(2012/5772)

Last week we presented the first part of Leead Staller’s analysis of the Torah’s prohibiting Ona’at Mammon (improper payment for a service or good). This week we present the completion of Leead's insightful essay to this important Torah topic. Last week’s essay may be accessed at www.koltorah.org.

The Netziv’s Approach

One of the earliest sources of Pesak Halachah we have is the She’iltot DeRav Achai Ga’on (She’iltah 113), which say that even though we normally follow Shmuel in Dinei Mamonot, here Shmuel is rejected and we don’t rule in accordance with his opinion. Rabbeinu Chanan’eil on our Sugya also states that we follow Rav regarding Ona’at Mamon; however, unlike the She’iltot, he states explicitly that this is because Ona’ah is a Din in Isur VeHeteir. This formulation is clearly different than the She’iltot which seemingly maintain the monetary categorization of Ona’ah, and merely argue that we don’t follow Shmuel for other reasons. Tosafot (Bava Metzi’a 52b s.v. BaMeh Devarim Amurim) challenge Rabbeinu Chananeil, and point to the She’iltot as a proof that we rule in accordance with Rav only for technical reasons, not because Ona’ah is a Din in Isur VeHeteir.

While all of this flows with the perspective we have been developing until now, the Netziv (HaAmek She’eilot ad. loc.) takes a different approach. The Netziv notes that there is a Machloket between Rabbeinu Chananeil and the She’iltot about whether Ona’ah is a monetary restriction or an issue of Isur VeHeteir. He concludes that if Ona’ah is a Din in Isur VeHeteir, then in cases where you don’t have to return the money, it must be that there is no Isur. Whereas, if it is a Din in Mamon, there would always be an Isur, and it is for external reasons, such as Mechilah, that you don’t actually have to return the money.

It is clear that the Netziv rejects the premise of Ramban and collapses the two Dinim of Tashlumin and the Lav Ona’ah into one Mitzvah of Ona’ah. If you argue that Ona’ah is Isur VeHeteir, Tashlumin must be too. Therefore, wherever there is Tashlumin there is an Isur of Ona’ah, and vice versa. As such, if you say that Ona’ah is a moral obligation, the reason one might not have to return the money is because it wasn’t taken immorally. Whereas, if you say it’s a financial guideline, Ona’ah is also a financial restriction. Thus, regardless of the situation, if the amount charged is more than the amount the product is worth, there will always be a problem of Ona’ah and a need to return the wrongfully acquired money. The financial world focuses solely on the fairness of the deal, so one should always have to rectify an unfair transaction. However, other external monetary laws, such as the idea of Mechilah, assumed forgiveness, override the practical need to compensate.

Contradiction in Rambam

If we review the conclusion of our Sugya, we concluded that Shmuel holds in all cases, whether ambiguous or explicit, that a condition can override the prohibition of fraud. Whereas, Rav agrees in the case of an explicit condition, but disagrees and states that an ambiguous condition that conflicts with the law of Ona’ah is nullified.

Rambam (Hilchot Mechirah 13:3) rules that an ambiguous condition in Ona’ah is nullified, but an explicit condition in Ona’ah is maintained, “SheKol Tenai SheBeMamon Kayam,” “because all monetary conditions are maintained.” This is exactly how we explained Rav’s ruling. Thereby, Rambam seemingly rules in accordance with Rav, believing that Ona’ah is a Din BeIsur VeHeteir and overrides a condition. However, once one explicitly states that he is charging fraudulently, he is no longer intending to cheat the other party and it is no longer considered Ona’ah. At that point, it becomes a conventional monetary transaction and the condition would be maintained. This is consistent with the opinion of Rambam developed earlier in this article.

The Gemara (Makkot 3b) presents a similar Machloket between Rav and Shmuel about making a condition regarding Shemitah. Every seven years, in addition to the agricultural prohibitions of Shemitah, there is also a financial prohibition of collecting loans. If one makes a condition that Shemitah will not cancel a loan, Rav rules that it doesn’t cancel the loan, and Shmuel says that it does. The Gemara compares this case to that of Ona’ah to try and derive Shmuel’s true opinion, concluding that Shmuel holds that any condition made that contradicts a Torah imperative is nullified.

In reference to this Gemara, Rambam (Hilchot Shemitah VeYovel 9:10) rules that by a condition made to circumvent Shemitah, the condition is maintained, “SheKol Tenai SheBeMamon Kayam,” “because all monetary conditions are maintained.” This is the opinion of Shmuel in the Gemara. Seemingly, Rambam is contradicting himself. By Ona’ah he holds like Rav, yet by Shemitah he holds like Shmuel.

The Lechem Mishnah (ad. loc.) notes this contradiction, and is incapable of answering what could cause Rambam to contradict himself. Ultimately, the Lechem Mishnah concludes “Tzarich Iyun,” “it needs an explanation,” as he has none.

