Question
Since I wanted to buy high quality esrogim for my family and could not afford the price that stores charge for presorted esrogim that are classified as mehudar, I went to a store that had a sign that every esrog costs twenty-five dollars. Since I needed four esrogim, I spent about three hours checking esrogim until I found four esrogim mehudarim. The storekeeper noticed that I was painstakingly checking esrogim and when I came to pay for the esrogim, he refused to sell them for twenty-five dollars and asked me for a hundred dollars for each esrog, which is a fair price for this type of esrog, if it had been presorted (but it was not pre-sorted). I stealthily put the esrogim I had checked back on one side of where all the other esrogim that were for sale were situated and left the store. I called a friend and told him what happened and asked him to come to the store quickly and told him where the four esrogim were placed. He complied with my request and “innocently” went over to the place where I had placed them, cursorily looked over the esrogim, took them to the storekeeper and paid a hundred dollars for all four of them. I paid my friend a hundred dollars for the esrogim and departed. I have a few questions. Was the storekeeper permitted to act in this manner? Is there anything I could have done besides what I did, and most importantly, did I act improperly?
Answer
We note that in Israel what the storekeeper did is illegal. Once an offer is posted it cannot be withdrawn if the one to whom it was offered accepts the offer. Thus, there may be an issue of dena demalchusa as well. In this article we will study your question from the standpoint of pure Torah law.
The storekeeper certainly did not act properly since he behaved as a mechusar amono-an unreliable person. The Gemara (BM 49A) derives from a pasuk that one must keep his word. The case that is discussed by the Gemara is where a seller agreed to sell to a customer for a certain price and then reneged on his commitment.
When the esrog seller puts up a sign that every esrog in the store sells for twenty-five dollars he agrees to sell any esrog in the store to anyone who wishes to pay twenty-five dollars. Therefore, when he demanded a hundred dollars from you for an esrog that he previously offered for twenty-five dollars, he was in violation of the prohibition to act in a manner that is classified as a mechusar amono.
There is a dispute among the Rishonim whether one is a mechusar amono if the price changed between the time the agreement to purchase was made and the time that the purchase was actually consummated (called trei tarei). Perhaps one can claim that the seller had the right to change his price, according to those who maintain that one is not a muchusar amono when the price changes in the interim. However, this is incorrect because the price of this type of esrog did not change. Rather, all that transpired is that you, the customer, classified the esrog for the seller and thereby gave the seller an excuse to raise his price. The inherent price of the seller’s esrogim did not rise in the interim.
Having determined that the seller’s refusal to sell to you for the twenty-five dollars that he previously offered constitutes mechusar amono, we have to study the penalties on one who acts as a mechusar amono.
In secular Israeli law one can actually force the seller to sell for the original price, but Torah law does not go so far. Nonetheless, since one is not allowed to act as a mechusar amono, beis din should apply pressure on one who is violating the law to abide by his original commitment and thereby act in conformance with the law. In Medieval Europe (see e.g., Ohr Zorua BM 149, Maharam Mintz res. 101) the beis din would go so far as to publicly embarrass those who violated the law. We will return to this point when answering your third question.
Turning to your second question, there are two independent reasons why you could have forced the seller to pay you for your work in classifying the esrogim had you simply left them with the seller.
One reason he would need to pay you is because you improved his esrogim for him, since prior to your selection the esrogim were only worth twenty-five dollars, and after your work they became worth a hundred dollars apiece. Since you performed work for the seller, even though you were not hired to do the job, you were entitled to receive payment since you acted as a yoreid.
As we have seen in the past there are several different types of yoreid with different rules and different amounts that they are entitled to demand as their remuneration. A case that is discussed by earlier poskim from which we can deduce how to classify your situation is one who purchased something and improved it, but eventually the sale was voided since the item that was sold was found to be defective (a mekach to’us).
The poskim (Radvaz res 2184, Mabit 1, 239, Nesivos 235, 16) rule that the customer is classified as a yoreid bershus-one who improved someone else’s property with the permission of its owner. The rationale for this classification is that since the customer purchased the item, he was tacitly granted permission by the seller to improve the purchased item. When the sale is voided due to the defect, ownership of the defective item reverts to the seller who now owns an improved object. Since when the customer improved the defective item, it was done with the tacit approval of its true owner, the customer is entitled to be paid as a yoreid bershus.
Similarly, since in your situation you were acting with the approval of the seller when you checked through his esrogim, you have the status of a yoreid bershus. While it is true that when you added value to the seller’s esrogim you did not intend to work on his behalf, you are nonetheless entitled to remuneration just like the customer who improved the seller’s defective good for himself and not for the seller and yet is entitled to remuneration.
