Translation:Shulchan Aruch/Choshen Mishpat/227

Paragraph 1- One is prohibited from overcharging another, whether in buying or selling. Whichever party overcharges, regardless of whether it is the seller or buyer, violates a negative commandment.

Paragraph 2- How much must the overcharge be for one to be required to return? Exactly 1/6. How so? If one sold an item worth six for five, an item worth seven for six, an item worth five for six and an item worth six for seven, that is an overcharge, the item would be acquired and the party that overcharged would be required to pay back for the overcharge and return the entire amount to the victim.

Paragraph 3- If the overcharge was less than this by any amount, such as where he sold something 70 for 60 and a perutah, the overcharging party would not be required to return anything because everyone has the practice to waive anything less than 1/6.

Paragraph 4- If the overcharge was any amount more than 1/6, such as where one sold something worth 60 for a perutah less than 50, the sale would be void and the victim can return the item and not acquire it at all. The overcharging party, however, cannot retract if the victim wants to keep the sale and accepts the higher price. There are those who say that even the overcharging party may retract unless the victim already agreed one time or was silent for longer than the amount discussed below in paragraph 7. If one sold something worth 60 for 51, or vice versa, where there is no overcharging of 1/6 and if you look at one side the sale should be voided, but if you look at the other side it would be a waiver, we would follow the actual item, regardless of whether that leads to voiding the sale or a waiver, because people err on the item and not on the money.

Paragraph 5- The overcharging party is not required to pay back unless the overcharge was more than a perutah. If it was exactly a perutah he would not be required to pay back. There are those who say he would be liable to pay back a perutah.

Paragraph 6- It is unclear whether one is permitted to overcharge another by less than 1/6 if the overcharge is a perutah. When it comes to spending currency, however, so long as the overcharge is not the requisite amount, one is permitted in the first instance to use the currency as good currency.

Paragraph 7- For how long may one go back and make a claim on the overcharge, whether it is to return 1/6 or void the sale when it is more than 1/6? As long as it takes to show to a merchant or his relative. If he delayed longer than that, he cannot retract or make a claim on the overcharge. If it is determined that he had an unavoidable accident and that is why he couldn’t conduct an investigation within the timeframe to find out if he was overcharged, he can still retract. If the buyer knew at the time of the purchase that he was overcharged, and he was silent and immediately after purchasing, before the time of showing to a merchant or relative, he makes a claim on the overcharge, we do not say he has waived because he knew.

Paragraph 8- When is this true? With respect to a buyer because the item is in his possession and he can show it. With respect to the seller, however, he can always retract in a case where the overcharge would be returned, and it goes without saying that he can retract where the sale would be voided because he does not know the value of what was sold until he sees a comparable item sold in the market. Therefore, if the item was something where there is no unique characteristics and they are all worth the same, such as peppers or something similar, the seller can only retract until the time needed to ask what the market rate is. Similarly, if he knew because that same item came to him via sale and he knew he erred but did not make a claim, he cannot go back and retract and make a claim because he has waived.

Paragraph 9- When is this true? Where the market rate did not change. If the market rate changes and that is why he wants to retract, however, he is not permitted to do so. If the overcharging party says the market has changed, and the victim says it has not, the victim has the burden of proof because markets always change. Similarly, if one sold because he was pressed for money and lowered his price excessively to a price that is more than one would err on, it is clear that he is selling because he is pressed and he cannot retract because he knew and waived.

Paragraph 10- If one sells to another something worth four for five, in which case the sale would be void, and the buyer did not have a chance to show the item to a merchant or his relative before the price went up and now was worth seven, the buyer can retract but not the seller because the seller can tell the buyer had you not overcharged me you would not be able to retract and now that you did overcharge me you should able to retract?! How can a sinner be rewarded?

Paragraph 11- Similarly, if one sells something worth five for four, and it went down in value to three, the seller can retract and not the buyer, because the seller tells the buyer you do not get the right to retract just because you overcharged me.

Paragraph 12- If one sells something worth five for six and did not have time to show it before it went up in value and was now worth eight, the seller is required to return the one that was overcharged because the item was acquired, the seller was required to return and when the value went up it went up in the buyer’s possession.

Paragraph 13- Similarly, if one sold something worth six for five, and the item went down in value and was now three, the buyer is required to return the one sela of overcharge because the item was acquired and went down in value in the buyer’s possession.

Paragraph 14- Just as the principles of overcharge apply to a layman, so too they apply to a merchant, even though he is an expert.

