Siman 227

It is written: "And if you sell a sale to your fellow, or acquire from the hand of your fellow, you shall not wrong one another." This prohibition is included within the category of robbery. Just as one does not receive lashes for the prohibition of robbery because it is subject to restitution, as it is written, "And he shall return the robbery," so too one does not receive lashes for this prohibition, as it is subject to the restitution of the ona'ah [Tur]. It is forbidden to wrong one's fellow whether in his purchase or in his sale; whether a buyer who wrongs or a seller who wrongs, he violates a prohibition. There are two types of ona'ah: the first is ona'ah regarding the body of the merchandise itself, such as when one sells it under the assumption that it is superior merchandise from a certain place, but in truth it is merchandise from another place, or it is slightly damaged and it is not apparent to the buyer, or he sells it under the assumption that it is new when it is old. Many details of this type will be explained in siman 228. If the seller is not an expert and the buyer understands that this merchandise is much better than the seller imagines, he must tell him. In such an ona'ah there is a prohibition even if he does not wrong him in the price, and certainly when there is also ona'ah in the price. Regarding this ona'ah, there is no distinction between a shopkeeper and a homeowner who sells. The second ona'ah is ona'ah in the price, even if there is no ona'ah in the essence of the merchandise—such as when the shopkeeper knows that this merchandise is currently sold in all the shops for such-and-such a price and no more, and this buyer is not an expert and he took from him at a higher rate than the fixed price. And likewise the reverse: if the seller is not an expert and the buyer knows that through error and lack of knowledge he is selling to him for less than the fixed price, he must tell him; and if not, he violates a prohibition. Therefore the sages, of blessed memory, said [Bava Metzia 51a] that a homeowner who sells is not subject to ona'ah in the price when he sold for more than its value, because it is not his desire to sell unless they give him more than its value; and it will be explained in this siman.

It is forbidden to defraud even in the amount of a perutah, and one who defrauds and knows that he is defrauding violates a negative commandment, and it will be explained in section 6. And if his intention was not to defraud, but it became known that there was ona'ah in this transaction, our sages of blessed memory said [Bava Metzia 50b] that there are three divisions in the laws of ona'ah: less than a sixth, a sixth, and more than a sixth. Less than a sixth is considered a waiver, because such is the way of buying and selling, for the buyer and the seller cannot precisely determine the value of the transaction with exactness, and it is the way of the world to waive up to a sixth [Tur]. And it appears to me that this is only regarding merchandise that does not have a precisely fixed price, but regarding that which all shopkeepers sell at the same price, such as flour, bread, salt, and the like, even less than a sixth is not considered a waiver and he must return the ona'ah. And see what I wrote in section 7. And so it is implied in the Gemara [Bava Batra 95a] where it says there: less than a sixth is not known, etc., implying that regarding a known matter, it is not considered a waiver.

This sixth that they spoke of, whether it is a sixth of the object or a sixth of the money—and even though a sixth of the object is more than a sixth of the money, such as when one sold him that which is worth six gold coins for five, where regarding the object it is a sixth and regarding the calculation of the money it is a fifth part; or if he sold that which is worth seven for six, it is a sixth of the money and less than a sixth of the object; and similarly regarding ona'ah by the buyer, when he sold him that which is worth five for six, it is a sixth of the money and more than a sixth of the object; or that which is worth six for seven, it is a sixth of the object and less than a sixth of the money—nevertheless, since on one side there is the measure of a sixth, this is ona'ah of a sixth. The purchase is acquired and neither of them can retract, and the one who overreached is obligated to pay the entire ona'ah to the one who was overreached. We do not say that since less than a sixth is considered a waiver he should only return until less than a sixth, for since it has come to the point of returning, he must return all of it, as in the case of a beit kor of earth that was explained in siman 218. And if the ona'ah was less than this by any amount, such as if he sold that which is worth seventy for sixty and a perutah, it is a waiver and he is not obligated to return anything. And if it was more than a sixth by any amount, such as if he sold that which is worth sixty for fifty minus a perutah, the purchase is void and the one who was overreached can return the object, for more than a sixth is as if the purchase was never established at all. He does not have the power to maintain the purchase and compel the one who overreached to return his ona'ah to him, for the one who overreached can say to him: "Either retract your purchase or do not seek your ona'ah." Therefore, if the one who was overreached does not seek his ona'ah and wants to maintain the purchase, the one who overreached cannot void it. The one who overreached cannot say, even when the merchandise subsequently increased in price significantly, "Since there is a voiding of the purchase here, why can I not void it?" for the truth is that the voiding of the purchase is for the benefit of the one who was overreached. If the one who overreached were also able to retract when it increases in price, a sinner would be rewarded. And some say that even the one who overreached can retract, unless the one who was overreached consented once or remained silent longer than the measure such that the purchase was established, as will be explained. Logic tends toward the first opinion, but in the Yerushalmi, chapter 4 of Bava Metzia, end of halakhah 3, it is explained like the "some say," see there, for it says: "He did not manage to negotiate until it increased from seven; Rabbi Abbahu in the name of Rabbi Yochanan: Just as it is void for this one, so it is void for that one" [and the words of the Pnei Moshe there are forced]. Regarding the first opinion, which is the opinion of the Rambam, of blessed memory, it must be said that he was not concerned for this since the plain meaning of our Gemara [Bava Batra 83b] implies the opposite, see there.

If there is not an exact shetut on each side, but rather on one side there is more than a shetut and on one side less than a shetut—for example, if he sold him that which is worth sixty for fifty-one, where relative to the value of the purchase it is less than a shetut and relative to the money it is more than a shetut; or the reverse, that he sold him that which is worth fifty-one for sixty, where relative to the value of the purchase it is more than a shetut and regarding the money it is less than a shetut—we follow the value of the purchase, whether regarding the matter of bitul mekach or regarding the matter of mechilah. For behold, the error is in the purchase and not in the money, except that when there is exactly a shetut relative to the money, the Sages, of blessed memory, said that we follow this as well in the law of shetut. And the reason is that since with a shetut itself there is no loss to either of them, as the purchase stands and he returns the ona'ah, therefore we follow it. This is not the case when on one side there is bitul mekach and on the other side mechilah, for of necessity either the purchase will be voided or one of them will lose; we establish it upon the essence of the matter, to follow the purchase, for in it is the ona'ah. [And also that which the Rambam and the Tur wrote, that if he sold worth sixty for fifty and a perutah it is mechilah, so it is; since there is not a shetut in the money, we follow the purchase, and the difficulty of the Maggid Mishneh and the Sma is answered, and so wrote the Taz]:

The defrauder is not obligated to return the ona'ah until the ona'ah is more than a perutah, but exactly a perutah, even though for all other matters it is considered money, nevertheless the Sages of blessed memory received a tradition that there is no ona'ah for perutot [Bava Metzia 55a] and such is the way of commerce to forgive a perutah. And some say that until a silver ma'ah one is not obligated to return [Tur according to the opinion of the Rif]. And some say that even for a perutah one is obligated to return, for since it has the measure of money it is like all laws of monetary matters, and we hold like the one who said [ibid.] that there is ona'ah for perutot, and so ruled our teacher, the Rema [what is written in the Tur section 2 in the name of the Rambam is a scribal error and it should say the Ramah]:

