This week’s article extends the series discussing the laws of Onaah, and will specifically address the time restriction associated with Onaah claims.
Why does the Onaah claim, unlike other claims of civil law, have a time limit? Does the time limit vary according to individual circumstances, or is it general and uniform? What happens when the price of a purchase changes after the transaction has taken place? Does the fact that the buyer has yet to pay for the purchase make a difference? And how does this halacha apply today?
These issues, among others, are discussed below.
A Timely Waiver
Unlike other monetary claims (such as theft, damages, debts, and so on), which are unlimited by time and can be claimed even years after the event that created the claim, Chazal specifically limited the time in which a person can make an Onaah claim.
To generalize, the time limit – which applies both to claims of refunding Onaah when overpricing is exactly one-sixth of the true price, and to voiding the transaction when the price paid was more than a sixth off – is the time that it should take the victim to uncover the price fraud. The Mishnah (Bava Metzia 49b) defines this as, “The time it takes [for the buyer] to show the purchase to a merchant, or to his relative.” The same terminology is used in the corresponding ruling of the Shulchan Aruch (Choshen Mishpat 227:7).
The principle behind this time limit is that once enough time to show the purchase to a knowledgeable person has elapsed, we assume that the buyer has discovered the price discrepancy. If he then fails to make a claim, we assume he has waived his claim of Onaah.
Unlike theft and damage in which the perpetrator does not engage his victim in a transaction, the overcharged buyer was willing to pay the stipulated amount for the purchased item. Although he may not have known that he was being overcharged, there is a fair chance that, just as he was initially prepared to pay the high sum, so too he is not interested in claiming it back.
Note that in general, the intent to waive a monetary right must be declared explicitly in order to give it legal validity. In the case of Onaah, however, the elapsed time is taken as an indication of the victim’s intent to waive his claim, and it is considered as though it was spoken out. The principle of a clearly implied intention being equivalent to the intention being spoken out is elucidated by the Ketzos Hachoshen (Choshen Mishpat 12:1), and is applied to Onaah by the Mishpat Shalom (Choshen Mishpat 227).
A central debate among authorities is whether the relevant time limit varies individually according to the particular circumstances, or whether Chazal intended a fixed time that applies to everyone equally.
Based on the idea that after a particular time the buyer forgoes his claim on Onaah, it seems that the time is essentially personal: the mechila (waiving) of each individual will depend on his own circumstances. For instance, one cannot compare somebody who lives in the city center, who can show the purchase with ease, to someone living in a rural village.
This approach emerges from the Shulchan Aruch, who does not mention any set time. Furthermore, we find that the Shulchan Aruch makes special time allocations for particular cases. When no expert can be found in town, for instance in a diamond transaction (which requires a rare specialist), the time is extended to whenever the buyer goes to a larger town, or to when an expert visits the town—even if this takes a long time (227:15).
Additionally, the Tur (Choshen Mishpat 227) writes that if the buyer is lazy in seeking out the relevant merchant, we assume that he waives his claim to Onaah. This implies that when he has not been lazy, the buyer does not waive his claim for a refund until the time he personally requires to check the price has elapsed.
On the other hand, Shut Maharsham (Vol. 2, no. 231) cites Tosafos (Bava Metzia 49b) that the amount of time depends on how long it takes to show the item to a merchant in an average case.
The Naive Buyer: Personal Circumstances
An individual-based time limit gives rise to certain difficulties.
If we should find out, for instance, that the particular buyer was naive, so that it never crossed his mind to investigate the price of his purchase, should we conclude that the time limit does not apply and that he may claim Onaah despite its passing?
The Aruch Hashulchan (Choshen Mishpat 227:18) writes that this is true: If the buyer, out of naivety, never tried to ascertain the true price, the seller remains obligated to return the Onaah (or to void the transaction) without time limit.
The Shach also implies that the time limitation is a personal concept rather than a general and uniform enactment. This emerges from a ruling cited by the Shach (227: 4) of the Hagahos Ashri, who states that if the buyer has not yet handed over payment for his purchase, the time-limit for claiming Onaah does not apply.
The reason for this is because the buyer has a Migu: Since he could (lie and) claim that he has already paid the money, he is believed in claiming that he has not foregone his right our claim. If there were a general enactment limiting Onaah claims to a particular time frame, irrespective of personal naivety or ignorance, the fact that the buyer has not mentally waived his right of claim would be of no relevance. From the ruling cited by the Shach we learn that the time limitation is personal, depending on the assumption that the particular buyer has made a conscious decision to forgo his claim.
The Shach himself concludes that the ruling of the Hagahos Ashri needs further investigation. Yet even the Ketzos Hachoshen, who disputes the ruling, does so because the argument that he did not consciously forgo his claim is weak (coming against a chazakah), and not because of a general enactment of Chazal. Moreover, the Shaar Mishpat and several other Poskim also concur with the ruling cited by the Shach (some of them for an additional reason—see Pischei Teshuvah 227:2), indicating a general consensus as to the individual nature of the time-limit.