Paragraph 15- The rules of overcharging apply to all movable items, even books and good stones and pearls. The buyer can retract until he shows to the merchants who are experts on the items in all locations because not everyone is an expert on these things. Thus, if no one knew in that jurisdiction and he brought the item to another place, or the expert came much later, and the expert notified him that he erred, he can retract.

Paragraph 16- The principles of overcharging apply with respect to currency up to 1/6. How so? If a gold dinar was worth 24 silver dinar and he exchanged it for 20 or for 28, the overcharging party would return the overcharge. If it was more than that, the exchange would be void. If it was less than that, the overcharge would be waived. Similarly, if a sela was missing 1/6, and they would use selaim by count and not weight, the overcharge would be returned. If they used the currency by weight, any amount of overcharge would be returned. There are those who say that the formula for overcharge of currency is 1/12. Less than that would be waived and more than that would void the transaction. So long as waiver applies one may use such currency in the first instance, as was discussed in Paragraph 6.

Paragraph 17- How long does one have to return a dinar or sela? In large cities, one has until the time needed to show the currency to a money changer. In villages where money changers are not accessible, one has until Friday when he would use the currency, because only a money change is familiar with a sela, what is missing and its value. After this time has passed, the overcharging party is not required to swap. It still is pious behavior for him to swap even after this time, so long as the currency can at least be used with some difficulty.

Paragraph 18- If a coin diminished and was lacking more than the allowed overcharge amount, one is prohibited from retaining it because it is easy to mislead people. He may not sell it to a thief or merchant because he will use it to mislead others. He cannot make a weight out of it or toss it together with his broken metals. Rather, he must cut it or drill a hole in the middle and hang it on his daughter’s neck. He may not cut it from the side, however. If it was missing enough to only be half of what it was, such as a sela that was now worth a shekel. a shekel now worth a dinar or a dinar worth ½ a dinar, he may retain it because then it would be impossible to mislead others given that its deficiency is clear to all. A coin is only purchased by weight is permitted to be retained because whomever purchase it will weigh it.

Paragraph 19- If one purchases something with money without calculating, such as where he piled money and said sell me your cow with this money, the item would be acquired and the overcharge would be returned. The same applies where one purchases fruits with a sela or two without calculating, and he would acquire and return the overcharge. There are those who say the law in these cases are uncertain and we would not remove the money from the overcharging party.

Paragraph 20- If one swaps vessels for vessels or an animal for an animal, even if it was a needle for armor or a lamb for a horse, the rules of overcharging do not apply because this party wants the needle more than the armor. If one swaps fruit for fruit, however, regardless of whether they appraised before the sale or after the sale, the principles of overcharging would apply.

Paragraph 21- If one tells another the transaction is conditional that there can be no overcharge claim against me, the rules of overcharge would apply. When is this true? In a standard case where the party doesn’t know how much overcharge there is that he would be waiving. It goes without saying that if he says the transaction is conditional that there is no overcharge, the rules of overcharge would apply. In a case where he is specific, however, the rules of overcharge would not apply. How so? If the seller tells the buyer, “this item that I giving to you for 200 I know is only worth 100, I am selling you this item on the condition that you have no overcharge claim against me,” he would have no overcharge claim against him. Similarly, if the buyer says to the seller, “this item that I am buying for you for 100 I know is worth 200, is on the condition that you have no overcharge claim against me,” he would not have any overcharge claim against him.

Paragraph 22- If one sells an item to another for a maneh, and he says to him the item is only worth 1 zuz and the sale is on the condition that you don’t have an overcharge claim against him, the rules of overcharge would apply because the buyer can say since he saw the seller said it is only worth 1 zuz, I know he only said just to get me to put my mind at ease, unless the seller explicitly says the overcharge amount there definitely is, or close enough to that amount that one may err, in which case the buyer definitely knew and waived.

Paragraph 23- If a homeowner sells his personal vessels and overcharged the buyer, the rules of overcharge do not apply because had the buyer not given extra money he would not have sold his personal vessels. Even if he sold them because he was pressed for money there would be no rules of overcharge. There are those who say that this only applies where the buyer knew that this seller was a homeowner. If he did not know or if he purchased through a broker, however, the rules of overcharge would apply.

Paragraph 24- This that one is permitted to sell his personal utensils and overcharge the buyer without the rules of overcharging applying is only for a 1/6 overcharge. If the overcharge was more than 1/6, however, he is like any other person. There are those who disagree.