The Tur wrote in the name of the Rosh that it appears that even less than a sixth, it is forbidden to defraud one's fellow if it contains the value of a perutah, since he knows that his purchase is not worth that much; for the Merciful One said, "do not defraud," regarding anything that has monetary value, the Torah warned that one should not defraud his fellow. However, the sages said that up to a sixth it is considered a waiver, because such is the way of buying and selling, since the seller and the buyer cannot determine the price of the purchase exactly, and it is the way of the world to waive their error up to a sixth. For even if the defrauded party comes to protest, the appraisers will not appraise it equally; this one will say there is ona'ah in it and this one will say there is no ona'ah in it. Therefore, he accepts silence upon himself and does not protest, and waives it. But if the seller is expert in the value of his sale and the buyer is not so expert, or if the buyer is a merchant and expert in the value of his purchase more than the seller, they shall not defraud one another, unless he specifies. Except for a coin, for as long as it has not reached the measure of ona'ah, it is permitted ab initio to spend it as a good one, for another will also accept it from his hand as a good one and there is no loss at all. Or perhaps, since the way of buying and selling is such, that sometimes the buyer desires this purchase and adds money to it more than its value, and sometimes the seller devalues his appraisal in his sale because this object is not pleasing to him or he is pressed for money, therefore up to a sixth it is included in the price of the purchase and there is no ona'ah here at all. And it requires further study, and one who fears Heaven fulfills his obligation according to all of them. Thus far the words of the Rosh, of blessed memory. And based on this, our teacher, the Beit Yosef, wrote in section 6 that there is a doubt whether it is permitted to defraud one's fellow in less than a sixth if there is the value of a perutah in the ona'ah; but a coin, as long as it has not reached the measure of ona'ah, it is permitted ab initio to spend it as a good one. Thus far his words.

From the words of the Rosh, of blessed memory, it is to be learned that ona'ah of a sixth only applies to merchandise that not everyone sells at exactly the same price, as I wrote in section 2, since he makes it dependent on the assessment of the appraisers, and also for the reason that sometimes the purchase is pleasing to him; and this is not applicable to something that is very common where everyone sells at exactly the same price, such as flour, bread, salt, and the like. And also regarding his doubt, it appears to me from his words that the doubt only exists in a place where there is cause for the seller to assume that the buyer knows the price but simply desires this purchase; but in a place where the seller understands that the price is hidden from the buyer, and the seller knows that there is ona'ah of a perutah in this, it is forbidden for him to defraud unless he reveals it to him, and if he defrauded him, he has violated a negative commandment, and likewise a buyer toward a seller [and the difficulty of the Taz is resolved]. Furthermore, one more thing appears to me from his words as a leniency: regarding types of merchandise that not all shopkeepers sell at the same price, as there are those who profit much from this merchandise and there are those who suffice with a little, ona'ah is not applicable at all to one who profits much, since such is the way of trade, as there are those who sell at such prices. For the Rosh, of blessed memory, only made the doubt dependent on the fact that sometimes the buyer desires this purchase, for then there is a reason to forbid it, and it implies explicitly that there are no others here selling at such a price; but when there are those who sell at such a price, there is no aspect of ona'ah in this. And it is obvious that one should not look at those shopkeepers who devalue the prices and sell cheaply, who ruin themselves and ruin the ways of trade, and they shall bear their iniquity. And the Sages, of blessed memory, have already said [Bava Batra 91a]: We sound the alarm over merchandise that has become cheap, even on Shabbat, and as I wrote in Orach Chaim siman 576.

Until when can he return and claim his ona'ah in the case of a sixth, or cancel the sale in the case of more than a sixth? For it is not logical to say that he should always have this power, as in the case where a defect is found in the purchase, where he can return it even after a long time as long as he did not use it after seeing the defect, as written in siman 232. For this is not logical at all, since the ona'ah is in the price; surely upon the one who was overreached, as soon as he becomes aware that he was overreached, he must claim his ona'ah or cancel the sale. And since he did not do so, he certainly waives his right, for in the essence of the object he was not overreached by any defect within it. Therefore, our sages of blessed memory said [Bava Metzia 49a] that for as long as it takes to show it to a merchant or to his relative, he has the right to claim his ona'ah. And if he delayed more than this measure of time, he cannot retract nor claim his ona'ah. And after this time, even if he bought that which is worth a maneh for two hundred, his purchase stands [Tur]. And if he was unable to claim because the overreacher was not in his home and he used it, if the ona'ah was a sixth, this is certainly not a waiver, unlike a defect where usage is a waiver; for in a purchase, the object is his, it is only that he must receive the ona'ah, and why should he not use it? [Netivot HaMishpat there]. And even in more than a sixth, once he informed the seller, this is sufficient, and the usage is not a waiver; rather, he shall pay the seller the fee for usage and can afterwards cancel the sale or receive the ona'ah from the seller if both of them agree to this. But usage is not a waiver in ona'ah, and it is not similar to a defect [Shitah Mekubetzet in the name of the Ritva], unlike the one who disagrees in this. And so too, if it is recognized that he had a constraint and therefore did not investigate within this time to know if he was overreached, he can still retract. And some say that even though the constraint passed and he had time to investigate, nevertheless, since after the sale he did not have the leisure to investigate, he can say that afterwards, even when the constraint passed, he did not set his heart to investigate until now, and it is not a waiver [Sma]. And there are those who disagree in this [Taz]. However, when he says that after the constraint passed he investigated and found that there is ona'ah in this, and that he did not inform him until now because he thought the seller would not believe him that he had a constraint and waited until now when he is able to clarify his constraint, his claim is a valid claim [ibid.]. And so too, if he clarifies that he showed it to a merchant and the merchant told him that the purchase was worth the price, and now it has become clear to him that the merchant erred, he can retract, for you have no greater constraint than this [Netivot HaMishpat]. And specifically when many merchants contradict his appraisal, for if not so, who says that he erred? Perhaps the second one erred [It appears to me].

Our teacher, the Rema, wrote in section 7: If the buyer knew at the time he purchased it that he was defrauded and remained silent, and immediately after the purchase, before the time it would take to show it to a merchant or to his relative, he claims his ona'ah, we do not say that he waived it since he knew. Thus far his words. And why do we not say that he waived it to him? For it can be said that he intentionally remained silent so that the transaction would be established and he would claim his ona'ah; but after the time it would take to show it, when he knew that he would no longer have the ability to claim his ona'ah and remained silent, he presumably waived it [Taz]. And according to this, this law applies only to the measure of a sixth, but in more than a sixth, which constitutes a cancellation of the transaction, it is a waiver; for it is not relevant to say that he remained silent in order to establish the transaction since in this case it is a cancellation of the transaction, and also it cannot be said that he remained silent in order to cancel the transaction, for if so, why did he buy it? Therefore, in more than a sixth it is a waiver even within the time it would take to show it to a merchant, unlike the one who disagrees on this [Netivot HaMishpat]. And there is one who says that if both of them know at the time of the acquisition that there is ona'ah in this, it is as if they explicitly stipulated that he shall not lodge a claim of ona'ah, and it is like a waiver [Ketzot HaChoshen], and an explicit stipulation is not required in this. And so it appears primary for the law, unlike the one who disagrees on this.

