Mr. Lerner was discussing the Business Weekly at the Shabbos table with his family. One of the articles addressed onaah, unfair pricing, and distinguished between discrepancies of less than a sixth, a sixth, and more than a sixth.
“How do you calculate a sixth?” his ten-year-old son, Shimon, asked.
“You learned that already,” replied Mrs. Lerner. “You divide by six; that’s a sixth.”
“A sixth of what, though?” asked their fifteen-year-old son, Moshe.
“I assume it means a sixth of what the item should cost,” replied Mr. Lerner. “For example, if something costs $60, a sixth is $10 extra.”
“Or maybe it should mean a sixth of what the customer paid?” asked Moshe.
“Maybe,” replied Mr. Lerner. “I’m not sure if there’s really a difference.”
“Perhaps a sixth really means a fifth,” chimed in their 18-year-old son, Menachem. “We learned that in various halachos, such as redeeming maaser sheini, a fifth mentioned in the Chumash is really a quarter, which is 1/5 of the total sum received after adding the 1/4.”
“You’re raising good questions!” Mr. Lerner complimented his children. “We can ask Rabbi Dayan!”
After Shabbos, Mr. Lerner emailed Rabbi Dayan and asked:
“How do we calculate a sixth?”
“The simplest calculation is a 1/6 variance from the fair market value, whether underpayment or overpayment,” replied Rabbi Dayan. “Thus, for an item worth $60, a sales price of $50 or $70 – a variance of $10 – is considered 1/6 onaah and warrants adding the $10 underpayment or returning the $10 overcharge (C.M. 227:2).
“Rav and Shmuel (B.M. 49b) dispute whether to also calculate a sixth of the payment. The halacha is like Shmuel, that this is also considered 1/6. Thus, if a person paid $60 for an item worth $50 or worth $70, this is also onaah of 1/6 since the $10 differential is 1/6 of the amount paid.
“Mathematically, this corresponds to a 1/5 overpayment of value (e.g., $60 for a $50 item) or a 1/7 underpayment of value (e.g., $60 for a $70 item).
“Thus, for a $60 item, presumably a payment of $51.43 or $72 would also be considered 1/6 underpayment or overpayment, respectively, since the differential of $8.57 or $12 from the $60 value is exactly 1/6 of the $51.43 or $72 paid.
“This dual calculation led the poskim to a dilemma. As mentioned, whether a person paid $70 or $72 for a $60 item, this is considered an exact 1/6 variance – in which case the sale is valid, but the aggrieved party can claim the $10 or $12 differential. However, what if the person paid $71? From the perspective of fair value, this is a differential of more than a sixth (11/60), in which case the aggrieved party can annul the sale, whereas from the perspective of payment, this is a differential of less than a sixth (11/71), which is considered mechilah!
“Rambam and Rema (227:3) write that, as a rule, we calculate based on the value, so that – for a $60 item – $51 is considered less than a sixth differential and $71 more than a sixth. Only when the differential is exactly a sixth of the payment ($51.43 or $72) do we make an exception and consider this also a sixth (Sma 227:11; Taz 227:3; Ketzos 227:2).
“However, Maggid Mishneh and seemingly Shulchan Aruch rule that the entire range, $50-$51.43 or $70-$72, is considered a sixth, so that only a payment of more than $51.43 is considered a differential of less than 1/6, and only more than $72 is considered a differential of more than 1/6 for a $60 item (Sma 227:5; Pis’chei Choshen, Onaah 11:6).
“This discussion is mostly theoretical, though,” concluded Rabbi Dayan, “since there are very few items with a specific fair market value that enables us to determine an exact 1/6. Almost all items have a price range, so that only a great discrepancy would invoke onaah.”
Verdict: In the laws of onaah, unfair pricing, a discrepancy of 1/6 is calculated primarily based on the fair value of the item, but also based on the amount paid.
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This article is intended for learning purposes and cannot be used for final halachic decision. There are also issues of dina d’malchusa to consider in actual cases.
