Overcharging

From Halachipedia

Cheating a customer or a seller by overcharging is a serious sin. Sometimes the sale is halachically null and void, while in other cases it is still valid.

Prohibition of Overcharging

  1. It is a Torah prohibition to overcharge (as a seller) or underpay (as a buyer) the market value for such an item.[1] This is split into three categories:
    1. More than 16% above market price - this amount is considered more than onaah and the buyer can invalidate the sale.[2]
    2. Exactly 16% above market price - the sale is valid, but the extra money that the buyer paid must be returned.
    3. Within 16% above market price - the sale goes through and the extra money that the buyer paid need not be returned.[3]
  2. If the sale is less than 16% below market price - this is considered more than onaah and the seller can invalidate the sale. Some poskim hold that the buyer may not invalidate the sale,[4] while others hold that the buyer can invalidate the sale as long as the seller has not yet accepted the sale.[5]
  3. It is forbidden to overcharge even less than a 1/6 of the market price initially.[6] After the fact he does not need to return the money.[7]
  4. Some poskim hold that this prohibition only applies to a Jew and it isn't issue of stealing since the non-Jew paid willingly. Only for Jews is it necessary to make sure to charge the market price and not more.[8] However, other poskim hold that it is forbidden to overcharge a non-Jew just like it is forbidden to overcharge a Jew.[9] Everyone agrees that it is forbidden to cheat a non-Jew by misrepresenting the product.[10]
  5. It is only permitted for a buyer who was overcharged to claim repayment for the overpayment until he had enough time to consult a merchant or relative who come evaluate the item.[11] A seller who was underpaid can make this claim forever unless he had enough time to see another item like the one he sold and get it evaluated. If it is a standard item he has as long as it takes to get evaluated.[12]
  6. Onaah is based on the market price at the time of the sale. If the sale was valid and then the market goes up or down that does not invalidate the sale or make it considered onaah.[13]

Nowadays Fluctuating Prices

  1. Nowadays, most items don’t have a set price. Therefore, one would only be allowed to cancel a sale if there is a set price for that item in every store in the area and he was charged more than 16% above that set price.[14]
  2. Some poskim say that items that don’t have a set price don't have onaah,[15] however, other poskim hold that there is onaah on these items.[16]
  3. When there are multiple prices for an item in the market, what is considered the price for purposes of onaah?
    1. Some say that it is defined by the price that majority of sellers (if majority of the sellers agree on one price).[17]
    2. Some suggest that it is the average price between the highest price and lowest price in the market.[18]
  4. When there is no price for an item in the market and he's the first to sell that item, some poskim think that there's no onaah because whatever price the buyer and seller agree upon is its price.[19]

When Onaah Does Not Apply

  1. Somebody who invents something unique, such as if he got a patent, may sell the invention or the copyright for whatever price he wants. However, retail stores which sell that item cannot sell it for more than 16% above what it is sold for in other stores.[20]
  2. If a store which is well known for its high prices because of its high quality, its convenience, or its customer service, charges higher than usual prices, the laws of onaah will not apply.[21]
  3. Onaah doesn’t apply to land. Therefore, if one is buying or renting a house or apartment, we do not cancel the sale if he was charged too much.[22] Nonetheless, it is biblically forbidden to overcharge or underpay for land when the other party is not aware of the true market value of the land.[23]
  4. Onaah applies to all moveable items, even jewelry or a Sefer Torah.[24]
  5. Onaah doesn’t apply to the following items: antiques,[25] investments,[26] and documents.[27] There is onaah on second hand items.[28]
  6. If a homeowner sells his personal items that aren't regularly sold by a homeowner except when he's under pressure, such as jewelry,[29] there is no onaah on that sale. The reason is that the buyer knows that the homeowner is desperate for money and is going to overcharge.[30] This only disqualifies onaah up to 1/6, however, overcharging more than 1/6 in this case would still invalidate the sale. Some disagree with this qualification.[31]

Does Onaah Apply if the Buyer Knows He's Being Overcharged?