Many of the great authorities agreed that what the sages, of blessed memory, said—that after the time it takes to show it to a merchant it is considered a waiver—this is only when one bought with ready cash. However, when one bought on credit and has not yet paid the seller, it is not a waiver even after a long time, because he can say, "I did not bother to investigate since I am the possessor," and we do not find a waiver regarding that which is under his hand. Nevertheless, it appears to me that if he used the purchase for a long time, he certainly waives, for if not so, there is no end to the matter, and this is not a reasonable logic at all. And even if he has a migo, in that he could have said "I paid him the money," he is not believed to say that he did not waive with this migo, for we do not say a migo in the place of a strong presumption. For regardless, there are those who disagree with the essence of this law and do not distinguish between a sale for cash and credit, and although we do not rule accordingly, nevertheless, if he used it for a long time, he certainly waives. And so it appears if it became known that he asked a merchant and he told him that he was defrauded, and he did not inform the seller, it is also a waiver. However, it is possible to say that he remained silent and intended in his heart, "When I pay him, I will inform him that I was defrauded." And even according to this, this is only regarding a sixth, where the purchase stands, but regarding the cancellation of a purchase, this logic is not relevant; for should he not have returned the purchase to the seller? Why did he remain silent? Rather, he certainly waived. Furthermore, it appears that in a place where credit is not a waiver, even if he paid a portion and remained owing a portion, it is not a waiver, for follow the reasoning.

This which the sages gave as the time for it to be shown to a merchant, in what case does this apply? To a buyer, for the purchase is in his hand and he can show it. But the seller may retract due to ona'ah without a fixed time, and it is unnecessary to say regarding the nullification of a sale, since he does not know the value of the object he sold until he sees an object like it being sold in the market. Therefore, if the purchase was something in which there is no variation in its kind and it is all uniform, such as peppers and the like, he may only retract within the time it takes to ask about the market rate alone. Likewise, if it became known that an object like this came into the hand of the seller in his dealings and he knew that he erred and did not claim, it appears clearly that he waived his right and he cannot claim further. And specifically when it is known with certainty that such a purchase came into his hand; but when the buyer claims so and the seller denies it, saying that such a purchase did not come into his hand, the seller does not need to bring proof, because waiver is a weak claim, as most people do not waive their money [Sma]. And when it is not known if he was defrauded at all, the buyer is believed to say that such an object came into the hand of the seller and he waived, by means of a migu that he could have said that he was not defrauded at all [Netivot HaMishpat]. And if the kinyan was with kinyan sudar and the purchase is in the hand of the seller, it is the opposite: the seller cannot retract if he was defrauded except within the time it takes to show it to a merchant, and the buyer can retract if he was defrauded until after it comes into his hand and he waits long enough to show it to a merchant [ibid.]. And regarding ona'ah of lands, both of them cannot retract after this measure of time [Shach], for land is not hidden and they were able to show it to whomever they wished.

In what case are these matters stated, that the one who was defrauded may retract? When the market price has not changed and there is ona'ah in this. But when the ona'ah is because the market price has now changed, and because of this he wishes to retract, he is not permitted, since at the time of the kinyan there was no ona'ah. And if the defrauder says that the market price changed and because of this there is now ona'ah, and the one who was defrauded says that the market price did not change, it is upon the one who was defrauded to bring proof; and we do not follow the presumption of the present state in this, for it is the way of market prices to change constantly, and we do not nullify a clear kinyan because of this. And so too if he sold due to financial pressure, such as where he depreciated his sale more than the amount of a common error, he cannot retract, since he knew that he was depreciating and was forced into this, it is a complete waiver, for he reasoned and accepted. And there is one who wishes to say that when the market price changed, then even if from the beginning there was ona'ah in it, he cannot retract, for since he remained silent until the market price changed, he presumably waived it previously, but now when the market price changed he wishes to retract. But this does not appear correct to me, for since he is still within the time of his retraction, having not yet completed the time necessary to show it to a merchant, we should not close the path before the one who was defrauded with reasons that arise in our minds, since the sages gave him permission to retract during his entire allotted time.

One who sells to his fellow that which is worth four for five, where the transaction is void, and he did not have enough time to show it to a merchant or to his relative before it rose in price and stood at seven, in any event the buyer can retract and not the seller. For the buyer says to him: "Had you not defrauded me, you would not have been able to retract; and now that you have defrauded me, you shall retract? How shall a sinner profit?" And even according to the "there are those who say" in section 3, that in the voiding of a transaction even the defrauder can void the transaction, nevertheless, when the defrauded party is satisfied to uphold the transaction and not to seek his fraudulence, the defrauder does not have the power to retract, as I have written there. And here, when it rose in price, it is nearly certain that the defrauded party desires its upholding [Sma]. And although despite this we should not prevent the defrauded party from retracting, however, the defrauder certainly can be prevented from voiding the transaction for this reason. And similarly, when he sold that which is worth five for four and it decreased in price and stood at three, the seller can retract and not the buyer, for he says to the buyer: "It is not because you defrauded me that you shall retract," as I have written.

One who sells that which is worth five for six, where the purchase is acquired and he returns the ona'ah, and he did not have time to show it until it appreciated and stood at eight, nevertheless the seller is obligated to return the one of the ona'ah; for the purchase was acquired with a sixth and he is obligated to return [it], and when it appreciated, it appreciated in the domain of the buyer. And likewise, if he sold that which is worth six for five and it depreciated and stood at four, the buyer is obligated to return the one of the ona'ah for the reason that has been explained.

Just as there is ona'ah for a layman, so too there is ona'ah for a merchant. Even though he is an expert, we do not say that he presumably knew and waived the claim, for since the ona'ah has been clarified, we are not to establish a matter based on an assessment in this case, as many times even the most expert falls into error. And it appears to me that when the seller is a merchant and the buyer claims that he knew of his ona'ah and waived it—because he was forced then to sell in order to buy other merchandise or for another reason—and now he retracts, he can obligate him in an oath [and so it appears in Bava Metzia 51a; and examine this closely].

In all movable property ona'ah applies, even in books and precious stones and pearls; for even though there are times when, due to personal affection or because he needs it to match similar items, he pays more than their value for them, nevertheless they are subject to ona'ah. For we have only to look at the item sold when it is not clarified to us that he knew of the high price and accepted it. The buyer may retract until he shows them to merchants expert in such merchandise, wherever they may be, because not everyone is expert in such things. Therefore, if there was no expert merchant in that city and he brought the purchase to another place, or if the expert came here after a long time and informed him that he erred, he may retract the purchase. And if there is a contradiction between the merchants, where this one says he erred and this one says he did not err, the hand of the possessor is on top. And if the majority say he erred and a minority say he did not err, or vice versa, we follow the majority. And even though in monetary matters we do not follow the majority, nevertheless a majority of opinions is different, for the minority is as if it does not exist, as the majority nullifies their opinion and says that they are mistaken; just as we follow the majority regarding judges even to extract money, for it is not similar to every majority and minority where the minority also necessarily exists, whereas regarding opinions, the minority is as if it is not. And see what I wrote at the end of siman 232 [and this is the intention of the Tosafot at the beginning of the third chapter of Bava Kamma, starting with the words "Kamah Mashma Lan"].

