Mr. Weiss was looking forward to a weekend getaway with his family. He found a beautiful vacation home in a scenic area and quickly arranged to rent it from Mr. Stein for $2,000.
“It’s a prime location,” Mr. Stein assured him. “You won’t regret it!”
The home was indeed lovely, and the Weiss family enjoyed a relaxing and refreshing Shabbos. The fresh air, spacious accommodations, and peaceful surroundings made it feel well worth the trip.
On Sunday morning, however, Mr. Weiss struck up conversations with a few neighbors and fellow vacationers. Casually, the topic of rental prices came up.
“How much are you paying?” one person asked.
“$2,000,” Mr. Weiss answered. The others exchanged surprised glances.
“That’s quite high,” one remarked. “Most homes around here go for $1,200 to $1,300 for the weekend.”
Mr. Weiss was taken aback. He quietly inquired further and discovered that all comparable homes in the area were renting for under $1,500.
By the time Mr. Weiss headed home, his satisfaction had dimmed. While the stay had been pleasant, he felt that he had been cheated.
Upon returning home, Mr. Weiss called Mr. Stein.
“I did some checking,” he said. “It seems the going rate for similar homes is much lower. Charging $2,000 is a violation of ona’ah (unfair pricing)! I plan to deduct $500 from my payment.”
“You agreed to the price; whether others charge less is irrelevant,” Mr. Stein responded firmly. “You have no right to withhold from the amount we agreed upon!”
The two agreed to turn to Rabbi Dayan, and asked:
“Can Mr. Weiss withhold some of the stipulated rental fee?”
“The Mishna (B.M. 56a) teaches that the Torah excludes real estate from claims of ona’ah,” replied Rabbi Dayan. “Rental of real estate is also excluded” (C.M. 227:29, 32).
“Thus, seemingly there is no halachic basis for Mr. Weiss to deduct partial payment from the rental fee that he agreed to.
However, the Gemara (Arachin 29a) teaches that although declaration of real estate as cherem, a type of consecration, applies only when yovel exists – cherem applies to real estate outside of Israel even nowadays, because it is considered like moveable property.
Similarly, Tur (C.M. #95) cites from Sefer Haterumos (7:2:13) an opinion in the Geonim that although the Torah excludes real estate from d’oraysa oaths, real estate outside of Israel is subject to d’oraysa oaths like moveable property. The rationale is that real estate outside of Israel is not a permanent acquisition like heritage land in Israel, and intended for resale. This opinion would presumably rule similarly regarding ona’ah.
This extension to oaths and ona’ah is rejected, though, by the Shulchan Aruch and almost all authorities (C.M. 95:1; Sma 95:2). They distinguish between cherem, which is specifically connected to yovel, to which real estate outside of Israel is not subject, and all other laws of real estate, which are not linked to yovel and apply even outside of Israel.
Nonetheless, Rav Chaim Benveniste, author of Knesses Hagedola, suggests in his Responsa that when the person is muchzak (in possession of the money or property), he can claim kim li (a halachic claim to follow a minority opinion in monetary matters to maintain possession) to follow those Geonim (Responsa Ba’i Chayei C.M. 1:153, cited by Divrei Geonim 5:16).
However, in Knesses Hagedola (Hagahos HaTur 227:57) he concludes that the accepted ruling is against those Geonim. The consensus opinion as well is that one cannot claim kim li, since the Shulchan Aruch clearly ruled against these Geonim, and the accepted ruling for centuries is to exclude all real estate from d’oraysa oaths and claims of ona’ah.
Mishpat Shalom (227:29) further adds that nowadays, since ba’avonoseinu harabim, the exile has extended so long, and Jews purchase freely everywhere, even those Geonim would agree that also property out of Israel has the status of real estate regarding oaths and ona’ah.
Thus, Mr. Weiss cannot withhold from the rental fee stipulated.
“I must add, though,” concluded Rabbi Dayan, “that although real estate is excluded from ona’ah claims, several Rishonim maintain that there remains a prohibition of ona’ah to misleadingly overcharge grossly” (Pischei Choshen, Ona’ah 10:3[5-6]).
Verdict: The Torah excludes real estate, also rentals, from claims of ona’ah, but several Rishonim maintain that there remains a prohibition. The opinion of some Geonim that real estate out of Israel is considered like moveable property and therefore subject to ona’ah is rejected by the poskim, and one cannot claim kim li.