Overcharging

From Halachipedia
This is the approved revision of this page, as well as being the most recent.
Jump to: navigation, search
  1. There is a Torah prohibition to overcharge (as a seller) or underpay (as a buyer) when the other party is unaware of the market value for such an item.[1] This is split into three categories:
  2. More than 16% above market price - this amount is considered onaa and the buyer can invalidate the sale.
  3. Exactly 16% above market price - the sale is valid, but the extra money that the buyer paid must be returned.
  4. Within 16% above market price - the sale goes through and the extra money that the buyer paid need not be returned.[2]
  5. 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.[3]
  6. 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.[4]
  7. 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 onaa will not apply.[5]
  8. Onaa 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.[6] 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.[7]
  9. Onaa doesn’t apply to the following items: items that don’t have a set price[8], antiques[9], investments[10], and documents[11].

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 can be found in Shulchan Aruch C.M 227:1, Halichot Bein Adam Lachavero 10:30, and Pitchei Choshen Geneva Vihonaa 10:1.
  2. Gemara Bava Metzia 50b, 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.
  3. 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.
  4. 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.
  5. Halichot Bein Adam Lachavero 10:37, Mishpitei Hatorah 2:1, since people are willing to pay extra for this convenience
  6. 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.
  7. 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.
  8. Teshuvat Harosh 13:20, Halichot Bein Adam Lachavero 10:47
  9. Halichot Bein Adam Lachavero 10:47, Mishpitei Hatorah 2:4
  10. 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
  11. 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.