However, I would like to suggest that Rambam is consistent, not contradictory, and, moreover, that Rambam explains his reasoning to us. By Ona’ah, Rambam holds like Rav, because Rambam believes that Ona’ah is a Din Isur VeHeteir. It is not a monetary concern, but a moral concern as to what is and is not allowed. Therefore, we Paskin according to Rav like in all cases of Isur VeHeteir. However, Rambam understands waiving one’s right to cancel a loan as a financial matter. Loans are the epitome of a case of Mamonot, and trying to circumvent a loan is clearly a monetary dealing and not a moral one. A borrower is given the financial privilege of defaulting on his loans and not paying them every seven years. However, this financial privilege can be waived, which is a financial act on behalf of the borrower. As such, Rambam follows Shmuel, as we always do in a Din Mamonot.

Moreover, Rambam explains this reasoning. Both by Ona’ah and Shemitah, Rambam inserts the seemingly unnecessary phrase, “SheKol Tenai SheBeMamon Kayam,” “all monetary conditions are maintained.” However, these phrases are not unnecessary throw-ins. This phrase represents Rambam’s reasoning for his Pesak. Rambam informs us of the standard he uses to reach his conclusion. According to Rambam, for a condition to be maintained, it must be monetary. Therefore, when he states that the condition on Ona’ah is not maintained, Rambam is saying that it is not a monetary condition. And when Rambam says that the condition on Shemitah is maintained, Rambam is saying that Shemitah canceling loans is a Din Mamon. Thereby, Rambam not only is consistent, but he reveals to us his reasoning.

This difference between Mamon and Isur VeHeteir is seemingly absent from the Lechem Mishnah’s analysis of the Sugya, and he concludes without an answer, “Tzarich Iyun.” Interestingly, the Lechem Mishnah’s Rebbe’s Rebbe, Rav Yosef Karo, alters the words of Rambam in his codification of the Halachah. In the Shulchan Aruch, Rav Yosef Karo uses the exact text of Rambam with one small change. Both by Ona’ah (Choshen Mishpat 227:21) and by Shemitah (Choshen Mishpat 67:9), the Shulchan Aruch omits Rambam’s explanation of “SheKol Tenai SheBeMamon Kayam.” Rav Karo’s school of thought, viewing this Sugya through a different lens, does not view this question as a Machloket as to whether Ona’ah is a Din Mamon or Isur VeHeteir. Therefore, Rav Yosef Karo understands Rambam with similar difficulty to that of the Lechem Mishnah. This leads Rav Karo to leave out Rambam’s “explanation” as, to Rav Karo, it is superfluous and irrelevant. Moreover, this may be consistent with the Beit Yosef we saw before. While the Tur takes a stance that seems to depict Ona’ah as a Din Isur VeHeteir, saying that it applies only when committed intentionally, Rav Karo, in the Beit Yosef, comments and “clarifies” the meaning of the Tur, making it more ambiguous.

Finally, the Chiddushei HaRan (Bava Metzi’a 51b s.v. Rava Amar) takes an interesting stance. The Chiddushei HaRan, through a long reinterpretation of the Gemara, concludes, contrary to what we previously understood, that the Machloket between Rav and Shmuel is not in Stam, an ambiguous condition, but in Mefurash, an explicit condition. In the case of Stam, everyone agrees the condition is nullified. The only question is whether it works in the case of Mefurash. Rav, being more strict, states that it never works, whereas Shmuel believes that it works only in Mefurash. If that’s the case, when Rambam rules that the condition works in Mefurash but is nullified in Stam, he is ruling like Shmuel. Thereby, the Ran manages to reinterpret Rambam as ruling like Shmuel, and thereby holding that Ona’ah is a financial obligation.

Conclusion

Ona’ah presents a venue to highlight two very important concepts. First, Halachah is not as clear cut as we may think. While one’s initial reaction would be to classify Ona’ah as a financial obligation, a deeper analysis reveals that it is not so simple.

Secondly, it is important to understand the Isur VeHeteir aspect of Halachah. A Din such as Ona’ah can have a deeper moral obligation that is underlying it. While it is true that Ona’ah is a Torah law that is at least somewhat concerned with how we deal with our money, it is also concerned with how we conduct ourselves as people. Halachah, more than merely protecting financial “fairness,” also protects moral integrity and sets a guideline as to how to live a life of Heteir, not Isur.

Note: Throughout the article, I attempted to describe the category of Isur VeHeteir as being a moral imperative. That is not to imply that Dinei Mamonot are not also moral obligation. All Mitzvot are moral obligations. However, some acts are immoral irrespective of the circumstances or consequences, and that, I feel, is better represented by the category of Halachah known as Isur VeHeteir.