BAIS HAVAAD SEFIRA PROJECT WEEK # 4 MARKETING & DISCLOSURE

(PLEASE LEARN THIS FOR A REFUA SHELAMA FOR THE GEDOLIM Rav Elyashiv -Yosef Sholom ben Chaya Musha, Rav Shteinman - Aaron Yehuda Leib ben Gitel Feiga, Rav Weiss - Yitzchak Tuvia ben Rikal, Rav Belsky - NAME ADDDED Chaim Yisroel ben Chana Tzirtel, Rav Yosef - Yaakov Chai ben Margalit Harav Shlomo Leib Ben Miriam - HaRav Shlomo Brevda Harav Yeshaya Yaakov Ben Raizel - HaRav Yeshaya Yaakov Portugal Harav Meshulem Fish Ben Tziril - The Toshe Rebbe Harav Yitzchok Issac Ben Treina - HaRav Isaav Ausband Rav Yerachmiel Shlomo Hakohen ben Raizel. -Rav Yerachmiel Shlomo Rothenberg, rosh yeshiva of Yeshiva of Mountaindale Rav Shaul ben Pasha-Gavaad Zurich, Switzerland and rav of Beis Medrash Agudas Achim for a refuah shleima b’soch kol cholei am Yisrael.)

~ INTRODUCTION ~ Marketing & Disclosure Caveat Emptor - (Latin: "let the buyer beware"), is an ancient principle in the law of commercial transactions, which effectively means that the buyer purchases at his own risk in the absence of an express warranty in the contract. The only exception was if the seller actively concealed latent defects or otherwise made material misrepresentations amounting to fraud. As a maxim of the early common law, the rule was well suited to buying and selling carried on in the open marketplace or among close neighbors. The increasing complexity of modern commerce has placed the buyer at a disadvantage. He is forced to rely more and more upon the skill, judgment, and honesty of the seller and manufacturer. Many legal systems have recognized this, and modern statutory law of commercial transactions protects the buyer by implying various exceptions to the principle of caveat emptor. In many jurisdictions now, the law requires that goods must be of "merchantable quality". However, this implied warranty can be difficult to define and enforce and may not apply to all products. Halachah has a very different approach. When a sale or similar transaction is made, it is assumed that the goods or services supplied are free of any defects. If a buyer discovers a defect in the goods that he purchased that he was unaware of at the time of sale, he has the right to retrospectively annul the transaction; he can return the goods and get a full refund. This principle is called Mekach Ta'us - a mistaken purchase. Mekach Ta'us is not a penalty imposed upon the seller for misleading the buyer - it is simply a rule that a buyer need not accept a purchase of defective goods. As such, it makes no difference whether the seller deliberately deceived the seller as to the quality of the goods or whether the seller himself was unaware of the default. In all circumstances the seller can return the goods and insist on a refund. There is a further obligation upon the seller not to withhold any information about the goods that the seller might want to know before proceeding with the sale. Deliberately misleading or withholding such information is called Geneivas Da'as. The Hebrew language has many synonyms for wisdom, each with a particular nuance. Da'as is the term used for the human capacity to differentiate between one thing and another, and to choose accordingly. The Havdallah on Motzei Shabbos is inserted into the Brachah of Da'as (in the Shemoneh Esrei) because as Chazal tell us, Im ain De'ah, havdallah menayin - Without Da'as, how can one distinguish between things? (Yerushalmi Berachos 5:2). Thus, explains Rabbi Sholom Kaminetzky, someone who deliberately misleads another is guilty of preventing him, without him even knowing, from using his ability to distinguish between different possibilities and choose for himself. Effectively he has "stolen" his Da'as - hence the term Geneivas Da'as. The prohibition of Geneivas Da'as actually extends even to issues that do not concern the quality of the goods (for example, if a gentile requests kosher meat one may not sell him non-kosher meat, even if there is no difference in quality or price) and even outside the world of commerce. One may not invite a friend for a meal, for example, if one knows in advance that he will refuse and one had no genuine intention to invite him other than to give the impression that one is friendlier than one actually is. In the following series we will look at how the Halachos of Geneivas Da'as and Mekach Ta'us apply to the Torah Jew in his commercial activities of sales, marketing and advertising. (AUDIO) Clear Maare Mekomos with a running English explanation