There is also ona'ah regarding currency, and its measure according to the opinion of the Rambam in chapter 12 of Sale is like all other commodities, as he wrote: There is ona'ah in coins up to a sixth. How so? If a gold dinar was worth twenty-four silver dinarim and one exchanged it for twenty dinarim or for twenty-eight dinarim, he must return the ona'ah. If it was more than this, the exchange is void; less than this, it is considered a waiver. Similarly, if the sela was missing a sixth [that it was diminished] and they were circulating the sela'im by count and not by weight, he must return the ona'ah, for if they were circulating by weight, even in any amount it is returned. Thus far his words. For anything that is by measure or by weight, even less than the amount of ona'ah is returned, as was written in siman 232. And that which was explained there, that even something by count is returned, refers to the count of the sela'im and the like, where he was supposed to give him ten pieces and gave him nine. And there are some of our teachers who disagree with the Rambam and hold that the measure of ona'ah for currency is one-twelfth, half of all other ona'ot; less than this is a waiver, and more than this is the cancellation of the transaction. The reason is that since currency is given for circulation and people do not accept it when it is missing one-twelfth, therefore it is not a waiver at this measure. And know that what the Rambam wrote regarding the exchange of a gold coin for silver coins, that we judge it with the law of ona'ah, refers to gold upon which there is no fixed price from the government, and one is more significant than the other, and the moneychangers exchange it according to its significance and according to the time. But when there is a fixed price from the government, such that a gold dinar is twenty-four silver dinarim, even if it was missing one of them, it is returned, for it is like something by count, and this man did not know unless he knew and waived. According to this, since a gold dinar is a commodity like all other commodities, they would not disagree with the Rambam that the measure of its ona'ah is a sixth, and they only disagreed regarding a coin that was diminished. And know that what was explained regarding a sela that is missing the amount of ona'ah, that he must return the ona'ah, is only when there is a place where it circulates with such a deficiency; but otherwise, the return of ona'ah is not applicable, and it is forbidden to keep it, as will be explained. Our teacher, the Rema, wrote according to the opinion of those who disagree with the Rambam.

Until when is one obligated to return the dinar or the sela? In cities, until such time as he can show it to a moneychanger, for ordinary people are not experts in recognizing coins. In villages, where a moneychanger is not commonly found, he may return it until the eves of Shabbos, when he comes to spend it in the city in honor of Shabbos and shows it to an expert. After this time, the one who overreached is not obligated to exchange it. However, it is a measure of piety to exchange it even after this time when he recognizes that it is his. All this applies when, at the very least, it can be spent with difficulty; but if it cannot be spent at all, he is obligated to return it by law even after a long time [Levush and Taz], not like the one who disagrees on this. And so it appears to me regarding other merchandise, that one should return it as a measure of piety even after the time it takes to show it to a merchant, unless the seller knows that the buyer knew and waived the claim. And if it becomes clear to the seller that the buyer did not show it to a merchant because it did not occur to him that there was ona'ah in this, it appears that even by law he is obligated to return the ona'ah to him even after time has passed. Certainly, when the buyer lives in a place where a long time is required until a merchant happens to be available for him to show it to, he must return it to him, for one must follow the underlying reasoning [it appears to me].

A coin that has been diminished and is missing the amount of ona'ah is forbidden to be kept, because it is easy to deceive with it. One may not sell it to another who intends to deceive, unless the buyer explicitly states that he will break it. Even in such a case, one should not sell it to an extortionist, or to one who is suspected of deception, or to a merchant, because they are suspected of deceiving others with it. He should not make it into a weight, nor should he throw it among silver vessel shards, for perhaps they will bring it out as a coin; rather, he should melt it down or make a hole in its center to make it into an ornament to hang on his daughter's neck or the like. However, he should not pierce it from the side, as there is concern that he will cut off the area of the hole. If it is missing up to half—for example, a sela that stood at a shekel, a shekel that stood at a dinar, or a dinar at its half—it is permitted to keep it, for then it is impossible to deceive with it because its deficiency is recognizable to all. As long as it has not been diminished by the amount of ona'ah, it is permitted to spend it as a good coin, because it passes as a good coin and it is impossible to be exact so that it does not lose any small amount from its wear. In a place where they do not take a coin except by weight, it is permitted to keep it in any case, since every buyer weighs it.

One who purchases for a price in gross, which is without measure, without weight, and without count—for example, if he grasped coins in his fists and said to him, "Sell me your cow for these coins in my hand"—he has acquired it and returns the ona'ah. And the same applies to one who purchases produce in gross for a sela or for two; he has acquired it and returns the ona'ah, as was written at the beginning of siman 209, for certainly their intention was not to purchase regardless of the circumstances, but rather that each one estimated that there were such and such coins or produce. For since he mentioned the term "sale," there is ona'ah, as it is written: "And if you sell... you shall not wrong," for an ordinary sale is one where they are particular to know the value, and ordinary exchange is one where they do not seek to know the value. Therefore, if he only mentioned the language of sale, there is ona'ah according to the market rate, even for an item whose rate is not known [Shach there], for if it were not so, he would not have mentioned the language of sale but rather the language of exchange. Therefore, there is no ona'ah in exchange, as will be explained. And some say that regarding a purchase in gross, it is a legal doubt whether there is ona'ah, and one does not extract from the possessor; but the primary view is like the first opinion [Taz]. And if he did not mention the language of sale, but rather said, "Exchange for these," there is no ona'ah; our teacher, the Beit Yosef, wrote so in Kesef Mishneh, chapter 13. And even though currency is not acquired through exchange, nevertheless, it deals with a case where he also performed meshikhah on the coins [it appears to me].

Our teacher, the Beit Yosef, wrote in section 2: One who exchanges vessels for vessels or an animal for an animal, even a needle for a coat of mail or a lamb for a horse, there is no ona'ah, for this person desires the needle more than the coat of mail. However, one who exchanges produce for produce, whether they appraised them before the sale or whether they appraised them after the sale [immediately], there is ona'ah. Thus far his words. And this is the wording of the Rambam. And there are those who explained that regarding vessels for vessels, even if they appraised them before the sale or immediately after the sale, there is no ona'ah, for in all chalifin there is no ona'ah. And regarding produce for produce, when they did not appraise them, there is also no ona'ah [Maggid Mishneh, chapter 13 of Mechirah]. And regarding produce, the term "sale" applies more than to vessels, for produce is not acquired through chalifin, as was written in siman 195 [Sma]. And chalifin of produce with an appraisal is like a sale because the appraisal of produce is known to all and it is like a sale [Levush]. But many disagree on this and hold that with an appraisal, certainly in every matter there is ona'ah, for the primary reason that there is no ona'ah in chalifin is because standard chalifin do not involve meticulousness regarding the value of the object. Therefore, in chalifin of equal value, there is certainly ona'ah. And if so, in every matter, as soon as they appraised it, there is certainly ona'ah, and there is no essential distinction between vessels and produce. And there is proof from what will be explained in section 38. And the primary distinction that the Rambam makes between vessels and produce is because produce cannot be chalifin that is acquired through the pulling of one of them—for that is the primary definition of chalifin—except with an appraisal of equal value, as was written in siman 203, section 11, for such is the opinion of the Rambam. And his intention is thus: that in chalifin there is no ona'ah since there is no appraisal here; but chalifin that must necessarily involve an appraisal before or after, such as produce—for in any other manner there is no kinyan of chalifin for produce, as was written there—there is ona'ah. [This appears to be his explanation. And there is one who says it is because of a scriptural decree, and they are not related to one another. And the early authorities who wrote thus, their intention is also as I have written, that the Torah spoke of a sale where there is an appraisal and not of chalifin, for if not so, in every kinyan sudar there would be no ona'ah; and study this.] And in a place where there is no ona'ah, it is not even in a case of more than half, unlike the one who disagrees on this; for behold, the coat of mail is worth much more than several needles, and nevertheless there is no ona'ah. The general rule of the matter: in chalifin without an appraisal, there is no ona'ah in any case, whether one acquires it for the use of his home or whether one acquires it for merchandise. However, in the acquisition of merchandise, it is not common for one to do so, since his intention is to profit. Therefore, it seems to me that when the chalifin was done without specification, and they did not mention an appraisal or the absence of an appraisal, and the one who overcharged says that the intention was without an appraisal, and the one who was overcharged says that the intention was with an appraisal: if the chalifin is for the use of the home, the one who overcharged is believed, and if for merchandise, the one who was overcharged is believed [and that which they questioned against the Radbaz is settled]. And even though there is no ona'ah in chalifin, nevertheless, nullification due to a defect exists even in chalifin [Netivot HaMishpat]. However, as for the law, it seems that even regarding produce, when they exchanged produce for produce without an appraisal and both pulled them—which is a kinyan of meshikhah for both—there is no ona'ah since they mentioned the term chalifin. And even though in truth this is not chalifin, nevertheless, since they did not mention the term "sale" to indicate that they are not meticulous about the appraisal, there is no ona'ah in this. And the Rambam, of blessed memory, took the primary law of chalifin, which is through the pulling of one of them, for this is impossible to be in produce without an appraisal, as I have written. And so wrote our teacher, the Beit Yosef, there [Kesef Mishneh], for one who says, "I exchange this heap of produce for this heap of produce," there is no ona'ah for this.