Although it seems to run against the silence of other authorities, it nonetheless seems that they agree with the Aruch Hashulchan: when a conscious waiver on the part of the buyer cannot be assumed (for instance if the buyer is clearly ignorant of the laws of Onaah), the buyer does not forfeit his right of claim.
Note, however, that the Aruch Hashulchan agrees that when a buyer has used the item for a long time, he may no longer claim Onaah—irrespective of the above considerations. His reasoning for this that ein ladavar sof (there would be no end to this). Thankfully for sellers, a buyer may not get overcharged, then use the item for as long as he wishes, and then claim Onaah to annul the transaction.
Buyers and Sellers
The Gemara (Bava Metzia 51a) explains that the time limit on Onaah claims is imposed on the buyer alone, because he has possession of the bought item and is able to show it to the relevant expert. The seller, on the other hand, who does not have the item in his possession, is not limited by time, and may claim back Onaah (or void the transaction) even after the designated time. This is ruled by the Shulchan Aruch (Choshen Mishpat 227:8).
Yet, even the seller’s right to claim is not necessarily eternal. Based on the essential logic of the principle, the exclusion of the seller from the time-limitation is only true insofar as he does not hold a like item in his possession. If he sold one of two (or more) identical items, his claim of Onaah is just as limited as that of the buyer, since he can show the identical item to an expert (see Shut Maharit, Choshen Mishpat 19).
The Shach adds (citing several authorities) that in cases of land transactions (where claims of Onaah are possible—see the previous article on the subject) the buyer and seller are equally limited by time, because both are equally able to show the land to an expert. The Nesivos Hamishpat (227:5) writes in a similar vein that if the item remains in the possession of the seller, the halacha is reversed: the time limit applies to the seller, while the buyer’s clock starts to tick only after he receives the item.
The Halacha Today
Today, the concept of showing the item to an expert is relevant only to special cases, such as the sale of a diamond, a stamp collection, and other fairly unique items. For ordinary mass-produced goods, both the buyer and the seller can easily find out the market price (for example, by checking on the Internet, or by making a couple of phone calls), and the time limit therefore applies to both—whether or not they actually have possession of the item in question.
Appreciating the issues that arise from changing technology, Shut Maharsham (Vol. 3, no. 307) already notes that the ability to determine the price by means of telegrams and mail must be taken into account, and one who does not do so forfeits his claim to Onaah. In our technologically advanced times, the time limit for claiming Onaah may be reduced to a number of hours.
Even when the time limit is fully applicable, extenuating circumstances are taken into account. The Shulchan Aruch (227:7) rules that when extenuating circumstances, rather than laziness, prevent the buyer from finding out the price of his purchase, the conventional time limit does not apply.
The Lechem Rav (glosses on Shulchan Aruch), discussing a case in which no expert was available locally (but could be found in a neighboring town), writes that the golden yardstick for halachic ruling is ein le’dayan ela ma she’einav ro’os. In each individual time and place, the relevant authority must assess whether the buyer took reasonable action to determine the true price of his acquisition, or whether he was clearly happy with the purchase and showed a general unconcern with the true price.
When the regular time limit for claiming Onaah does not apply (for instance when the seller was underpaid, or when the buyer has no way of finding out the price), there appears to be no time limitation on claims for Onaah or bitul mekach.
An important exception is when the price changes. The Shulchan Aruch (227:9) mentions that if the relevant party wishes to void the transaction because of subsequent changes in the price of the purchase, there is no claim.
According to Shut Marahit (Choshen Mishpat 19), whenever the price changed since the time of sale, we assume that any subsequent claim is related to the change of price, and unless proven otherwise the relevant party has lost his right to claim Onaah. The way of proving otherwise is to demonstrate ongoing ignorance of the Onaah until the time the claim is made, thus showing that the claim is not related to the change of price.
Barring this proof, a change of price (according to Maharit) voids the victim’s claim. Other authorities, however, dispute this ruling (see especially Shut Heishiv Moshe no. 102). In such complicated cases, a competent authority must be consulted.
The matter of changing prices is especially pertinent to rental agreements. The Shulchan Aruch (227:35) rules that the time limit of showing an expert does not apply to rental of animals (or cars), and vessels (or wedding dresses, sets for functions, and so on). The time limit for reclaiming Onaah will therefore be set whenever the price of such rentals markedly increases.
Alternatively, whenever it can be proven that the victim of Onaah found out about the price fraud, he loses his right to claim. The principle behind the various time limitations, as we have seen, is that when they pass we assume that the victim has found out about the fraud, and has waived his right to claim. If we know that the victim became aware that he was overcharged (or underpaid), we no longer need to rely on time-limits, and the claim is waived.