Q. A store in our neighborhood advertises: “It's fresh or it's free” – if a customer finds food that is not fresh, the store will give it to him. Is it ethical to make a special search for these items?
A. Let's examine the essence of this generous and unusual store policy.
It is certainly usual for merchants to guarantee, explicitly or implicitly, that their products are fresh. If a customer discovers that merchandise is stale, most stores will readily give a refund or replacement. This policy would be mandated by Jewish law, which states that any fundamental defect in a purchase item voids the sale, since the customer never intended to buy such an item. (1)
However, the store in your neighborhood has gone beyond this mere guarantee, and instead of giving a refund is willing to actually give you the item. From a commercial point of view, there are two good reasons for such a policy:
The main reason is that it allows the consumer to shop worry-free. Most customers don't want to know that if there is any problem it will be taken care of; they want to know that there won't be any problem in the first place. Who has time to go back and get a refund on a pound of tomatoes? The store's magnanimous offer convinces them that they must have taken great care to clear the shelves of any past-due items.
A closely related reason is that enlightened management wants to maintain quality by being informed of any deficiency in service. One excellent way of doing this is to enlist consumers in the cause. Yet the consumer needs to be provided with an incentive to go the bother of reporting a defective item. For most people it's just not worth the trouble. Management will never know of the deficiency, and will never be able to correct it; in the meantime, they are losing business because of resentful consumers. Offering the item free is an effective inducement. This is one reason why manufacturers often send free samples to customers who discover and report on defective merchandise.
Now let's see how your suggestion fits in. Scrounging the store for stale produce is not exactly “worry-free” shopping. The store's policy is meant to let you just pluck items off the shelf without examining them; instead, it's inducing you to invest many times your normal shopping effort in order to obtain a freebie. This was certainly not the owner's intention.
On the other hand, this scrounging does have certain value in bringing the store's attention to problematic merchandise – the second objective of the policy. So if you limit your search to items that are prominently displayed, your actions are not necessarily inspiring and uplifting, but you are within your rights as long as the stated store policy doesn't say otherwise.
However, if your search extends even to hard-to-reach nooks and crannies of the store, you are taking advantage of the store's offer in a rather cynical way. The store is providing worry-free shopping and has made sure that any shopper can just pluck items off the shelf with full confidence in their freshness. They are not failing in their responsibility to customers just because someone who really looks can find past-due items. This is taking improper advantage of the store's enlightened policy.
The only exception is someone who is truly desperate, for example someone from out of town who has run out of money. As longs as these items do fall technically within the store's offer, taking advantage of the offer can be countenanced for someone who has a truly exceptional need. We can learn this from a remarkable passage in the Talmud.
Rav Nachman bar Yitzchak states that all subterfuges of this nature are forbidden except for one. In general, a person may not accept a merchant's offer of a free sample unless he is considering making a purchase. But someone who has lost blood and is in urgent need of fluid, and who doesn't have any money, may accept free samples of drinks from sellers even though he has no intention of buying. (2) Apparently these samples were not explicitly conditioned on intention to buy, presumably because of the same consideration that applies today: the desire to free the consumer of all worry and conditions. Therefore, even though subterfuge is involved in having a free taste when there is no intention to buy, it's permissible in cases of extraordinary need.
1) CM 232:3. (2) Shabbat 129a
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The Jewish Ethicist presents some general principles of Jewish law. For specific questions and direct application, please consult a qualified Rabbi.