rejected for breach of warranty, the burden of proving that they conform presumably remains upon the seller under the Code, whereas upon acceptance the buyer has the burden to establish any breach. In concluding that the buyer had “accepted” the goods and that the burden of proving breach of warranty was upon him the court said (p. 119): “In this case, the subject of the sale is a racehorse warranted to be sound, and the record clearly shows that an injury such as occurred here, rendering a horse unsound, may be a matter of chance, proof of the exact time of injury being very difficult to make. In these circumstances, the burden of proof on the issue of soundness at the time of sale cannot fairly rest on the seller where the buyer has taken possession of the horse, transported it to his barn, and kept it overnight before discovering the injury and informing the seller of it. We conclude that rejection did not take place within a reasonable time after delivery, and Finkelstein thus accepted the horse. In short, since one of the consequences of acceptance is that the buyer bears the burden of proving any breach, the fairness of allocating the burden one way or the other is relevant in determining whether acceptance has occurred—here, whether rejection took place within a reasonable time”. It is interesting that two such legal systems, disparate in time and place, should have achieved identical results in this instance, albeit by dissimilar routes. Thus, Jewish law, by placing the burden of proof upon the party in whose possession the uncertainty arose, in this instance the buyer, and the Code, achieve a just result by placing the burden of proof on the party generally in the better position to resolve such uncertainty.

147 Mordechai ben Hillel, supra, n. 33, at Babylonian Talmud, Ketuboth, p. 8, ch. 7, sec. 193.

148 Ibid.

149 Asher ben Yechiel, Responsa, sec. 102, subd. 7. This rule as formulated by this authority is that the seller must swear that he delivered clear oil as represented and he may then on that sole basis recover the price. However, if the seller refuses so to swear, the buyer must swear that the seller agreed to sell clear oil and that the unclear oil presently in his possession was that same oil delivered by the seller, and he may then recover the purchase price.

150 Ibid., at subd. 9. The language employed by Asher ben Yechiel on this point is not without ambiguity. With respect to the instance involving the sale of oil, the rule as set forth supra at n. 149, is expressly stated. However, with respect to the case of the sale of cheese, that author merely states that in case of doubt as to whether the defect arose while the cheese was in the possession of the seller or buyer, “the burden of proof is upon the plaintiff”. It is reasonable to assume that the author intended the same rule to be applicable in both the cases of oil or cheese, since it is impossible to distinguish between the two cases. Thus, under this view, the general rule is as stated in text supra at nn. 143–146 for all types of goods, with the exception relating to the oaths of the respective parties, discussed in text supra at n. 147. Boaz, Joshua, Shiltei Hagiborim, on Alfasi, Baba Metzia, p. 60Google Scholar; Moses Rivkes, Be'er Hagolah, on Shulchan Aruch, Hoshen Mishpat, ch. 232, sec. 16, subd. 40; Karo, Beit Yosef, on Tur, Hoshen Mishpat, ch. 232, sec. 13. However, some authorities take the said language of Asher ben Yechiel to hold that in cases of the sales of foodstuffs the burden of proof is always upon the plaintiff. These authorities construe the case involving the sale of oil, which is the subject of the preceeding footnote, in a different manner. They also distinguish the rule applicable in the cases of the sales of foodstuffs from the rule applicable in the cases involving the sale of an animal found to be not kasher (text supra at nn. 143–146) on the basis that in the former situation there is no presumption of whole-someness of the foodstuffs, unlike the sale of an apparently healthy animal, which is attended by that presumption. Thus, where such presumption exists, the buyer always has the burden of proof and must rebut such presumption before he can obtain the return of the purchase price. However, where there is no such presumption, as in the case of foodstuffs generally, the burden of proof remains on the plaintiff. Joshua ben Alexander Falk (Drisha) on Tur, Hoshen Mishpat, ch. 232, sec. 13, and on Shulchan Aruch, Hoshen Mishpat (Sefer Me'ir at Einayim), ch. 232, sec. 16, subd. 35; Joel Sirkes (Bayit Hadash), on Tur, Hoshen Mishpat, eh. 230, sec. 7, and ch. 232, sec. 13. This distinction is apparently predicated upon the theory that defects rendering an animal not kasher are not prevalent, unlike the prevalency of defects in foodstuffs, such as eggs or cheese. See, Rabinovitz-Teomim, op. cit., supra n. 12 at pp. 99–100.

