Question
We generally don't frequent hotels but due to a special circumstance we needed to stay in a hotel for a short time. In our room was a refrigerator containing about ten bottles of soda. Thinking that this was part of the service, we drank five of the bottles. Later when we became aware that we would be charged for the bottles at a much higher price than they sell for in the store, I bought five bottles of soda in a store and placed them in the refrigerator and wasn't charged for the bottles I drank. I was thinking that perhaps the high price that the hotel charges for soda is ono'o of more than a sixth and therefore there was no sale. If there was no sale, I only really owed the amount of money that soda bottles usually cost and therefore my action was proper. Am I correct and if not, do I owe any money?
Answer
We will first address whether the price that your hotel charged is considered ono'o because it is more than a sixth above the price that soda costs in local grocery stores.
You correctly claim that overcharging by more than a sixth constitutes ono'o and allows the customer to negate the sale. However, in order to determine if a price is considered overcharging, we have to consider the class of sellers to which a particular seller belongs. Then if within this class a particular seller's price is out-of-line by more than a sixth, the price is ono'o and the sale can be voided. (It is not void automatically.) Therefore, since you did not buy the soda in a grocery store but bought it from a hotel that placed it in the refrigerator in your room, the price at the local grocery store is irrelevant. The reason for this ruling is that for halachic issues, prices are determined by the time and place where the item is being sold.
An application of this principle is a ruling of the Mishna (Erkin 24A) that if someone who lives in a town declares that a pearl that he owns should be hekdeish and later he desires to undo his consecration and redeem the pearl by paying its value to hekdeish, the pearl is valued at the price for which it sells in his town, even if in a nearby city it sells for a much higher price. Even though by using the local price hekdeish will receive less money, nonetheless this is the amount that hekdeish is entitled to since that is where the pearl is located.
Another example that is very similar to your situation is where an ox fell into a pit that someone dug illegally in the public thoroughfare. Since the animal died as a result of its fall, the owner of the pit is required to pay the animal's owner for his loss. We determine the animal's value when it was alive and its current value and the one who dug the pit must pay the animal's owner the difference.
The Gemara (BK 11A) rules that if the one who dug the pit moves the carcass to the street level, the carcass is valued at the price people pay on the street. But if he leaves it at the bottom of the pit and tells the owner to take the carcass out himself, the carcass is valued for its worth at the bottom of the pit. Thus, we see two places which are in close proximity and yet the value of the item is determined by its precise location.
Applying this to your situation, if the hotel is charging what local hotels of a similar status charge, the hotel is not violating the prohibition of ono'o and the customer is not entitled to reverse the sale. We should note that this is widespread. For example, if one buys soda at an amusement park the price is much higher than it is in a grocery store and yet this does not constitute ono'o.
This was also the ruling of Rav Mendel Schaffrin (Otsar Hamishpot 2, page 7) concerning knives that people sell in Uman on Erev Rosh Hashana. (Some chassidim have a custom to buy a knife on Erev Rosh Hashana.) He ruled that even though these knives are sold in local Ukranian stores for a fraction of what these people charge the chassidim in Uman, nevertheless, ono'o does not apply because where the chassidim are situated the price is not out-of-line on Erev Rosh Hashana.
A second reason the law of ono'o does not apply is because when one is aware that the price is higher than it should be but nevertheless, he buys, he is not entitled to later claim that the sale constitutes ono'o since his purchase indicates that he waives his right to claim ono'o. In fact, the rule is that the time limit to claim ono'o is the time it takes to consult a knowledgeable person who can advise if the price is out-of-line. The reason is because once one is aware that the price is too high, he must claim ono'o. If he fails to do so we interpret his silence as intent to forego his legitimate claim. Therefore, certainly if one is aware at the outset that the price in a particular store is unusually high, he cannot later claim ono'o.
Applying this to soda prices in hotels: since people are aware that the price is very high in hotels one cannot afterwards claim ono'o. In your particular case since you were unaware that the soda was for sale the second reason would not apply but since the first reason does apply, there is no ono'o in your case.