  1. If a seller says that he wants the sale to be valid even if he's overcharging and makes a stipulation to that effect, the stipulation is invalid. It is only valid if the seller says explicitly "the item is worth $100 and I'm charging $200 and I want to sell it on condition that you cannot claim onaah." In that case the buyer forgoes the overpayment.[32]

Fair Wages

  1. It is forbidden to knowingly hire a worker for less than the going rate for a worker of the skill set that the worker has.[33]
    1. For example, if a person wants to hire a yeshiva bachur or kollel fellow to learn Torah with his son and he knows the going rate is $30/hr and he hires him for $15/hr, that is onaah and forbidden. If the father knew that the going rate is $30 and the bachur or kollel fellow didn't know the going rate that is forbidden.[33]
    2. For example, if a person wants to hire a high school girl to do babysitting and they know the going rate is $20/hr, they shouldn't hire the girl for $10/hr if she doesn't know the going rate. Doing so is a violation of onaah.[33]
    3. If an employer paid a worker lower than the going rate for that type of work and a worker with his skills, after the fact the employer does not need to pay any extra and the employee has no recourse to claiming that he should be paid more.[34]
  2. There is no halachic obligation to pay living wages (above minimum wage).[35]
  3. A worker can't take outside work without the consent of his employer only if the outside work will cause his productivity at his job to fall below the average productivity of those who have the same job.[36]