One who says to his fellow, "On condition that you have no claim of ona'ah against me," he still has a claim of ona'ah against him. And even though any condition regarding monetary matters is valid, as in Shevi'it in siman 67, nevertheless regarding ona'ah, since he does not know that there is ona'ah in this that he should waive it, and he thinks that these are merely empty words, he did not resolve in his heart to do so. Therefore, this applies only to an unspecified case where he does not know how much ona'ah there is in it that he should waive it. And all the more so if he said, "On condition that there is no ona'ah in it," which implies that there is no ona'ah in the purchase, and yet there is ona'ah, for this language does not imply the waiving of ona'ah. Therefore, some say that with this language, if ona'ah is found in it, the entire purchase is void. But in a specified case, he has no claim of ona'ah. How so? A seller who said to a buyer, "This object that I am selling to you for two hundred zuz, I know that it is only worth a maneh; I am selling it to you on condition that you have no claim of ona'ah against me," he has no claim of ona'ah against him. And similarly, a buyer who said to a seller, "This object that I am taking from you for a maneh, I know that it is worth two hundred; on condition that you have no claim of ona'ah against me," he has no claim of ona'ah against him. And some say this is specifically when he specified how much the ona'ah is, but when he says, "I know it is worth more," or the seller says, "I know it is worth less," it is not effective, for the victim of the ona'ah can say, "I did not know there would be this much ona'ah" [Sma]. And similarly, if he said, "I know it is worth much more" or "much less," there is no claim of ona'ah [it appears to me]. And it has already been explained at the beginning of siman 207 that each one must stipulate the condition that is for his own benefit, but regarding his fellow's benefit, what he stipulates is not effective unless he stipulated at the beginning of the sale, for if not so, it is merely "pittumei milli." See there.

One who sells an object to his fellow for a maneh and says to him, "This object is only worth one zuz, on condition that you have no claim of ona'ah against me," he has a claim of ona'ah against him. For he says, "Behold, I saw that he only intended to put my mind at ease and to make me understand that just as I see it is worth more than a zuz, so too it is worth the maneh that I am giving for it," until he specifies the amount of ona'ah that exists in his purchase or close to it, within the range that the mind might err. If not, it is nothing but an exaggeration of the matter. And some say that as long as he knows there is ona'ah, even if he did not know its measure, what he said to him—that it is only worth a zuz—is effective, and we do not require that he specify the value of the ona'ah. For the reason of the first opinion is because they hold that even regarding a waiver we require a fixed amount, but we do not rule accordingly. Therefore, only when he knew there was ona'ah, even though he did not know the fixed amount, it is a waiver [Taz]. And if they waived for one another an ona'ah of a sixth and it was found to be more than a sixth, it is a cancellation of the sale [Radbaz]. And so too if they waived up to a fourth or a third, if it is found to be more, it is a cancellation of the sale. And so too if he said, "I know that it is only worth a maneh and I am selling it to you for two hundred on condition that you have no claim of ona'ah against me," and afterwards it was found that it is not even worth a maneh, we do not calculate the deficit from the maneh against the two hundred—for sometimes against a maneh it would be a cancellation of the sale and against the two hundred a waiver—rather we calculate against the value of the purchase. For the buyer can say, "I agreed to forgo a hundred upon a hundred, but upon a value less than a hundred I did not agree to forgo." And it is a great principle that every ona'ah must be calculated against the value of the purchase, and the remainder that he gave of his own will is like a gift. Therefore, if they come to the laws of ona'ah, we appraise the value of the purchase. And there are those who are uncertain about this, but according to what I have written, so it appears to me to be the primary view.

A homeowner who sells his household utensils and overcharges the buyer is not subject to the law of ona'ah, for had they not increased the price for him, he would not have sold them, and it is as if he stipulated that there should be no ona'ah [Rashi]. And even if he sold due to financial pressure, there is no ona'ah in this, for the sages did not differentiate. Furthermore, he can say: "It is true that I am pressured, but it is a disgrace for me to sell my household utensils, and if they had not given me such a price, I would not have sold them." However, if a defect is found in the purchase, it is returned, for in this there is no difference between a homeowner and a shopkeeper. And there is one who says that this is specifically when the buyer knew that the seller is a homeowner selling his household utensils, but when he did not know, there is ona'ah, for since he did not know, he certainly does not waive his rights. And similarly, if the homeowner handed the object to a broker to sell it, there is ona'ah in it even when the buyer knew it belongs to a homeowner, for presumably when he handed it to a broker, he despairs of selling at a high price, for how would the buyer know it belongs to a homeowner? Therefore, even when he knew, there is ona'ah [Sma]. And some say that in this too there is no ona'ah, for perhaps the seller said to him, "Do not sell it for less than this price," and therefore when the buyer knew it belongs to so-and-so, there is no ona'ah in it [Taz]. And if the buyer did not purchase it himself but through a broker, there is ona'ah in it even when he purchased from the homeowner himself if the broker did not know the seller is a homeowner, even though the buyer knew [ibid.]. And even though a broker is an agent, and regarding an agent the transaction is retracted for any type of ona'ah as will be explained, it can be said that it deals with a case where he said to him, "You are my agent whether for benefit or for detriment," and his law is like the homeowner [ibid.], or that he did not inform that he is an agent [Netivot HaMishpat].

That which has been explained, that in one who sells his personal utensils there is no ona'ah when he overcharges the buyer, some say that this is specifically regarding a sixth, but regarding more than that, he is like any other person; for there is no logic at all that the buyer would waive even more than a sixth, and it did not enter his mind that the seller's intention would be to raise the price more than a sixth. And there are those who disagree and hold that there is no distinction. And there is one who holds that just as for the buyer there is no ona'ah when the homeowner overcharges him, so too if the homeowner was overcharged, he has no ona'ah, for we say that since he needed to sell, he considered and accepted to sell for less. And similarly, a person who bought a personal utensil for his home and was overcharged, there is no ona'ah in this. However, all the poskim disagree with this.

A seller and a buyer who agreed to finalize a transaction based on the appraisal of Levi, and he appraised it at a known sum, and it was found that he erred in his appraisal such that it contains the measure of ona'ah, it is subject to the law of ona'ah. For the intent was not to rely on Levi even if he says more than its value; on the contrary, the intent was to rely on him because he is an expert and knows the market value. And if it is impossible to return the ona'ah, such as if the one who overcharged went to a distant place: if Levi is a merchant and an expert in appraisal and did not receive payment for the appraisal, he is exempt. But if he took payment, he is liable, like an expert butcher who spoiled the meat, as will be explained in siman 306. And if he is not an expert and proficient, he is liable to pay even when he acted for free under the law of garmi, as is written there. And there is one who says further that, on the contrary, when they said "based on the appraisal of Levi" because he is an expert, the transaction is void even with ona'ah of less than a sixth, for his status is like that of an agent. But this is not implied by the Tur and Shulchan Aruch, and also from the perspective of logic it is not clear, for what is his connection to an agent?

