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Overcharging: Difference between revisions
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==Nowadays Fluctuating Prices== | ==Nowadays Fluctuating Prices== | ||
#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.<ref>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.</ref> | #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.<ref>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. </ref> | ||
#Some poskim say that items that don’t have a set price don't have onaah,<ref>Bet Yosef CM 209:1, [https://www.hebrewbooks.org/pdfpager.aspx?req=66630&st=&pgnum=338 Rav Asher Weiss (Mishpatei Eretz v. 3 p. 340)], Halichot Bein Adam Lachavero 10:47</ref> however, other poskim hold that there is onaah on these items.<ref>Shevet Halevi 5:218. | |||
Rav Asher Weiss [https://www.hebrewbooks.org/pdfpager.aspx?req=66630&st=&pgnum=338 (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.</ref> | |||
==When Onaah Does Not Apply== | ==When Onaah Does Not Apply== | ||
#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.<ref>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.</ref> | #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.<ref>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.</ref> | ||
#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 | #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.<ref>Halichot Bein Adam Lachavero 10:37, Mishpitei Hatorah 2:1, since people are willing to pay extra for this convenience</ref> | ||
# | #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.<ref>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. | 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. | ||
</ref> 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.<ref>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.</ref> | </ref> 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.<ref>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.</ref> | ||
# | #Onaah doesn’t apply to the following items: antiques,<ref>Halichot Bein Adam Lachavero 10:47, Mishpitei Hatorah 2:4</ref> investments,<ref>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</ref> and documents.<ref>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. ([http://matzav.com/business-halacha-overcharged-by-the-mechanic/ 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.</ref> | ||
==Links== | ==Links== | ||
