(2012/5772)
Background Information
Among the many laws pertaining to how one is to conduct ethical business, Parashat BeHar codifies the law of Ona’ah. Ona’ah is a Lav, a Torah prohibition, of overcharging or underpaying. The basic principles of Ona’ah are as follows: If the amount overcharged or underpaid is less than one sixth of the value of either the money exchanged or the good purchased, the transaction is valid. If it is exactly one sixth, the amount overcharged has to be returned and the transaction stands. If it is more than one sixth, the money has to be returned and the defrauded party may cancel the transaction. We will attempt to analyze a Sugya pertaining to Ona’ah, and utilize it as a lens to gain a deeper understanding of the nature of this divine prohibition.
Source of the Prohibition
Parashat BeHar establishes the Lav of Ona’ah. “VeChi Timkeru Mimkar LaAmitecha O Kanoh MiYad Amitecha Al Tonu Ish Et Achiv,” “And if you sell goods to your kinsmen, or purchase from the hand of your kinsmen, a man should not wrong his brother” (VaYikra 25:14). Noticing the peculiar language, Chazal (Bava Metzi’a 56b) expound upon the phrase “MiYad Amitecha,” “the hand of your kinsmen,” and learn that this idea of Ona’ah applies only to items which can be passed from hand to hand, excluding, for example, transactions involving land and slaves.
However, when one looks at a Pasuk, one must also consider the context in which it appears. Interestingly enough, the Isur of Ona’ah comes in the context of Hilchot Yovel, the laws pertaining to the land during the jubilee year. This is puzzling because, as we just saw, there is no concept of Halachic fraud for land. If that is the case, why would the Isur Ona’ah be given in the context of Halachot that pertain to the land and how to treat it during the 50th year?
The Law of Compensation
Based on this context, Ramban (VaYikra 25:14-15) takes a shocking position and defines the simple understanding of Ona’ah as fundamentally being a law of real estate fraud. Ramban says that the prohibition of Ona’ah is a precautionary Isur, warning people to be aware of how many years remain until the jubilee year before buying or selling land. At the time of the Yovel, all purchased land is returned to the original owners. Effectively, when one buys land, one buys the right to work said land until the time of the Yovel. If one of the parties involved in a deal doesn’t know how many years remain until the Yovel, he may end up paying the wrong price, compensating for years that he would not be able to work the land. This presents a major difficulty, as the Gemara explicitly states that there is no concept of Ona’ah regarding real estate.
However, Ramban is sensitive to this seeming contradiction, and acknowledges that Halachically there is no law of real estate fraud. Yet, Ramban remains troubled. In order to understand the prohibition as it is seemingly presented in the Gemara, one would have to extract the Pasuk from all surrounding context and understand it as standing alone in the Parashah. This would surely be an odd reading.
Due to this difficulty, Ramban favors a different explanation. He explains that, fundamentally, when one overcharges or underpays a fellow member of Bnei Yisrael, he transgresses the Lav of Ona’ah, whether it is a transaction of movable goods or real estate. However, the specific idea of Tashlumin, compensation for the fraudulent price difference, is found only regarding movable goods. As per the authority of this law of Tashlumin, Ramban himself is unsure if it is a Torah mandate or a Rabbinical invention, and he concludes without a clear answer. Moreover, two different texts of Ramban confuse the matter even more, as one text reads “Rabboteinu Chidshu,” “our rabbis innovated,” whereas the other read “Rabboteinu Darshu,” “our rabbis expounded.” An innovation exists in a vacuum and is a Rabbinical creation, whereas a Biblical exegesis of expounding is rooted more in the Pesukim and often is DeOraita, a Torah obligation.
One can understand the application of this law in one of two ways. One understanding is that whatever reason exists to compensate for transactions of movable objects does not apply to transactions of real estate. The nature of retail transactions and the nature of movable object transactions are viewed fundamentally differently by the Torah, so this law of Tashlumin does not apply to real estate. Alternatively, one can argue that even though the same reasoning fundamentally applies, there is an external reason to exempt real estate from this law of compensation. One might argue that it is better for an agricultural economy as a whole to have land loans readily available, so the Rabbis tried to ensure that security; or, someone might more willingly forgive a fraudulent land sale given the importance of land and the future value its produce will provide. Without property, one cannot survive in an agricultural society.