An extortionist is not subject to ona'ah, as it is stated, "You shall not wrong one another [lit. a man his brother]," and an extortionist is not included in the category of "brother." However, if he wronged another, he must return the ona'ah according to the law of ona'ah. If an Israelite and an extortionist sold an object and there was ona'ah in it, and in a case where in the secular courts the extortionist is not liable for his portion, the Israelite must pay the entire ona'ah, for we maintain in the laws of damages that wherever it is impossible to collect from this one, one collects from that one, as written in siman 410 [Shach]. Similarly, if a defect was found in it, if the buyer cannot collect the extortionist's portion from him, the Israelite is obligated to pay the whole amount; and furthermore, because the buyer presumably relied only upon the Israelite alone. But if in the secular courts the extortionist is liable to pay his portion, but he is a man of violence and it is not possible to collect from him, the Israelite does not need to pay the portion of the extortionist [Netivot HaMishpat; and see Tosafot Bava Kamma 46b, s.v. "Galit," and examine it closely].

Our sages, of blessed memory, said [Bava Metzia 51b]: One who buys and sells on trust is not subject to ona'ah. How so? A seller who said to a buyer, "I purchased this object for such and such, and I wish to profit from it by such and such an amount," the buyer has no claim of ona'ah against him, for he understood and accepted that he would profit by such and such and did not rely upon the value of the transaction. And it is not similar to "on condition that you have no claim of ona'ah against me," where it was explained that there is ona'ah; this is because he relied upon the value of the transaction that he purchased from him for such and such, and presumably he thought that this is what it is worth, and the condition is not effective for the reason explained in section 22. This is not the case with one who buys on trust, who does not speak of the value of the transaction at all, but rather how much profit he will give him over what he paid; the seller does not transgress "you shall not wrong," for he does not deceive him and does not know at all that there is ona'ah in this. Therefore, even when it is discovered afterward that there is ona'ah in this, the transaction stands and he returns nothing to him. And likewise, if it is found that it is worth much more, the buyer returns nothing to him, for the seller also did not rely upon the value, but rather that he would profit such and such, and he has profited; what more does he need? However, if the seller knows that in truth he was defrauded in the transaction and it is not worth what he paid for it, it is simple that he is obligated to tell the buyer that there is ona'ah in this, and if he accepts it, he accepts it. For although a buyer on trust has no claim of ona'ah, this is when it is discovered afterward that it is not worth that much, but not when the seller knows beforehand that there is ona'ah in this; and you have no greater ona'ah than this. And thus the great Acharonim agreed [and the words of the Maharit brought by the Netivot HaMishpat are well-settled with this].

And it is not specifically a seller who said to a buyer, "I bought this object for such and such," where the buyer knows the price, but even a buyer who said to a seller, "For whatever you bought this object, I am giving you such and such profit," there is also no law of ona'ah in this. And even though we could say that since the buyer did not know at the time of the meshikhah for how much he bought it, it is like one who measured and did not fix a price, and this is not a kinyan at all as was written in siman 200, and furthermore that there should be in it at least the law of ona'ah because perhaps it did not enter the buyer's mind that the seller paid such a price, nevertheless the sale is valid and there is no ona'ah in it. For since the buyer did not go down to the value of the purchase but rather how much the seller will profit, it is called that he knew the price, and how much the seller paid he did not care at all [see Sma, subsection 46]. And most poskim agreed that even though in an amanah sale there is no law of ona'ah, nevertheless when a defect is found in it, the sale is void, for he only trusted him regarding the price and he understood and accepted, but not regarding a defect; and on the contrary, the essence of the trust is that he trusts him that the merchandise is good, and therefore he does not care about the price, but there is no ona'ah in it even in more than a sixth [Shach]. And Reuven who sold to Shimon and Reuven was defrauded in a manner that if he were to sue Shimon the sale would be void, but in the meantime Shimon sold to Levi without ona'ah, neither of them can void the sale with the claim that behold, Reuven will perforce void it; for nevertheless, as long as Reuven does not void it, they have no permission to void the sale, for perhaps Reuven will forgo his ona'ah [see Netivot HaMishpat in the explanations, subsection 19].

From what has been explained, we have learned that those commission agents who sit in the large places and purchase goods for the shopkeepers of the provincial towns and take a known profit, such as two or three percent, are not subject to a claim of ona'ah. For this is literally one who "buys and sells on trust," as the shopkeeper trusts him that he paid such-and-such for the goods and gives him a known profit for his exertion. And even regarding goods that the commission agent purchased before the shopkeeper notified him to purchase for him, nevertheless, the shopkeeper has no claim of ona'ah against him, since he trusts him that this is what it cost him and that he must profit such-and-such. And all the more so when he sent him a list to purchase for him, for he is nothing other than his agent. And even though, on the contrary, regarding an agent there is ona'ah even for any amount, nevertheless, this law does not apply in this case, for the shopkeeper knows that the large merchants do not accept the return of goods, and it was on this condition that he sent him to purchase for him. Therefore, it further appears to me that even if a hidden defect is found in a manner that it was impossible for the commission agent to see—such as a piece of goods that was short of the measure, or where the middle of the goods was not good or was rotten and the like—the shopkeeper has no claim against him. For it is known that the goods are placed in a wrapper and the merchant does not allow one to unpack it and inspect it in its entirety, so what was he to have done? And every shopkeeper "reasons and accepts" that it is impossible in any other way. Only regarding a visible defect, such as unpacked goods, if a defect is found, the responsibility is upon him. Similarly, regarding goods prepared at the commission agent's before the shopkeeper sent for him to send them to him, if a defect or deficiency is found, the responsibility is upon him. Likewise, the small shopkeepers who purchase goods in the warehouses on credit—granted that there is no law of ona'ah in this, but there is the nullification of the sale due to a defect. For granted that he does not deceive him regarding defects, nevertheless, he has no permission to deceive others, and the loss is upon him. Similarly, if the owner of the warehouse or the commission agent knows that in the goods prepared with him there is ona'ah in the prices, it is forbidden for him to sell to the shopkeeper on trust, and there is ona'ah in this. And know that one of the greats in the generation before us wrote at length to contradict all the words of the poskim in this, and in his opinion, according to the Rambam, of blessed memory, there is ona'ah regarding commission agents; and that which the sages said, that "on trust there is no ona'ah," this refers to the profit that he earns, and not to ona'ah in the essence of the goods. But his words were not accepted even in his lifetime, and so judge all the battei din, that there is no claim of ona'ah against the commission agent in the purchase. And there is no difference in one who "buys and sells on trust" between a merchant or a permanent shopkeeper and an occasional seller, and they have one law [and the essence of his words are contradicted by the Baraita: "He shall not calculate the bad on trust etc.," examine it closely].