However, there is another factor to consider in order to determine if your action was proper. You paid for the bottles of soda that you drank by placing other bottles of soda in the refrigerator. Furthermore, the value of the bottles that you placed in the refrigerator was the same as the value of the bottles you took since the price in a hotel is not the same as the price in the local grocery. Therefore, you paid in full for the bottles that you drank. The only thing you did that is questionable is that you did not pay with cash. Therefore, we must determine if you were allowed to pay for the bottles you drank with other bottles of soda in lieu of cash.
Tosafos (BK 9A) proves that whether one must pay with cash or may pay with goods depends on the nature of the obligation. If one owes wages to his workers, even if he does not have any cash, he must even sell his possessions in order to pay his workers with cash. In contrast, if one borrowed money he must pay back with cash only if he has cash available. If he doesn't have any cash, he need not sell his possessions and he may pay with goods. If one damages another person he may pay with goods even if he has cash.
While there is no Gemara that discusses the issue of whether a person must pay with cash for a purchase, there are Rishonim who discuss the issue. The Beis Yosef (CM 101) cites a Ritvo (BM 45B) who rules that a person must pay for a purchase with cash since that is the tacit agreement between the seller and the buyer. (This is the explanation of the Ritvo that was given by the Sema (101, 10), Ketsos (101, 3) and others.) He states that this is similar to a hired worker who is entitled to be paid with money. Based on the Ritvo, the SA (101, 6) rules that one must pay cash for a purchase.
The Ketsos (101, 3) cites a Tosafos who rules that a person who bought a field on credit may repay his debt by returning the field to the seller if, due to later developments, retaining the field will result in a loss to the buyer. We note that in that case the later developments did not justify cancellation of the sale. Thus, the customer is allowed to pay for a purchase with an object in lieu of cash. This seems to run counter to the Ritvo and the ruling of the SA.
The Ketsos offers two approaches to reconcile the approach of Tosafos with the Ritvo and the SA. The approach that is preferred by the Ketsos is that since the money that was owed by the buyer was for the very field that he bought, the buyer is allowed to pay for his purchase with the very field he bought. According to this approach (See Meluey Choshen note 38) only if the customer doesn't have cash available, he may return the land he bought.
The other approach is that since due to subsequent developments the customer will suffer a loss if he fails to pay with the field he bought, we waive the usual requirement to pay with cash. According to this approach, even if he has cash available, the buyer can pay his debt with the field he bought since that is necessary in order to avoid a loss.
We note that all of the above is true only if we consider your taking the soda as a sale. However, since you were under the impression that the soda was free, you never agreed to buy the soda and the money that you owe is not for payment for a purchase but payment for the benefit you had from drinking the soda (nehene). Proof for this assertion can be brought from a ruling of the Terumas Hadeshen (1, 317) that is cited by SA (CM 246, 17) as explained by the Ketsos (246, 2).
In the case of the Terumas Hadeshen a couple was granted two years of free meals by the groom's future father-in-law as part of the girl's dowry. After the two years, the couple continued eating by the wife's father for another eight years. At that time the son-in-law and father-in-law had a serious dispute. The father-in-law sued his son-in-law for eight years of meals. The Terumas Hadeshen ruled that unless there was evidence that the father-in-law did not intend to charge, the son-in-law needed to pay.
Thus, even though the son-in-law believed he could eat for free, nonetheless, he was obligated to pay. The Ketsos proves that the requirement to pay was because the son-in-law derived benefit from the meals. Thus, we see that even though the father-in-law meant to sell the meals, since the son-in-law thought the meals were for free, he only needed to pay for the value of the benefits he had and not as a buyer.
Returning to your question, there are two reasons you were justified in acting as you did since you were unaware that the soda was for sale. First, since you never intended to buy the soda there was no tacit agreement between you and the seller to pay cash. Therefore, you can pay with a good since you are paying for your benefit. Second, even if we view your interaction as a purchase, since you would otherwise suffer a loss, you can pay back with the same type of soda.
We note that in any case you do not owe any money since the value of the soda you returned was the same as the soda that you took since we saw that the price charged by the hotel is the price for soda in the hotel.