Paragraph 25- If a seller and buyer agreed to consummate a transaction based on Levi’s appraisal, and Levi appraised it at a known amount and it resulted in overcharge, the rules of overcharge would apply. If it was impossible to return the overcharge, such as where the overcharging party went on his way and Levi is a merchant and expert in appraisal and did not accept payment for his appraisal, Levi would be exempt.

Paragraph 26- A gentile has no claim of overcharge, as the verse states, “a man to his brother…” If a gentile overcharged a Jew, he would return the overcharge under our laws so that the rules of a gentile not be more strict than that of a Jew.

Paragraph 27- If one sells on trust, there are no rules of overcharge. How so? “I purchased this item for such and such amount and this amount is the amount I will profit,” the rules of overcharge do not apply.

Paragraph 28- If one sells on trust, he may not appraise the inferior items on trust and the superior items for their worth. If he purchased ten 10 curtains for 10 dinar and there are some that are not worth a dinar and some are worth more, he should not appraise the inferior ones at 1 dinar each and the superior ones at their worth. Rather, everything must be on trust at the amount he purchased all of them together and the cost of the porter and the inn and includes it in the price. He cannot add payment for the burden into the price, however. Rather, he will give the profits as he agreed with the owner.

Paragraph 29- Overcharge does not apply to the following items: slaves, documents, real property and consecrated items. Even if one sold something worth 1,000 for 1 dinar or something worth 1 dinar for 1,000, the rules of overcharge would not apply. There are those who say this only applies until ½. In the case where the overcharge was more than ½, however, such as where one sold something for more than double, the rules of overcharge would apply.

Paragraph 30- When is this true? Where one sold his own properties. With respect an agent or guardian that erred and was overcharged by any amount, however, he can retract, regardless of whether it was movable items or real property. If the agent or guardian overcharged the buyer, there are those who say the same rule would apply and the sale would be void for an error of any amount, while others says that he is like any other person and up to 1/6 would be waived. The sender would acquire the extra profit.

Paragraph 31- The laws of a court that sold orphan-property and erred were discussed in Siman 109.

Paragraph 32- Just as the rules of overcharge do not apply to real property, so too they do not apply to rentals of real property. Even if one rented a large mansion for 1 dinar a year or a small barn for a dinar every day, the rules of overcharge do not apply.

Paragraph 33- If one hires another to work with him, the rules of overcharge do not apply, regardless of whether it is real property or movable items, because it is as if he is acquiring the worker for a set time and the rules of overcharge do not apply to slaves. If one hires a worker with a horse or donkey, although overcharge does not apply with respect to the individuals, it would apply with respect to the animal. We appraise how much the cost of the horse should be and how much the overcharge on that was, and the overcharging party would return the overcharge.

Paragraph 34- If one hired another to plant real property for him and the contractor said he planted appropriately and witnesses come and say he planted less than what was appropriate, it is uncertain whether the rules of overcharge would apply because of the planting or would not apply because of the land. Thus, we would not take money from the defendant. Similarly, we would not have him swear a heses oath because of the real property that is involved.

Paragraph 35- If one rents vessels or animal, the principles of overcharge would apply because a rental is a sale for one day. If the overcharge was a 1/6 or more, regardless of whether the renter or owner was overcharged, the overcharge would be returned, even after a long time.

Paragraph 36- The rules of overcharge apply to a contractor. How so? For example, if a contractor agreed to weave this garment for 10 zuz or to sew this shirt for 2 zuz, the rules of overcharge would apply and either of the two parties- the contractor or the owner- can always retract.

Paragraph 37- Brothers and partners that divide movable items have the status of buyers. In a case of overcharge of less than 1/6, the item would be acquired and nothing would be returned. If the overcharge was more than 1/6, the sale would be void. If the overcharge was 1/6, the item would be acquired and the overcharge would be returned. If they divided real property, even if he appraises something worth 1 maneh as 1 dinar or something worth 1 dinar as 1 maneh, the division would be valid. There are those that say this is only true up to ½ overcharge. If they mislead each other with measurements, weight or amount, they would retract for any amount. If they appointed an agent to divide for them and he erred, the division would be void for an error of any amount.

Paragraph 38- If the parties made a condition that they would divide using a “judges-appraisal,” and they erred by 1/6, the division would be void because in a case where judges who appraise and appraise too low or high by 1/6, the sale would be void.

Paragraph 39- If Reuven and Shimon were brothers and divided on the condition that whomever receives such and such house will open an entrance to the alley, and they did not considered that residents of the alley would be able to prevent him from doing so, and Reuven received the house and now wants to void the division, he may do so.