Our sages, of blessed memory, said [ibid.] that one who conducts business based on trust should not calculate the bad items based on trust and the good items based on their value. For example, if one purchased ten pieces of merchandise for ten sela, each piece for a sela, and among them are good wares where each piece is worth more than a sela, and there are inferior ones worth less than a sela, and he purchased them in total at one sela per piece—he may not sell to another based on trust except for all of them together as he purchased them. It is forbidden for him to sell them individually, each piece for a sela based on trust and receiving a known profit; for how can he calculate for the buyer the inferior item at a sela, when he did not pay a sela for it except because of the good items that are worth more than a sela? Consequently, when he sells the good items, he will not sell them based on trust, for why should he do so? He will sell them according to their value, and you have no greater ona'ah than this. And even if he resolves in his heart to sell all of them based on trust, nevertheless, whoever buys the inferior items from him will be defrauded. Therefore, in such a case, he may not sell individually based on trust, but rather according to the value, and if there is ona'ah, the judges will adjudicate this according to the law of ona'ah, or he must inform the buyer of all this. If the buyer agrees to purchase the inferior items from him based on trust, he does so of his own will. Shopkeepers must be very careful in this when they sell to a householder based on trust and with a profit of such-and-such per hundred, as is sometimes customary among shopkeepers; this applies only to merchandise where he purchased each piece individually. But when he purchases many wares, it is unavoidable that there will be good and bad ones, as has been explained. All the more so, the commissioners who purchase for many shopkeepers must be very careful in this.

Our sages, of blessed memory, further said [ibid.] that one who sells based on trust is permitted to add to the price of the purchase the porterage fee that he paid for this merchandise to bring it, and the inn fee, such as if he delayed the merchandise for a period of time in some place and paid for the place, for all this is principal and he may include them in the price of the purchase. However, the fee for his own labor that he had in this, he is forbidden to calculate into the principal and he shall not add it to the price of the purchase; rather, he shall only take from him as he compromised with him, that he should give him such and such profit on the merchandise, for this is the fee for his labor. And all the more so is it forbidden for him to calculate interest on the money he gave for the merchandise. Therefore, a shopkeeper who sold to a homeowner based on trust may calculate into the principal the rent of the shop and other expenses of the shop. And how shall he calculate? For example, if the rent of his shop with expenses costs him one hundred sela per year, and during the year he sells merchandise for five thousand sela, it costs him two sela for every hundred; therefore, when he sells merchandise for a sela, he shall calculate onto the principal another one-fiftieth. And if he has servants in the shop, he shall calculate them also into the principal. And the commission agents in the large places shall not calculate onto the merchandise of the shopkeepers anything but the expense that accrued to this merchandise, but not his own expenses for food and the fee for lodging and the like, even if he has no other business besides commission. And such is the custom among merchants and one must not deviate. And they must be careful when they buy merchandise for the shopkeepers that they buy as they would buy for themselves, and they shall not say, "What is it to us if we pay a little more, for behold we are only taking according to the agreement," nevertheless, you have no greater theft than this.

Reuven gave merchandise to Shimon and said to him, "Sell it however you can and give me the money at such-and-such a time, and I rely upon you, and I will give you such-and-such for your labor or according to the custom," Reuven has no claim of ona'ah against Shimon to say that it was worth more. And likewise conversely, if he sold it for a high price, Shimon does not have the ability to say, "I will only give you its value" [Rashi explained: on trust]. And if Reuven had two types of merchandise, one fine for which there are many buyers and one poor which is difficult to sell, he may not say to him, "Behold, you have the fine merchandise at its value on the condition that you sell the poor merchandise for me however you can, and when you sell the poor one, then you shall give me the money for both types of merchandise," and he exempts himself from giving him payment for labor because he waits for all the money until that time, for this is like ribbit [ibid.]. Rather, he must give him payment for labor for everything that he sells, and then we have no concern regarding the waiting for his money. And he must give him payment for labor as is fitting, for if not so, there is still a concern that he labors for him because of the waiting for his money.

These are the things that are not subject to ona'ah: slaves, documents, lands, and consecrated items. Even if one sold that which is worth a thousand for a dinar, or that which is worth a dinar for a thousand, they are not subject to ona'ah. And all of them our sages, of blessed memory, derived from the verse as it is written: "And if you sell a sale to your fellow, or acquire from the hand of your fellow, you shall not wrong etc." And this refers specifically to movable property, a thing acquired from hand to hand, and not lands. Similarly, "sale" implies a thing whose essence is money, to the exclusion of documents which are only for evidence. And slaves are compared to lands. And consecrated items are not included in "his neighbor" and "your fellow." And now, all consecrated items and charities have the law of a commoner, as written in siman 95. And even though this is a decree of the Torah, nevertheless one can explain a bit of the reasoning: that a person sometimes acquires land for more than its value [Rashbam, beginning of chapter 4], and our sages, of blessed memory, called land a thing worth all silver [Bava Kamma 14b]. And similarly the opposite, when a person is in need of money and there is no buyer, he sells it for much less than its value, for it is impossible to move land from place to place. And similarly slaves, they have many deficiencies, and similarly the opposite, when one needs the slave he pays much for him. And documents that one needs to collect, which depends on the state of the time regarding the borrower and his strength, they are much reduced. And regarding consecrated items in the time of the Temple, since it is a decided law that a consecrated item worth a maneh that was redeemed for the value of a perutah is redeemed, therefore also in a sale, if the consecrated property was wronged, it is not ona'ah. And similarly if the buyer was wronged, it is obvious that he cannot retract, for a verbal statement to the Most High is equivalent to delivery to a commoner [Bava Batra 133b].

And some say that specifically up to a half there is no ona'ah, such as one who sold that which is worth ten for five or for twenty, but in more than a half it is ona'ah. And there is one who says that specifically until a half there is no ona'ah, but at a half itself there is ona'ah and the sale is void. And know that even though there is no ona'ah for all of these, the intention is not that it is permitted ab initio, Heaven forbid, to defraud; for one who knows that there is ona'ah in this, even in a perutah, it is forbidden for him to defraud, unless he says that it is worth more or less and it is not his will otherwise. Rather, this is the decree of the Torah, that when there was ona'ah, one does not void the sale nor return the ona'ah [Sma]. And regarding the matter of ona'ah in more than a half, there is one who decided like the previous opinion that there is never ona'ah [Shach at the end of siman 66], and some say that it is a legal doubt [Rashbam].

In all the laws of ona'ah that have been explained, it is only regarding the seller and the buyer themselves; however, the agent of a seller or of a buyer, and likewise an apotropos who erred and was defrauded even by any amount, whether in movable property or in land, the transaction is reversed. This is because the sender says to him: "I sent you to improve my situation and not to cause me loss," and there is no law of waiver here, for it is not within the power of the agent to waive. And if the agent defrauded the seller or the buyer, some say that the law is also thus, that the sale is void in any amount, so that the power of the sender should not be greater through his agent than the buyer or the seller himself. And some say that his law is like any person, since he himself was present at the time of the kinyan, and what does it matter to him if he bought from the seller himself or from his agent, or if he sold to the buyer himself or to his agent? Therefore, up to a sixth it is a waiver, and the sender merits the surplus and not the agent, as I wrote in siman 183, except in the case of an addition to a fixed price as I wrote there [it appears to me]. And that which we said, that an apotropos has the law of an agent, this is specifically when he sold not by the authority of a beit din, but by the authority of a beit din there is another law for this, and it was explained in siman 109.

