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Ruling: [We saw last time that the basic requirements for mekach ta’ut (nullifying the sale) exist.]
Does pl lose the right to claim mekach ta’ut because he should have spotted the problem? The Maggid Mishneh (Mechira 15:3) cites an opinion that if the buyer could have checked for the blemish and did not, he cannot claim mekach ta’ut. The S’ma (232:10) cites this opinion and explains that we assume in such a case that he was aware of and not bothered by the blemish and changed his mind later. The Mishneh Lamelech (Mechira 15:3) rejects the possibility that the Rambam and Rif hold this way, and explains that the requirement to check for problems exists only in regard to mispricing, not blemishes.
It is not clear which opinion is accepted (see Nochach Hashulchan, Choshen Mishpat 15). Some say that the requirement to check is only regarding common problems (Chochmat Shlomo 232:3). Others distinguish between a claim of mekach ta’ut before and after the buyer’s using it (Netivot Hamishpat 232:1).
The Israeli Law of Sales (par. 13-15) limits somewhat the buyer’s right to nullify the sale along these lines. This law is the type that is not halachically binding. However, several poskim (including Shut Maharsham V:45) rule that when there is a machloket between halachic opinions on a matter, we can decide the practical ruling based on the local law, and this is even clearer when this conclusion is usually one that does not allow extracting payments. Therefore, we will accept the Magid Mishneh’s opinion limiting the claim of mekach ta’ut when the buyer could have been expected to check. However, according to the Kesef Hakodashim (232:3) if a check would require an outlay of money, it is not considered easily able to be checked.
P'ninat Mishpat (832)
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Therefore, pl has the ability to claim mekach ta’ut. [We will not summarize the discussion on how to compensate for the mekach ta’ut in this case.]
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