Siman 233

One who sells to his fellow one of the species of produce and gave him another species, there is no sale here and both of them may retract, and even if the species he gave him is more expensive than what he sold him. And it is not only necessary to state this regarding a truly different species, such as wheat and barley, but even regarding wheat itself—for example, if he sold him white wheat and it was found to be red, or vice versa, or wine and it was found to be vinegar, or vice versa, or olive wood and it was found to be sycamore, or vice versa—the sale does not take effect upon this at all. However, if he sold him good wheat and it was found to be bad, the buyer may retract even if he was not defrauded in the value of the purchase, for regarding him there is a grievance as if it were a different species, as he may say, "I required good ones and not bad ones, and it is better for me to pay dearly for good ones than to pay cheaply for bad ones." But the seller cannot retract even if the price rose afterwards, since the buyer upholds the purchase. But regarding a different species, both of them may retract, for the name of a sale does not apply to this at all. And similarly vice versa: if he sold him bad ones and they were found to be good, the seller may retract even if he was not defrauded in the value of the purchase, for he can say, "I have no desire to sell the good ones at all." And the buyer cannot retract even if the price fell afterwards, since the seller upholds the purchase.

Regarding beautiful items that were found to be bad, where he was defrauded by a sixth and demands the ona'ah, some say that the seller can also retract. For even though regarding every sixth one acquires and returns the ona'ah, nevertheless here, since regarding the buyer it is a nullification of the sale, therefore according to the one who holds regarding more than a sixth that the defrauder cannot retract when the defrauded party does not demand his ona'ah, but when he demands it the defrauder can also retract, as I wrote in siman 227 section 3, so too here, for this law is exactly equal to more than a sixth according to this opinion. However, according to the opinion explained there that regarding more than a sixth the defrauder can also always retract, this law is not equal to there, for here the defrauder cannot retract, and therefore even in an ona'ah of a sixth where he demands his ona'ah, it is possible that he must return it to him and the sale stands [Netivot HaMishpat]. And regarding ona'ah of more than a sixth, it is obvious that if he demands his ona'ah the defrauder can also retract, for it is no worse than there. And according to the opinion that holds there that the defrauder can also always retract, all the more so here he can retract [Sma]. And regarding ona'ah of less than a sixth, the matter is simple that he cannot demand his ona'ah and it is a waiver as it is there, for either way: if he demands his ona'ah due to the ona'ah of the value of the sale, behold less than a sixth is a waiver; and if he demands it because they were found to be bad, it follows that the seller can also retract as in the case of a sixth itself which was explained according to the first opinion [it appears to me].

If he sold him poor quality goods and they were found to be poor quality, or high quality goods and they were found to be high quality, even though they are not of the highest possible quality and are not of the lowest possible quality, neither of them can retract. Since in the common language of people they are called poor quality or high quality, unless they explicitly stipulated that they be of the highest or lowest possible quality. Therefore, even if there is ona'ah of a sixth, he has acquired it and returns the ona'ah, as in all the laws of ona'ah in siman 227.

That which we have said regarding good quality and they were found to be poor quality, that the buyer can retract, applies specifically to actual good and poor quality that are called good and poor by the world. However, in a matter that the world is not so meticulous about, such as if he sold him meat under the presumption that it is from a castrated ram and it was found not to be castrated, the law of good quality found to be poor quality—which would be a cancellation of the sale—does not apply. Rather, we judge this with the law of ona'ah, for behold, both are good and are of one species, but this one is more expensive than that one. Only in this is there a difference from the rest of the laws of ona'ah: that here, even with an ona'ah of less than a sixth, it is not considered a waiver; rather, he returns the ona'ah to him, since in any event it is not the meat that he specified to him [Terumat HaDeshen], unless it is known that the buyer is an istanis who does not eat non-castrated meat at all, for then he can cancel the sale, and so too in any similar case. However, in this too many disagree and hold that this also is like good quality found to be poor quality, since he explicitly spoke of castrated meat. And so it is with every type of merchandise where they spoke of this merchandise; even if he gave him something similar to it, if it is slightly inferior, he can retract [Bach and the Gra and Netivot HaMishpat and Sha'ar HaMelekh and Be'er HaGolah]. And they wrote that one should rule accordingly. And there is one who wrote that it is a legal doubt, but the halakhah is like the many, and so it stands to reason. And it is obvious that if he bought meat from the flank and he gave him from the shoulder or from the leg, that it is considered exactly one species, and so too in any similar case.

Our teacher, the Rema, wrote: If one sold him silver under the assumption it was refined silver and it was found to be dross silver, the sale stands and he returns the ona'ah to him, for it is all the species of silver. Thus far his words. Many disagree even with this and hold that it is like two species, such as wine that was found to be vinegar; and this is specifically regarding a vessel, but if he bought a piece and tin or dross was found in it, he provides him refined silver from another place.

As is explained in these simanim, there are four divisions regarding ona'ah: ona'ah of price, where in the object itself there was no ona'ah, which depends on a sixth, more than a sixth, and less than a sixth; the second is ona'ah regarding a defect; the third is where they were thought to be of superior quality and were found to be of inferior quality; and the fourth is where it was found to be of a different species. In the first three divisions, only the one who was defrauded can retract and not the defrauder, if the one who was defrauded does not claim his ona'ah. In the fourth, both of them can retract, for it is no transaction at all. And there are those who add yet a fifth division, where even though he did not give him what he sold but rather something of poorer quality than it, and it does not fall under the category of inferior quality, we adjudicate this with the law of ona'ah and not the nullification of the transaction; however, many disagree, as has been written.