Regarding the matter of ona'ah, the law of rental is like the law of sale, for rental is a sale for a duration. Therefore, one who rents an animal or vessels is subject to the law of ona'ah, such that less than a sixth is considered a waiver, and a sixth or more than a sixth—whether the renter was defrauded or the letter was defrauded—he must return the ona'ah. There is no law of nullification of the transaction in this case since the work has already been performed. If the work has not yet been performed, the rental is nullified at more than a sixth, like the law of nullification of a transaction [Sma]. There is no fixed time in rental for showing it to a merchant as there is in a sale; rather, even after a long time, he returns the ona'ah, for specifically in a sale is it the way of the world to show them, but not in rental [Maggid Mishneh chapter 13]. Similarly, it is not the way of a letter to investigate the rental to see if he was defrauded. Just as there is no ona'ah in the sale of land, so too there is no ona'ah in the rental of land. Therefore, if Reuven hired Shimon as a contractor to build him a house or to sow a field for him with Reuven's seed, if the ona'ah was in the price, there is no ona'ah for lands. Similarly, if one rented land or a house, there is no law of ona'ah in this, even if it is worth more or less—even if he rented a large palace for a dinar per year or a cattle stall for a dinar per day, there is no ona'ah for this. According to the "some say" in section 35, until half there is no ona'ah. If, in a rental to sow a field, the ona'ah was in the quantity of the sowing—for example, if he said, "I sowed much seed in it as is appropriate for this land," or "I sowed a sowing appropriate for this land," and witnesses came and testified that he sowed little seed and therefore it was spoiled, or that he sowed a sowing that is not appropriate for this land—this is a legal doubt whether there is ona'ah for this because of the seeds which are movable property, or if there is no ona'ah for this because of the land. Therefore, we do not extract [payment] from the hand of the defendant. If they hired him with the renter's seed and he was defrauded in the price of the seed, some say that its law is certainly like movable property, and some say there is no difference since ultimately it was attached to the land [Netivot HaMishpat]. Similarly, if there is an obligation of an oath in this—for example, if the owner of the land says that he delivered to him six measures for sowing and he says that he received from him only five—we only administer a hesset oath because of the land involved here, for one does not swear a Torah oath regarding lands, as I wrote in siman 95. Just as there is no ona'ah for land whether in a sale or in a rental, so too regarding slaves. And even if one hires a Jewish laborer to work with him for a duration, whether he works with land or with movable property, there is no ona'ah for this because this is like purchasing his body for a duration, and a slave is not subject to ona'ah. Although only a Canaanite slave was compared to land, nevertheless, one who hires himself out as a laborer has the status of a slave applied to him [Sma and Shach]. If he hired a laborer together with a horse, even though from the perspective of the laborer there is no ona'ah, from the perspective of the horse there is ona'ah. We estimate what portion of this rental goes toward the hire of the horse, and whatever ona'ah occurred in that portion must be returned. We do not calculate the entire ona'ah upon the laborer, for we must estimate according to the custom of hiring [Gra]. Whatever ona'ah exists in the total will be calculated upon the person and upon the horse proportionately, and they shall see how much ona'ah there is in the horse and judge it with the law of ona'ah. However, a contractor for movable property is subject to ona'ah—for example, if he took it upon himself to weave this garment or to sew this garment for ten zuz, there is ona'ah, for he does not have the law of a slave when he is not a daily laborer. Each of them, when defrauded—whether the contractor was defrauded or the owner of the garment was defrauded—may always retract if he was defrauded. When the work is completed, they return the ona'ah to one another. If the defrauded party is satisfied and does not seek his ona'ah, even the defrauder cannot retract, even before the completion of the work, just as with a buyer and seller. Regarding a contract to build a house, it appears to me that there is no ona'ah for this, for it is like land.

Brothers who divide their inheritance and partners who divide are judged as purchasers, since each of them has a portion in the whole; it follows that in that which they divide, an object against an object or land against land, behold each one is like a purchaser of his fellow's half in exchange for his own half that he gives him from the other object or the other land. Therefore, regarding movable property: if the ona'ah was less than a sixth, the purchase is acquired and he returns nothing; more than a sixth, the purchase is void; a sixth, he has acquired it but must return the ona'ah. And if they divided lands, even if they appraised that which is worth a maneh for a dinar, or that which is worth a dinar for a maneh, it stands. According to the "there are those who say" in section 35, only up to half is there no ona'ah. And if they misled one another in measure, weight, or number, even in the slightest amount, they retract, for such is the law regarding purchasers as well. And if they appointed an agent to divide between them and he erred even in the slightest amount, the division is void, according to the law of an agent as explained in section 36. And if they divided by the authority of a beit din, or they stipulated between themselves that they would divide according to the appraisal of judges, and they erred by a sixth, the division is void, for judges who reduced or increased by a sixth, their sale is void, as written in siman 109. And know that from what has been explained in this section there is proof for what I wrote in section 21, that in an exchange based on appraisal, all movable property is subject to ona'ah; for according to the first opinion there, it must be said that it only deals with produce, yet it does not seem so from all the poskim, but rather that it deals with all movable property and they were particular about the equality of the appraisal as is the way of all divisions. Also from the Gemara it is explicitly implied that it deals with all movable property, since the Gemara distinguishes between movable property and lands [see Kiddushin 42b, and the words of the Netivot HaMishpat require further study]. Similarly, if an error is found in the division, the division is void, as in the incident that occurred with Reuven and Shimon, brothers who divided on the condition that whoever receives a certain house shall open for himself a doorway to the alleyway, and they did not take to heart that the residents of the alleyway could prevent him. That house fell to Reuven, and the residents of the alleyway did not allow him to open a doorway to the alleyway. The Rosh, of blessed memory, ruled that if Reuven wishes to void the division, he has the right to do so. Not only that, but even if Shimon says "I will work with the residents of the alleyway so that they give you permission to open a doorway," Reuven can say "I do not wish to acquire for myself a dispute regarding the opening of the door." Furthermore, since at the time of the division there was an error, as they thought they had the ability to open a doorway, the division was fundamentally in error and the division is void. And so too regarding any type of error found in the division, or any defect found in the portion of one of them, the entire division is void.

One of the great authorities ruled that this law, that a partner is subject to ona'ah, applies specifically when he is a partner in the essence of the merchandise. However, when he has no portion in the essence of the merchandise, but rather the owner of the merchandise promised to give him a portion of the profit when he sells the merchandise, and he has no portion in the loss, and he sold his portion of the profit, the law of ona'ah does not apply to this since he has no portion in the essence of the merchandise [Maharit]. And there was an incident involving one who showed gold to a goldsmith to purchase if the goldsmith would say that it is good, and he promised to give the goldsmith half the profit as his wage, and the goldsmith said to him that it is gold, and afterward it became clear that it was copper. And there is one who wanted to obligate the goldsmith based on what was written in siman 306 regarding butchers who take a wage for the kashrut, that he is a shomer sachar and is liable if he rendered it nevelah, even though he takes no wage for a tereifah; nevertheless, since if it were kosher he would have taken a wage, his law is like a shomer sachar. And here too, since if it were gold he would have taken a portion, his law is like a shomer sachar and he is liable for his error, as this error is like the liability of theft and loss, as in the case of one who shows a dinar to a moneychanger and it is found to be bad, as was explained there, that for a wage he is liable even if he is an expert. But they disagreed with him, that the goldsmith is exempt and his law is not like a shomer sachar but rather like a shomer chinam. For specifically regarding a butcher, if he had not rendered it nevelah it would have been kosher and he would have taken a wage, therefore even when he rendered it nevelah and takes nothing, his law is like a shomer sachar since it was in his power to take a wage. But this goldsmith, had he observed well, he would have seen that this is copper and it would not have been in his power to take a wage at all, and therefore his law is only like a shomer chinam. And if he was an expert and proficient, he is exempt, as in the case of one who shows a dinar to a moneychanger for free [Ktzot HaChoshen and Netivot HaMishpat].