If you sell something to your neighbor, or buy of your neighbor’s hand, you shall not wrong one another (Vayikra 25:14)
Although the Torah prohibition of onaah proscribes wronging a fellow in sales, the Mishnah notes three basics exceptions to the laws of fair pricing: Slaves, documents, and land, are excluded from onaah. ((Mishnah, Bava Metzia 56a; cited in Shulchan Aruch, Choshen Mishpat 227:29.)) Taken at face value, the exception of onaah would permit under- and over-charging for land, and perhaps also for houses. Closer inspection, however, will show that this is not the case.
Two Elements of Onaah
The first point to note is that there are two distinct aspects to the laws of onaah. One is the actual prohibition, as the verse implies: “You shall not wrong one another.” ((Vayikra 25:14.)) The other is the financial obligation ex post facto to refund the difference in price.
Do the above exclusions to the Torah laws of onaah relate to the prohibition of onaah, to the monetary aspect, or to both?
The primary source that expounds on this matter is Ramban. In his commentary to our Parashah. Ramban poses a fundamental question. The entire passage of Torah leading up to the prohibition of onaah refers to the sale of land—specifically, to the return of land in the Jubilee year to its original owner. The prohibition of onaah, written in this context, thus appears to refer to the fair pricing of land relative to the proximity of the Jubilee year, when the land automatically reverts to its original owner: the closer the Jubilee year, the lower the price of the land.
This, indeed, is the simple interpretation of the pasuk as offered by Rashi:
According to the simple explanation the verse pertains to the proscription of onaah: When you sell or buy a plot of land, know how many years remain until the Jubilee… If only few years remain until the Jubilee, and a person sells the land for an expensive price, the buyer has been wronged, and if many years remain until the Jubilee, and the buyer [who paid a low price] gets to eat the produce of the land for many years, the seller has been wronged.
An obvious question thus arises: If the entire prohibition of onaah is written in the context of and with reference to land, how can land be excluded from the proscription?
Laws of Onaah in Land Transactions
Ramban suggests two basic approaches to solve this puzzle. According to his second suggestion, the first words of the verse (If you sell something to your neighbor), which are written in plural form, mean to include even land; the ensuing words, however (or that you buy from the hand of your fellow), are written in the singular, and mean to exclude land, which cannot be transferred “by hand.”
The conclusion of this interpretation is that although land is thus excluded from the financial ramifications of onaah, the proscription of wronging one’s fellow applies equally to land transactions. The conclusion of the verse: “you shall not wrong, one man his brother,” applies to the first half of the verse as well as the second, implying that one may not over- or under-price even with regard to land.
This explanation is backed by the scriptural interpretation of Targum Yonasan, and by the simple explanation of the pasuk as rendered by Rashi. Rabbeinu Yonah, ((Vayikra 25:14.)) apparently following the same line of interpretation, explicitly states that the prohibition applies even to those categories excluded by the Mishnah. This opinion is also cited by Chinuch, ((Mitzvah 337.)) and is concurred with by Pnei Yehoshua. ((Bava Metzia 56b (on the Mishnah).))
According to the alternative interpretation given by Ramban, however—which he conceded does not align with the simple rendition of the pasuk—it emerges that there is no prohibition of onaah concerning land. This is the explicit opinion of Tosafos ((Bava Metzia 61a.)) and Mishneh Le-Melech, ((Laws of Malveh 4:1.)) and is also implied by Rashi. ((Bava Metzia 56b; see, however Rashi in Bava Kama (14b), where the contrary seems to be implied; see also Rashi in Bava Metzia 57b regarding onaah in cases of Hekdesh.)) Rabbi Akiva Eiger, in his annotations to the Shulchan Aruch, mentions both opinions. ((Choshen Mishpat 227:29.))