151 Text supra at nn. 139–140. See also, Gulak, vol. 4, p. 100, n. 10.

152 Jacob Lorbeerbaum (Netivot-Biurim) on Shulchan Aruch, Hoshen Mishpat, ch. 232, sec. 23, subd. 12; Abraham Eisenstadt (Pithei Teshuvah) ibid. at subd. 10.

153 Ibid.

154 Text supra at nn. 137–140; Rabinovitz-Teomim op. cit. supra n. 12 at pp. 103–104.

155 Joshua ben Alexander Falk (Prisha) on Tur, Hoshen Mishpat, ch. 232, sec. 21.

156 For criticism and rejection of this view, see Jacob Lorbeerbaum, and Abraham Eisen-stadt, supra n. 152. In my opinion the sounder view is as set forth in text supra at nn. 151–154. See Elijah of Vilna, Biur Hagrah, on Shulchan Aruch, Hoshen Mishpat, ch. 232, sec. 31. See also, Rabinovitz-Teomim, op. cit. supra n. 12 at p. 104; Biurim, n. 67.

157 Law of Sales, ch. 16, secs. 9–10. See, Karo, Cesef Mishnah, ibid.

158 The illustration given by Maimonides for this principle is the case of a buyer who has purchased an ox without molars, and being unaware of the same, allowed the ox to graze with the other cattle, with the result that it died of hunger.

159 Babylonian Talmud, Baba Metzia, p. 84.

160 Supra n. 157 at sec. 11. Maimonides reasons that in this case the buyer brought the damage upon himself by reason of his failure to inspect the ox. If he had done so, says Maimonides, the buyer could have returned the ox to the middleman before it died, and the latter could then have returned it to the original seller. It should be noted that the buyer's failure to inspect the ox did not preclude him from rescinding when he purchased it directly from the seller. It must therefore be concluded that as between a buyer without knowledge and a seller with knowledge of the defect, Maimonides casts the loss on the seller. But, where both the buyer and the middleman are ignorant of the defect, the loss rests upon the party better able to ascertain its existence, i.e., the buyer.

161 Supra n. 159.

162 For further exposition of this point see, Karo, Cesef Mishnah, supra n. 157.

163 Tur, Hoshen Mishpat, ch. 232, sec. 15; Isserles (Ramah), Shulchan Aruch, Hoshen Mishpat, ch. 232, sec. 18, relying on Tur and Asher ben Yechiel. In the case of sale of spoiled eggs the latter holds that the buyer may rescind, even it the seller was unaware of the defect and even if the seller had himself purchased the eggs from another and was deceived thereby, “he may not by reason thereof deceive others”. Responsa, ch. 102, sec. 8.

164 Karo, (Beit Yosef) on Tur, Hoshen Mishpat, ch. 232, sec. 16.

165 That there is merit to this position is indicated by the fact that to illustrate the general rule with respect to non-apparent defects, Maimonides utilizes a case of a defect which could have been discovered by reasonable inspection, rather than a truly latent defect. See supra nn. 158, 160.

166 Mordechai ben Hillel, on Baba Bathra, ch. 5, sec. 563, p. 180, and on Baba Metzia, ch. 3, sec. 291, p. 152.

167 See, Goldberg v. Kollsman Instrument Corp., 12 N.Y. 2d 432, 191 N.E. 2d 81 (1963). See also, Haut, and Alter, , “Blood Transfusions-Strict Liability” (1969) 43 St. John's L.R. 557, 566.Google Scholar

168 Text supra at nn. 77, 80–83.

169 Text supra at n. 76. See also to same effect, Tur, Hoshen Mishpat, ch. 232, sec. 4; Shulchan Aruch, Hoshen Mishpat, ch. 232 sec. 3. For extensive discussion of circumstances wherein some utilization of the item does not amount to a waiver, as where the buyer had to go to considerable expense to hold the goods for the seller, or where the usage was unintentional, or was otherwise made necessary by the circumstances, see Abraham Eisenstadt (Pithei Teshuvah) on Shulchan Aruch, Hoshen Mishpat, ch. 232, sec. 1.