Rambam’s Opinion
A quick glance at Rambam’s formulation of the Isur Ona’ah in Hilchot Mechirah 12:1 gives a similar impression. Rambam says that one who commits Ona’ah violates a prohibition, but we don’t give said transgressor lashes since the money can be returned, “SheNitan LeHeishavon.” However, in Hilchot Geneivah 1:1, Rambam adopts a different textual expression. Rambam, describing the Mitzvah to return stolen goods, states “Chaivah Oto Torah LeShaleim,” “the Torah compels the thief to return it.” Whereas by thievery the Torah compels one to return that which is stolen, by Ona’ah, one is saved from punishment because money is supposed to be given back, “Nitan LeHeishavon.” However, the exemption from punishment is not due to a Torah mandate on the individual. From this different phraseology, one can infer that the status of the Halachah of Tashlumin may be different in these two cases. By thievery, compensation is clearly a Torah mandated part of the commandment. However, by Ona’ah, the Torah does not demand from the perpetrator that he return the defrauded money. In other words, the Tashlumin is seemingly an external way to avoid punishment, but not internal to the commandment itself. This echoes the opinion of Ramban.
The Minchat Chinuch (Mitzvah 337) proves that Rambam also holds that there is a prohibition of fraud on land. The Gemara (Bava Metzi’a 61a) clearly makes a strong connection between thievery and Ona’ah, furthered by Tosafot (ad. loc. s.v. Ela). And Rambam (Hilchot Gezeilah 7:11) asserts that there is a prohibition of thievery by real estate beyond the standard prohibition of extending one’s boundaries. Based on this, the Minchat Chinuch concludes that Rambam would extend the prohibition from thievery to fraud, and agrees with Ramban that there is a prohibition of fraud by real estate, even if there is no compensation.
The Nature of the Prohibition
With that said, how do we understand that there is a fundamental prohibition of Ona’ah and a separate Halachah of Tashlumin? Moreover, when one looks at the Tur (Choshen Mishpat 227), one sees an interesting formulation. According to the Tur, there is no such thing as accidental Ona’ah. If one charges Ona’ah intentionally, he is “Oveir BeLav,” in violation of the prohibition, but if it’s accidental, it is no longer considered an issue of fraud, but rather, it is considered Gezeilah, thievery. Why should there be any difference between accidental fraud and intentional fraud? Either way, if the money isn’t returned, it should be considered in violation of the prohibition of Ona’ah! Moreover, why should accidental fraud be considered thievery?
Interestingly, the Beit Yosef (ad. loc.) notes this unusual formulation and adjusts it, arguing that the Tur means that Ona’ah is similar only to thievery. That is, there is a law of compensation, but it is not actually considered thievery.
At this point I would like to introduce the idea that Ona’ah is more than merely a financial restriction. Ona’ah may have an aspect to it that can be called “Isur VeHeteir.” Instead of being a law pertaining to monetary fairness, Din BeMamon, Ona’ah at its core can be looked at as an objective moral insistence, a matter of what is Mutar or Asur, irrespective of the financial consequences it may have. The Sefer HaChinuch (Mitzvah 337) describes the prohibition as being “Asur LeHanot Et HaBeriyot LeDa’at,” “forbidden to take advantage of creation knowingly.” Building off that concept, it describes that if one person is fraudulent in business, others will follow suit, and soon the entire societal infrastructure will be ravaged by immorality.
If that is the case, the unique qualities of Ona’ah enumerated before begin to become clearer. What does it mean that Ona’ah has both a prohibition and a separate law of compensation? Fundamentally, the prohibition can be looked at as a moral prohibition to overcharge or underpay. It is immoral to commit Ona’ah in all cases, regardless of the situation or consequences. As to the specific details of compensation and how to deal with one who does commit this sin, those Halachot fall under the category of monetary matters, ancillary accompaniments to the main Halachah of Ona’ah, which is itself a moral imperative, not a financial one. In other words, it is not that the Torah does not want us to charge too much for certain items. The Torah simply does not want us to charge the wrong price. It has nothing to do with the transaction that will occur; rather, it is solely focused on the act of being dishonest in our pricing.