Numerous authorities have ruled that a person must heed the numerous opinions that prohibit onaah with regard to land, as befitting the severity of a Torah proscription. ((Shaar Mishpat (175:3); Pischei Teshuvah (175:4, 227:21) and Nachlas Tzvi; Shevet Ha-Levi (8:310).))
Aside from the possible transgression of onaah, an additional problem involves the prohibition of geneivas daas, meaning deceptive or misleading practice. As Sema points out, even if no proscription applies to over and under-charging in land transactions, there remains a prohibition of deceptive practice. ((Sema 227:51, citing from Maharshal. Sema also mentions the prohibition of onaas devarim, meaning causing a person grief or emotional pain. Upon finding out that he has been underpaid, the seller will certainly experience grief over his error.))
Is a House Considered Land?
A further consideration that must be taken into account is the status of houses. The Mishnah and corresponding ruling of the Shulchan Aruch refers specifically to land: “There is no onaah with regard to land.” Does the same apply to a house?
Strictly speaking, land refers to the actual firmament on which we stand, the surface of the planet’s crust. A house, however, is built of bricks and stones, which are essentially movables, detached from the earth. Arranged in the fashion of a permanent structure, do these bricks and stones revert to the halachic status of land itself, or do they retain the status of movable items they initially possessed?
The answer to this question is a matter of dispute. Shach maintains that a house (but not a lone wall) has the status of land. ((Choshen Mishpat 95:4.)) He bases this conclusion on the fact that we find throughout the Talmud that houses are purchased with land acquisitions (kinyanim), such as the transfer of money, legal documents, and ‘holding.’
Magen Avraham, however, in a rare foray into the field of monetary law, maintains that houses have the status of movables, because they consist of movable bricks and stones. ((Magen Avraham 637:7.)) Regarding their acquisition through land-based mechanisms, Magen Avrohom argues that the actual acquisition pertains to the land under the house; the house is bought agav (secondary to) the land, or by virtue of it being on the land (kinyan chatzer). ((See also Ketzos Hachoshen, 95: 3.))
The wording of Rambam, in discussing laws of onaah, is quite suggestive. He writes as follows: “Just as there is no onaah concerning [the purchase of] land, so there is no onaah concerning its rental; even if one rented a large palace for a single Dinnar per annum, or a small barn for a Dinnar per day, there is no onaah.” ((Laws of Sales 13:14.)) The mention of a ‘palace’ and a ‘barn,’ which are presumably construction of stone and brick, is clearly indicative of the Shach’s opinion that permanent structures are considered halachic ‘land.’ ((Rambam’s opinion can furthermore be traced to his mentor, Ri Mi-Gash, who teaches that making a structural amendment to a wall standing on a plot of land is an effective legal acquisition for the land itself. Ri Mi-Gash explains this ruling: “For because the convert [the discussion revolves around the property of a convert who dies without leaving relatives] left the walls built upon the land, they become a part of his integral property, and it is considered as though the acquisition was made on the land itself” (commentary to Bava Basra 53b). The implication is that having been built on the land, the walls take on the status of the land itself.))
In spite of these proofs, we find Ketzos Hachoshen ruling that with regard to a Torah prohibition, a person must take into account the possibility that houses have the status of movables, and not of land. ((Ketzos Hachoshen 339:3.)) A similar position is expressed by Mishpat Shalom. ((Choshen Mishpat 227, Mishmeres Shalom 22, quoting from Har Ha-Carmel (Choshen Mishpat 20); his discussion relates to making a claim of kim li based on the opinion that houses have the status of movables.))
For all the reasons given above—the possibility that a proscription of onaah applies to land, the prohibition of deception, and the possibility that houses have the status of movables—the buyer must act with stringency, and inform the seller of his mistaken under-charging for the apartment.
Had the transaction been completed, we would enter entirely different territory—the laws of returning onaah with regard to land. According to certain opinions, the exclusion of land from laws of onaah applies only up to a certain threshold, beyond which the laws of onaah do apply. This matter, however, is reserved, please G-d, for future opportunity.