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Do Tourists Pay More For an Esrog?

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The following is a true story, which took place in one of the famed esrogim stalls of Jerusalem’s Meah Shearim neighbourhood.

An American tourist, who (as many tend to be) was quite readily identifiable as such, entered one of the small arba minim stores located on the narrow alleyways of Meah Shearim. He was accompanied by his son-in-law, a young man learning in a Jerusalem kolel, who lived locally.

Some esrogim vendors keep a special set of prize esrogim, virtually unblemished and exquisite in their beauty, which is set aside for those customers willing to pay the price. This tourist, as the knowing son-in-law quickly made clear, was such a client.

The shidduch between the American tourist and the Israeli esrog was an immediate hit. Without further ado, one hundred and fifty dollars in cash transferred hands, and the satisfied customer left the shop, attended by his son-in-law.

Some quarter of an hour later, the son-in-law’s cellular phone rang. On the line was a friend from yeshiva, who had happened to be in the arba minim store when the deal had been struck. Just a few minutes later, the friend reported, an Israeli-looking man had entered the shop, also requesting to be shown the ‘special’ esrogim. The desired esrog was picked out, and the price was paid: one hundred and ten dollars—for an esrog that appeared no less ‘special’ than the hundred and fifty dollar specimen!

Surely, concluded the friend, the large discrepancy in price was an infringement of onaah, giving the American a right to claim his money back?

This is where the story ended. Knowing that his father-in-law was entirely satisfied with his purchase, the young yeshiva-man, perhaps wisely, let the issue pass by. True, the wealthy-tourist impression made by his father-in-law had worked to his disadvantage—but if everybody was content, why stir up trouble?

Yet, the fact that the case did not make it to beis din should not deter us from giving it the halachic scrutiny it deserves. Could the tourist have made an onaah-related claim against the esrog vendor?

The Rosh (responsa, kelal 13, no. 20) discusses a case of onaah in which the right to collect the taxes of a particular community for a number of years was leased for a fixed price. Concerning such a sale, Rosh asserts that no claim of onaah can be made. Because the taxation claimable from a community is by definition a fluctuating entity, depending on the people’s consumption of taxable goods such as wine and meat, it follows that there is no fixed price on which the proscription of onaah can be based.

We might think to extrapolate the ruling of Rosh to the case of the expensive esrog. Because there is no fixed price for esrogim, perhaps they come under the same bracket as community tax collection, to which the prohibition and laws of onaah do not apply?

Yet, although this comparison seems to emerge from the writings of Mishpat Shalom (227:15), there is room to distinguish between the cases. When a person buys the right to collect the taxes of a community or town, he knows that he is taking a risk. Tax collection is a fundamentally unpredictable commodity, and buying the right to collect taxes involves an inherent risk factor. Somebody prepared to pay money for the right effectively declares himself willing to take the risk. If his gamble did not pay off, he cannot claim onaah.

Buying an esrog, however, involves no risk at all. By contrast with tax collection, the buyer knows exactly what he’s getting—an esrog to his liking. Although the price of the esrog may be in doubt, the nature of the doubt is essentially different to that latent in tax collection. Tax collection is an investment of sorts, which has a chance of failing. Although its exact price might be hard (or even impossible) to determine, buying an esrog is an ordinary purchase (this distinction emerges from Machaneh Efraim, Onaah no. 24).

Beis Yosef (Choshen Mishpat 209), however, does rule explicitly that no proscription of onaah applies to items which do not have a fixed price. According to this, a seller could theoretically charge however much he wanted for an esrog, which generally has no fixed price, without transgressing the prohibition of onaah.

Machaneh Efraim (ibid), however, together with the weighty authority of Bach and Shach (ibid. 1), all disagree with this ruling, maintaining that the principles of onaah apply to a particular item even it has no known fixed price. Shevet Halevi (Vol. 5, no. 218), who rules that one must act stringently in this matter, explains that the price of the item for matters of onaah would be the average price of the item on the market. Such a price could be determined even for esrogim.

Ritva (Kiddushin 8a), we should mention, maintains that one may sell an item at an expensive price to an individual for whom the item is worth more than its usual price. In the case of esrogim, however, it cannot be said that an esrog is worth more to rich people than to poor or ordinary people. The ruling of Ritva—which, in fact, is disputed by Ketzos Hachoshen (227:1) and other acharonim—does not sanction taking advantage of a person’s wealth.

It would therefore seem that the seller was not in his right to overcharge an unsuspecting tourist for the prize esrog. It is possible that beis din would not support a post facto money-back claim, in view of the minority opinion of Beis Yosef mentioned above—but the actual sale remains prohibited.

There remains one possibility by which discrimination between the rich and the poor might be permitted. If it is common practice to charge a higher price for the wealthy, and a lower price for the poor, then the “custom” will provide halachic backing for sellers to employ the discriminating sales strategy. A rich person who is requested to pay more effectively “forgoes” his right to the cheap price by virtue of his wealth.

Although we are perhaps unused to it, this form of discrimination is not necessarily unjust. Concerning taxation, for example, we make no objection to the application of higher tax rates to higher incomes. Luxury goods, in a similar vein, might be subject to higher taxation than basic commodities, thereby extracting more money from the rich than from the poor.

It would not seem, however, that such a discriminating “custom” is sufficiently widespread in the esrogim market to warrant application. If nobody knows about the “custom,” it follows that the wealthy do not forgo their right to pay the normal price. The prohibition of onaah would therefore remain in place.

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