Using this understanding, the opinions of Ramban and the Tur take on a new light. How can Ramban say that there is a separate Lav that always applies, whether it’s real estate or moveable items? Ramban may hold that, as a law of Isur VeHeteir, it is always Asur to charge Ona’ah, regardless of the circumstances. However, as previously stated, the practical Halachah of Tashlumin may only apply to moveable items. Ramban is not contradicting Chazal, but clarifying. Chazal have made practical guidelines, but from a fundamental standpoint, the Isur of Ona’ah applies in all instances.
Similarly, we can understand the opinion of the Tur. Why is there no such thing as accidental Ona’ah? If fraud is a strictly financial guideline, solely focusing on the money, then one’s intent would not matter. If one accidentally steals he would have to return the money or be in violation of the Lav, and if he accidentally commits Ona’ah, he should have to return the money or be in violation of Ona’ah. However, if Ona’ah is a law of Isur VeHeteir, a moral obligation as to what is and isn’t proper conduct, then if one overcharges accidentally it is clearly not Ona’ah. As a Din of Isur VeHeteir, the focus on Ona’ah would be on the person and his character, not on the money changing hands. If the person’s intent is not to charge Ona’ah and “rip off” his fellow, then no sin is committed. However, from a practical standpoint, the money he has overcharged is still wrongfully possessed, and therefore, while not Ona’ah, it is thievery if he does not return it.
Rav vs. Shmuel
This philosophical controversy as to how to view the prohibition of fraud can be seen even earlier than among the Rishonim. As background, we must know that there are two important concepts that set the foreground for the following Gemara. Firstly, there is a Halachic rule that if one makes a condition that contradicts a Torah imperative, then the condition is invalidated. However, if that condition pertains to monetary matters, even if it is outside of the financial guidelines of the Torah, it would be valid. Secondly, the Halachah states that whenever there is a Machloket between Rav and Shmuel, we hold like Rav in cases of Isur VeHeteir and we hold like Shmuel in cases of Dinei Mamonot, financial matters.
The Gemara (Bava Metzi’a 51a-51b) presents a dispute between Rav and Shmuel about whether one may make a condition on a business deal to exempt it from the prohibition of Ona’ah. Rav states that such a condition would be invalid, whereas Shmuel disagrees and maintains that the Torah would uphold such a condition. Ultimately, the Gemara concludes that the Machloket is in the case of Stam, an ambiguous condition. Rav argues the ambiguous condition is nullified whereas Shmuel rules that the condition would be upheld. But, in the case of Mefurash, an explicit condition, everyone agrees that the condition is legitimate.
The fact that Rav holds the condition to be nullified may reflect the fact that Rav feels that Ona’ah is a Din in Isur VeHeteir. As such, it is an objective moral imperative and not a financial regulation. Therefore, it is impossible to make a condition that would circumvent the prohibition of fraud. Contrarily, Shmuel may hold that Ona’ah is strictly a monetary matter, a Din in Mamonot. As such, one who makes a condition is not contradicting a Torah imperative, but rather merely adding a stipulation to a purely financial transaction. Therefore, a condition that circumvents Ona’ah would be upheld. As to why Rav would allow Ona’at Mefurash, a condition in which the amount overcharged is stated explicitly, there is consistency with the previous explanation of the Tur. As mentioned earlier, the Tur said that Ona’ah has to be intentional. We explained that this reflects an understanding of Ona’ah as an intent to “rip-off” the other party. So too, if one is Mefurash and explicit about the Ona’ah, the other party knows full well what he is getting into and is therefore not getting “ripped off.” In that instance, the Lav of Ona’ah would not apply. Once one is Mefurash with the Ona’ah, it stops becoming a Lav and becomes a regular transaction, a normal Din Mamonot. Thereby, Rav and the Tur are consistent in looking at Ona’ah as a Din BeIsur VeHeteir.