Having determined that you would have had the status of a yoreid bershus if you had left the esrogim with the seller in a manner that would have enabled him to sell them for a higher price, we can now determine how much you were entitled to be paid.
The Rishonim (e.g., Rashi Kesubos 80A, Rambam Ishus 23, 10) explain the Gemara (and that is the ruling of SA (CM 178, 3 and EH 88, 10)) that the one who improves another person’s property is entitled to be paid as a sharecropper. The reason the one who improved was entitled to be paid as a sharecropper is because that was the usual manner (Kesubos 80A) in which people worked on other people’s property in the time of the Gemara.
The equivalence now is to the amount that a person is paid for this kind of work. Nowadays, people who work as checkers of esrogim are paid for their time. Therefore, you were entitled to the pay that is usually paid to those who check esrogim for kashrus organizations. (The task you did was slightly different since those who check for kashrus organizations grade all the esrogim, whereas you only selected four excellent esrogim. However, the pay would be about the same.)
Another reason the seller may need to pay you is because he caused you to have wasted your time. One source for this is a responsum of the Rosh that is ruled by the SA (333, 8) concerning a person who told a craftsman to make an object for him and after the craftsman made the object the customer refused to pay for it. The Rosh ruled that the craftsman should sell it to another person, and then the one who ordered the object must pay the craftsman the difference between what he made up to pay the craftsman and the amount the craftsman sold it for, because the loss is garmi.
Even though your case is different because the seller did not tell you to spend your time checking esrogim, nonetheless, since that is something that people commonly do and he saw you doing it, it is as if he agreed for you to spend your time checking esrogim. This is similar to the explanation of the Nesivos (232, 10) concerning a person who bought an object that turned out to be defective. The law (CM 232 21) is that if the customer informs the seller that he plans to take the object he purchases to a different place, if it turns out to be defective it is the seller’s responsibility to retrieve the defective item. If he did not inform him of this, it is the customer’s responsibility. The Nesivos proves that if it was clear to the seller that the customer plans to take his purchase to a different place, it is as if the customer informed the seller of his intention.
Similarly, here. Since the seller was fully aware of your actions it is as if you informed the seller that you were working to select a high-quality esrog. The amount the esrog dealer would owe you based on this approach is the amount you could have earned during the time you spent checking esrogim. We should note that even if you were not planning to actually earn money during the time you spent checking esrogim, you may be entitled to be paid anyway. (See Mishpat Hamazik vol. 2 page 430 for a discussion of this issue.)
Since we have two reasons to make the seller liable, he would have needed to pay you the larger of the two amounts if you would have simply given the esrogim to him. However, since you did not give them to him, he does not owe you anything for your work.
Your third question is whether you acted properly. There are two actions of yours that require scrutiny. The first issue is that perhaps you were not allowed to cause the seller a loss of potential income by returning the esrogim to where all the esrogim were on display and not giving them to the seller who could have earned a hundred dollars for each esrog.
We can prove that this action was perfectly fine. Since, as we mentioned earlier, you were not hired to select esrogim on behalf of the seller, when you selected four choice esrogim you were acting as a yoreid. The law (See Mishpatei Yosher volume 2 chapter 4) is that whenever one improves someone else’s property as a yoreid, he is permitted to undo his action if the owner of the property is not prepared to pay him what he deserves, and he doesn’t cause further damage to the owner of the property. Since all you did was to return things to the state they were in when you began, your action was perfectly permissible.
The second action that requires scrutiny is whether you acted properly when you sent someone else to buy the esrogim on your behalf. This was also proper since the seller did not lose anything by selling in this manner, since other customers would also only pay twenty-five dollars for these esrogim. The only reason you could not buy directly is because the seller might take revenge on you for thwarting his effort to take advantage of you.
Actually, you did the seller a favor by acting in this manner since by selling to you at the original price he no longer was a mechusar amono since in the end you paid the price that he originally asked for. Furthermore, as we mentioned before, the proper thing to do is to pressure one who wishes to act as a mechusar amono to act properly. Therefore, it was proper to act in a manner that caused the seller to avoid the status of a mechusar amono.
In conclusion: The seller’s attempt to charge a higher amount was improper and he would have been a mechusar amono had he been successful. Furthermore, your actions to enable you to acquire the esrog at the original price were proper. Finally, had you complied with the seller’s desires you would have been entitled to be paid.
