QUESTION:  There is a local second-hand shop where the owner and his employee kind of make up prices in, what seems to me, a manner that is based upon their perception of the buyer’s interest.   I get the idea that if I am interested in something the price is significantly higher.  Is it permitted for me to ask about item X which they don’t have – and pretend I really need item X, but I really want item Z which they do have?  Or is this a form of sheker?  Specifically, I need an upright freezer but pretend I want a chest freezer, so I ask for a chest freezer and they say they only have an upright freezer and I explain that my tools are above it [which is true, but I was planning on moving them to put in the upright freezer]. The owner says that he can give me the upright freezer at a better price than listed.  Is this permitted to do?

ANSWER:  This is a common negotiating tactic practiced by millions of businessmen, lawyers, and other types of people for many thousands of years.  There is a fascinating Midrash Tehillim (Mizmor 12) which may have relevance to your question.

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There was an incident with Rabbi Yonasan when, in his time, the price of lentils went up.  He had a relative in a certain city and he went to visit him.  He told his relative, “I am seeking lentils.”  The relative responded, “They are available for sale in the city.”  “How much do they sell for?”  “Amount X, but whenever you want I will get it for you.”

After a few days, Rabbi Yonasan went to the city to the home of his relative and inquired about him. His wife responded that he is in the fields.  He waited for him, but he did not return.  He asked one of the residents of the city, “Are there lentils available?”  He said, “No, but would you like wheat kernels?”  He (Rabbi Yonasan) said, “No, it is lentils that I desire.”

At the end they raised the price excessively, far beyond the price that his relative had quoted him.  He purchased them.

His relative then returned from the fields.  Rabbi Yonasan said to him, “You told me that the price of lentils was X and yet they charged me much more than what you quoted!  He responded, “Did you perhaps ask for lentils first?  Had you said (first) it is wheat that I desire, they would have offered you lentils, but now that you said you desire lentils first they said do you desire wheat (and thus they overcharged you). It is thus said (Tehillim 12:3), “One speaks to another with falseness, smooth talk; they speak with a double heart.”

Rabbi Chiya of Tziporei wished to purchase wheat from Syria.  Rabbi Yochanan said to him, “When you go to purchase it, say, “It is barley I wish to buy.   And when you wish to buy barley, say that it is wheat that you wish to buy, in order that they not sell it to you above the market rate.”

It would seem from this passage that you would be able to pretend you want a chest freezer, but this may not be so simple.  Rabbi Yonasan’s case dealt with a true official market.  Your case may not have a market.  I would like to suggest that this is may be a pivotal point in the ruling – just like the debate about over-pricing – onaah in the Poskim.

HOW IS MARKET VALUE DETERMINED?

There are two situations in which market value is determined: (1)If there is a set market price for the item and (2) if there is a range of prices. If there is a set market price for the item in that neighborhood, some Poskim hold that there is a problem of Onaah even if it is less than 16.67% (see Aruch HaShulchan 227:7 and Machane Efraim Onaah Siman 7).

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There is a debate in regard to where there is a range of prices in the community. The Beis Yoseph (CM 209) suggests that Onaah does not exist in such a situation. Most Poskim (see Bach and Shach cited in Shaivet HaLevi Vol. V #218) hold that even if there is a range of prices there is still a prohibition of Onaah. Some Poskim write that the figure is calculated by determining 16.67% above the highest price for the item within the range. Others write that one calculates 16.67% above the median price of the item. Rabbi Yaakov Yeshayahu Blau zt”l in his Pischei Choshain (Vol. IV p. 296) seems to feel that this is the most authoritative view.

THE RANGE VIEW

There is another understanding of these halachos as propounded by Rav Chaim Kohn in his book “Hilchos Mishpat” (page 294). His view, confirmed by this author in conversation with Rav Kohn, is that the true market price is what is determined by supply and demand in what the market will tolerate. Therefore, according to Rav Kohn, even if there is a minority of people that will purchase the item without looking at the price, this is still considered to be a valid market price. When this author suggested to Rav Kohn that this opinion may almost negate the concept of Onaah he responded as follows: “In your example, where three stores price an item at $20 per pound and a fourth store prices it at $30 per pound, there are still buyers. Yet there would be no buyers at $50 per pound. The $50 would be considered Onah.”

Rav Kohn’s view, it seems, was not accepted by the author of the Pischei Choshen z”l.  If it is true that Rav Blau’s view is the normative halachic view – then it seems to this author that you can apply this shtick to your freezer question.  According to Rav Kohn, there would not be a case of Onaah in Rabbi Yonasan’s case, since he bought it anyway.  As in all cases of halacha, however, please speak to your own Rav or Posaik.

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