170 Text supra at nn. 20–21.

171 See Rabinovitz-Teomim, op. cit. supra n. 12 at pp. 97–8; Gulak, vol. 1, p. 65; Kirschenbaum, A., “Mehilah”, Encyclopedia Judaica, vol. 11, pp. 1232–1234.Google Scholar

172 Uniform Commercial Code, sec. 2–316 (1).

173 Ibid. at subd. (2).

174 Tur, Hoshen Mishpat, ch. 232, sec. 7.

175 Maimonides, Law of Sales, ch. 15, sec. 4; see text supra at nn. 85–87.

176 Ibid.

177 Elon, , “Contract” Encyclopedia Judaica, vol. 5, pp. 923, 932–933.Google Scholar

178 Although liability did not flow from acts so characterized as “Gerama”, yet the actor was deemed liable according to the “Law of Heaven”. Elon, , “Mishpat Ivri” Encyclopedia Judaica, vol. 12, pp. 109, 113.Google Scholar

179 See, Herzog, vol. 2, pp. 283–286; Gulak, vol. 2, pp. 24, 206–9; Albeck, , “Gerama and Garme” Encyclopedia Judaica, vol. 7, pp. 430–432.Google Scholar

180 View presented by Tosaphoth, , Baba Bathra, p. 44Google Scholar, “The rule of “Garmei”, is punitive in nature. Thus, any injury which was prevalent and usual, was dealt with punitively by the Rabbis; and the reason therefor was that one person should not wilfully injure another”. See, Gulak, vol. 2, p. 209, n. 17; Albeck, ibid.

181 See Palsgraf v. Long Island R. R., 248 N.Y. 339 (1928), “The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within therange of apprehension.” Gulak, vol. 2, p. 208; Albeck supra n. 179; Herzog, vol. 2, p. 283.

182 Maimonides, Law of Torts, ch. 7, secs. 7, 9, 11; Maimonides, Law of Acquisition and Gift, ch. 6, sec. 24; Maimonides, Law of Creditor and Debtor, ch. 18, secs. 3–6. For further exposition of this view, see Epstein, Aruch Hashulchan, Hoshen Mishpat, vol. 8, ch. 386, secs. 1–12.

183 Epstein, ibid. at sec. 4. This is apparently the view of Solomon ben Isaac at Babylonian Talmud, Baba Kama, pp. 52, 110, 195, and also presented by Tosaphoth at Baba Kama, p. 52.

184 As where the buyer purchased seed for planting and in connection therewith incurred expenses for the hiring of labour.

185 Babylonian Talmud, Baba Bathra, pp. 183, 186.

186 Meir, Solomon ben, on Baba Bathra, p. 186Google Scholar; Rabinovitz-Teomim, op. cit supra n. 12 at p. 110, M'Koroth, n. 35, Biurim, n. 98. Even if the seller was aware of the defect at the time of the sale. Hagaoth Maimunith, on Maimonides, Law of Sales, ch. 16, sec. 1. But see infra n. 189.

187 Maimonides, Law of Sales, ch. 16, secs. 1–2; Tur, Hoshen Mishpat, ch. 232, sec. 18; Rabinovitz-Teomim, op. cit supra n. 12 at p. 110.

188 View of Raban Shimon ben Gamliel (2nd cent.), supra at n. 185.

189 Meir Halevi Abulafia, cited by Tur, Hoshen Mishpat, ch. 232, sec 20; Shulchan Aruch, Hoshen Mishpat, ch. 232, sec. 21; Gulak, vol. 1, p. 64. From a reading of Abulafia at Yad Ramah on Baba Bathra, pp. 269–270, it would appear that he would permit the recovery of sowing and labour expenses, in addition to any transportation expenses, where the seller had knowledge of the defect. Others, however, disagree and deny recovery of any expenses. For discussion of both views, see Rabinovitz-Teomim, supra at n. 186. Abulafia's view is apparently predicated upon the theory that the seller's knowledge of the defect casts this situation into the “Garmei” category, discussed in text supra at nn. 178–183. It may be that Abulafia views the controversy between Gamliel and his opponents (text supra at nn. 185–188) as involving a situation wherein the seller was unaware of the defect. Thus, all would agree that recovery of expenses is in order where the seller had knowledge of such defect under the “Garmei” principle. See to this effect, Joshua ben Alexander Falk, (Prisha) on Tur, Hoshen Mishpat, ch. 232, sec. 18; Herzog, vol. 2, p. 285.