Links

Sources

  1. ↑ Vayikra 25:14 states “וכי תמכרו ממכר לעמיתך או קנה מיד עמיתך אל תונו איש את אחיו” “And when you make a sale to your fellow Jew or make a purchase from the hand of your fellow Jew, you shall not wrong one another.” The Rambam in Sefer Hamitzvot Lo Taaseh 250 as well as in Mishne Torah (Mechira 12:1) considers it to be one of the 613 mitzvot. This is also the opinion of the Sefer HaChinuch (Mitzvah 337). The Mishna Bava Metsia 51a says that this prohibition applies both to the buyer or seller. The general prohibition of onaa is codified by Shulchan Aruch C.M 227:1, Kitzur Shulchan Aruch 62:1, Halichot Bein Adam Lachavero 10:30, and Pitchei Choshen Geneva Vihonaa 10:1.
  2. ↑ Whether the seller can invalidate the sale is a dispute between Shulchan Aruch C.M. 227:4 and Rama.
  3. ↑ Gemara Bava Metzia 50b, Shulchan Aruch C.M. 227:2, Halichot Bein Adam Lachavero 10:31. Rambam Mechira 12:3 explains that the reason that the sale is valid if the price is less than 1/6 above market price is because most people willingly forego such a small difference. Rosh Bava Metzia 4:20 writes that it is because it is impossible to be perfectly precise. Although Sefer Hachinuch (Mitzva 337) writes that charging that little above market price is totally permissible, the Ramban in his commentary on the Torah (Vayikra 25:14) writes that one still violates the prohibition even though he need not return the difference. Shulchan Aruch CM 227:6 quotes both opinions without conclusion. Pitchei Choshen Geneva Vihonaa 10:2 also doesn’t rule conclusively but says that a God fearing person should be strict and not do it. Chatom Sofer and Imrei Binah to 227:6 conclude that a person should not charge more than the fair price at all, even less than 1/6. Whether the distinction of 1/6 is rabbinic, see Tosfot (Bava Metsia 52a s.v. ashik) and Rosh (Bava Metsia 4:20 s.v. gufa cited by Tur 227:6) who imply that it is only rabbinic. See Rav Chaim (Mechira 15:1) who implies that it is biblical.
  4. ↑ Shulchan Aruch C.M. 227:4 based on Rambam (Mechira 12:4) and Rivam (Tosfot b"m 50b s.v. ilu)
  5. ↑ Rama C.M. 227:4 based on Rabbenu Yonah b"b 83b and Rosh b"m 5:14
  6. ↑ Shulchan Aruch C.M. 227:6 based on Rosh. Chatom Sofer 227 on Sma 227:14 clarifies that it is forbidden to initially charge less than 1/6. Pitchei Choshen 10:2 agrees. Imrei Baruch 227:6 notes that Ramban Vayikra 25:16 holds that this is a biblical prohibition to charge even less than 1/6 initially. However, Sefer Hachinuch 337 holds that it is permitted.
  7. ↑ Shulchan Aruch C.M. 227:3
  8. ↑ Pitchei Choshen (Onah ch. 10 fnt. 2) quoting Gra 348:2, Sma 231:1, Bach 228, and Kesef Kodshim 382 hold that there's no prohibition to overcharge a non-Jew. Hilchot Honah p. 198, Mishpat Hachoshen (Onah 23:7), Mamon Kasher p. 93, and Darkei Mishpat v. 3 5:4 agree that it is permitted. Mishpat Hachoshen quotes Minchat Pitim 227:6 and Avnei Nezer OC 325 and CM 55 who hold this way.
  9. ↑ Mishkenot Yakov CM 59 s.v. v'od, Rav Hershel Schachter (Hilchos Onaah, min 5-10). Mishpat Hachoshen (Onah 23:7 fnt. 9) quotes Rashash Bechorot 13 as holding that it is forbidden to overcharge a non-Jew.
  10. ↑ Raam 348:2, Pitchei Choshen (Onah 10 fnt. 2), Mamon Kasher p. 93
  11. ↑ Bava Metsia 49b, Shulchan Aruch C.M. 227:7
  12. ↑ Bava Metsia 50b, Shulchan Aruch C.M. 227:8
  13. ↑ Shulchan Aruch C.M. 227:9
  14. ↑ Halichot Bein Adam Lachavero 10:32, Rav Asher Weiss (Kovetz Darkei Horaa Tammuz 5765 2 pg. 124). See Pitchei Choshen Geneva Vihonaa 10:1 who discusses practical applications for nowadays and seems to conclude that one calculates it from the median price in that area.
  15. ↑ Bet Yosef CM 209:1, Rav Asher Weiss (Mishpatei Eretz v. 3 p. 340), Halichot Bein Adam Lachavero 10:47
  16. ↑ Shevet Halevi 5:218. Rav Asher Weiss (Mishpatei Eretz v. 3 p. 340) writes that there's no onaah for items that don't have a fixed market price. He is based on Bet Yosef CM 209:1(2) that there's no onaah for something that doesn't have a known market price. However, Bach 209:1, Darkei Moshe 209:1, Shach 209:1, Drisha (Hagahot Drisha Vprisha 209:1), and Taz 209:1 disagree with Bet Yosef. Shevet Halevi 5:218 follows Bach and others, while Rav Asher Weiss agrees with Bet Yosef. The proof that Rav Asher quoted from Rosh 13:20 for Bet Yosef, Shevet Halevi already explained why it is irrelevant. Rosh says that there's no onaah for a seller's license since its price changes. Rav Asher explains that this is like Bet Yosef's idea that there's no onaah for something with no fixed price. However, Shevet Halevi explains that there's onaah since there's no way to evaluate the price of the license since its value really depends on the income it'll bring in that year, which is an unknown changing quantity.
  17. ↑ Pitchei Choshen (Geneva Vonaah ch. 10 fnt. 1 s.v. v'l'iydach) quoting Imrei Yosher, Rav Zalman Nechemya Goldberg (Mishpatei Aretz v. 3 p. 337)