190 Supra, nn. 175, 187.

191 Maimonides, Law of Sales, ch. 16, sec. 3.

192 Law of Acquisition and Gift, ch. 6, sec. 24.

193 Supra, n. 185.

194 Supra, nn. 175, 187, 190. See Abraham ben David, supra, n. 192, who makes this point. Yom Tov Vidal of Tolosa, ibid., also points out that Maimonides' permissive ruling also is in contradiction of a “Tosefta” wherein it is ruled that if one bought barrels of wine, which were found to be defective and broke, resulting in spillage and loss of the wine, the seller must reimburse the buyer for the cost of the barrels, but not for the cost of the wine. Tosefta, Baba Bathra, ch. 6, sec. 2.

195 Yom Tov Vidal of Tolosa, supra, n. 192; Herzog, vol. 2, p. 285.

196 Herzog, ibid.

197 Maimonides' view would thus be parallel to the view of Abulafia, discussed supra, n. 189. The only difficulty with this approach is the weighty fact that Maimonides at Law of Sales, ch. 15, sec. 4, and ch. 16, secs. 1–2, limits recovery to return of price and does not distinguish between situations wherein seller had knowledge of defect from situations wherein he had no such knowledge.

198 However, in actions for breach of contract not involving defective goods, the scope of the buyers' remedies for breach of contract has been broadened, based in part of Maimonides' liberal ruling, discussed supra at n. 192. See Herzog, vol. 2, pp. 285–6; Asher ben Yechiel, Responsa, sec. 104, subd. 6; Akiva Eger, Responsa, sec. 134. Under these authorities in cases of breach of contract the party breaching the contract would be liable for the other party's expenses (and perhaps consequential damages) where the same were to be anticipated. Herzog, ibid.; (1957) Piskei Din Rabanim 18, 31–32. See also, Uniform Commercial Code, secs. 2–714 and 2–715, permitting recovery of buyer's incidental and consequential damages. For American cases dealing with issue of recovery of lost profits arising by reason of breach of warranty, see Babcock Poultry Farm, Inc. v. Shook, 203 A. 2d 399 (Pa. Super 1964); Neville Chem. Co. v. Union Carbide Corp., 422 F. 2d 1205 (3d Cir. 1970); Lewis v. Mobil Oil Corp., 438 F. 2d 500 (8th Cir 1971). For recovery of lost profits under Jewish law, see Herzog, vol. 2, pp. 277–282. Elon, M., “Contract”, Encyclopedia Judaica, vol. 5, pp. 923Google Scholar, 932, points out that under Talmudic law a breach of contract rendered a party liable for resulting damage directly suffered by other party, but not for lss of profit. For further discussion of various attempts in the post-Talmudic period to impose liability for lost profits in cases of breach of contract, either on the basis of implied or express agreements of the parties, see Elon, ibid., Herzog, ibid. at pp. 286, 300.

199 For conflicting views in this area see Englard, , “The Problem of Jewish Law in a Jewish State” (1968) 3 Is. L.R. 254CrossRefGoogle Scholar; Elon, (1968) 3 Is. L.R. 80; “Mishpat Ivri”, Encyclopedia Judaica, vol. 12, pp. 109, 149–151.

200 Sale Law (1968) 22 L.S.I. 107, sec. 6.

201 Sec. 16.

202 See Sale Law, secs. 6, 16, and Aronovsky (1969) 4 Is. L.R. 141, 144 and n. 8.

203 Sale Law, sec. 5 (a) and (b).

204 Sec. 11.

205 Secs. 12, 13.

206 Sec. 15.

207 See e.g., Contracts (Remedies for Breach of Contract) Law, 1970 (25 L.S.I. 11). [For further comments on this Law see Shalev, G., “Remedies on Anticipatory Repudiation” (1973) 8 Is. L.R. 123 (Ed.)].Google Scholar