  18. ↑ Rav Asher Weiss (Mishpatei Aretz v. 3 p. 343)
  19. ↑ Hilchot Mishpat p. 294. Pitchei Choshen (ch. 10 fnt. 25 s.v. bet yosef) implies this as well. He discusses Shach who disagrees with Bet Yosef and holds that there's onaah even if there's no marketplace price. He writes that there doesn't have to be a major established marketplace price, but still there must be a small marketplace price for there to be onaah. This implies that if there's no market price at all there's no onaah.
  20. ↑ Halichot Bein Adam Lachavero 10:36, Hilchot Mishpat pg. 294. This is based on the Rosh BM 4:20 that the whole basis for onaa is if you can acquire the item somewhere else for cheaper.
  21. ↑ Halichot Bein Adam Lachavero 10:37, Mishpitei Hatorah 2:1, since people are willing to pay extra for this convenience they knowingly forgo the overcharge.
  22. ↑ Shulchan Aruch CM 227:29, 32 based on Mishna Bava Metzia 56a rules that there is no onaa on the sale of land. The Gemara Bava Metsia 56b says that renting of objects or land is considered a temporary sale and therefore there is onaa. This is codified by Shulchan Aruch CM 227:33-35. Halichot Bein Adam Lachavero 10:45 and Pitchei Choshen Geneva Vihonaa 10:5 agree. Rabbenu Tam cited by Tosfot Ketubot 98a s.v. almanah based on the Yerushalmi (Ketubot 11:4) writes that if you charge double or more of the going price of land, then it is certainly considered onaa and the sale is invalid. Tosafot Bava Metsia 57a s.v. Amar and Bava Kama 14b s.v. Davar, and Rosh (Bava Metsia 4:21) agree. The Rama CM 227:29 codifies this opinion but only says that if it is more than double it is onaa. However, the Sama 227:50 points out that Rabbenu Tam in Ketubot and the Rosh explicitly say even exactly double is onaa. On the other hand, Rif (Bava Metsia 32a-32b) at length disagrees with the opinion of some geonim who thought that the sale of land is invalid if one charges more than double. The Rambam (Mechira 13:8) states that there’s no onaa on land for any price even if you overcharge by tenfold. This is also the opinion of the Bet Yosef CM 227:29.
  23. ↑ Pitchei Choshen Geneva Vihonaa 10:3. The Ramban Vayikra 25:14 points out that even though the Gemara learns that land is excluded from onaa, according to the simple explanation of the pasuk, it is clearly forbidden to cheat someone on the sale of land. In fact, he says that the simple explanation is so compelling that he suggests that there is a biblical prohibition to cheat someone on the sale of land, it is just excluded from the laws of returning the money. The Minchat Chinuch 337:3 argues that the Rambam would agree with the Ramban because he holds that gezel applies to land and the gemara Bava Metsia 61a suggests that onaa would be sufficient to replace the prohibition of gezel. However, he notes, that the Tosfot ad loc. s.v. alah would argue with the Ramban’s premise and assume that there’s no prohibition of onaa on land at all. The Pitchei Teshuva CM 227:21 quotes this Ramban. Similarly, the Sama CM 227:51 cites the Maharshal who holds that it is onat devarim to cheat someone on a sale of land.
  24. ↑ Bava Metsia 56b, Shulchan Aruch C.M. 227:15
  25. ↑ Halichot Bein Adam Lachavero 10:47, Mishpitei Hatorah 2:4
  26. ↑ Halichot Bein Adam Lachavero 10:47 writes that for something that the buyer is projecting the value of the item to rise greatly there is no honaa. Teshuvat Harosh 13:20
  27. ↑ Shulchan Aruch CM 227:29. This exclusion would apply nowadays to the purchase and sale of most financial documents – stocks, bonds, treasury bills, etc. – since they do not have intrinsic value and only represent the debt or share in the company. (Business Halacha: Overcharged by the Mechanic by Rabbi Meir Orlian). Nonetheless, the Minchat Chinuch 337:3 assumes that documents have the same halacha as land where the sale is valid but it is forbidden to overcharge. Pitchei Choshen Geneva Vihonaa 10:3 agrees.
  28. ↑ Mishpatecha Lyakov 8:28
  29. ↑ Mishpatecha Lyakov 8:28 based on Rabbenu Chananel and Meiri
  30. ↑ Bava Metsia 51a, Shulchan Aruch C.M. 227:23
  31. ↑ Shulchan Aruch C.M. 227:24
  32. ↑ Shulchan Aruch C.M. 227:21, Pitchei Choshen 5:10:16. Sma 227:39 explains that a person can't forgo onaah if he doesn't know the exact amount of the onaah because he could always claim that he didn't realize there was that much of an overcharge.
  33. ↑ 33.0 33.1 33.2 Zera Yakov v. 37 p. 99-100 based on Sma 227:51 who writes that there's an isur onah by avadim and the din that sechirut poalim doesn't have onaah is based on avadim (see SA 227:33).
  34. ↑ Shulchan Aruch C.M. 227:33
  35. ↑ Rabbi Aaron Levine in Economic Morality and Jewish Law pp. 197-201
  36. ↑ Rabbi Aaron Levine in Economic Morality and Jewish Law p. 203, Rabbi Aaron Levine in Free Enterprise and Jewish Law p. 57
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