ONA'AH ("overreaching"):

(Redirected from OVERREACHING.)

By: Executive Committee of the Editorial Board., Lewis N. Dembitz

Term applied to the sale of an article at so much more, or to the purchase of an article at so much less, than its market value that fraud or the taking of an undue advantage is presumed. Were not ona'ah thus construed in the Mishnah (B. M. iv. 3-9), "oppression" would be the more suitable term; where ona'ah is transferred from business to social conduct (B. M. iv. 10) "wronging" is the fittest translation. In Lev. xix. 33 and xxv. 14 the Authorized Version's renderings of the verb from which this noun is derived and on which the doctrine is based are "to vex" and "to oppress"; the Revised Version renders it "to wrong."

I. Overcharge or Underestimate.

The doctrine of ona'ah answers to the "læsio major" of Roman law. But while such "læsio" in that law covered much broader ground, it interfered only when the disproportion between price and value exceeded two to one. In Jewish law a discrepancy of one-sixth enabled the wronged party to secure the cancelation of the sale or purchase; that is, an article worth six money-units in the market may not be sold for seven or bought for five (B. M. 49b). It seems that overcharge by the merchant selling to the consumer was the most frequent instance in which the application of the rule was called for; the claim had to be made as soon as the buyer had had an opportunity to show his purchase to a merchant or to one of his friends. It is said that R. Ṭarfon taught at Lydda that the discrepancy must amount to one-third to justify an action, whereupon the merchants rejoiced; but when he extended the time for rescission to the whole day they demanded the restoration of the old rule.

Either seller or purchaser, whether merchant or one in private life, may make the complaint, notwithstanding the opinion to the contrary of R. Judah ben Ilai. The purchaser imposed upon may ask either for rescission of the transaction or for the return of the excess paid by him.

In the case of changing money it was suggested that a lack in weight of even one in twelve should be sufficient ground for complaint, but the prevailing opinion fixed here also the ratio of one in six. Within a great city the time for complaint extends until the money in question can be shown to a money-changer; in villages, where no money-changer is to be found, until the eve of the Sabbath, when the party deceived is apt to tender the coin in payment for his purchases.

Exceptions.

The smallest amount for which a complaint of overreaching can be brought is one-sixth of a "sela'," or shekel, though a suit over a smaller amount may be instituted on other grounds. The rule as to overreaching by an excess or deficiency of one-sixth does not apply to the sale or purchase of slaves, of bonds for money, or of real estate; the proposition of R. Judah to except also books of the Law, pearls, gems, and cattle, on the ground that they have no fixed market value, was not adopted, the former exceptions alone being sanctioned by tradition. It has been shown under Appraisement that in judicial sales of land an effort was made to sell within one-sixth of the market value.

Where the seller distinctly and truly states what the goods are worth, or what they have cost him, and how much he is charging for his profit, he can protect himself against the claim for overcharge; the buyer can do the same by admitting the true value of the goods for which he is offering an inadequate price (B. M. 51b). Thus the law of ona'ah is a protection against fraud only, not against open extortion; but a mere stipulation against the law of ona'ah without a true statement of value or cost is unavailing (B. M. 51a). It is said that a householder who sells some of his own household goods may charge more than their market value, as they have for him a sentimental value of which the buyer is supposed to be aware (ib.).

In the mishnah dealing with ona'ah nothing is said of the nature or origin of the "sha'ar" or market price. But from Baba Meẓi'a (v. 7), where the usury law and the different ways of evading it are discussed, certain bargains are said not to be closed "till the 'sha'ar' comes out," that is, until the price of the grain or other produce for that season is fixed. It seems, therefore, that the market price was in some cases at least set by public authority, probably after the character of the year's harvest became known (comp. Hammurabi's code, § 51). But that an official tariff of market prices was not always made among the Jews under Talmudic influence appears from the discussion among Babylonian amoraim, reported in B. B. 89a, on the propriety of appointing officials to set the market price for leading kinds of goods, like officials for inspecting weights and measures; for the tone of the discussion shows that the practise was not approved.

II. Ona'ah in Words.

In another section (B. M. iv. 10) the Mishnah proceeds: "As there is 'wronging' in buying and selling, so there is 'wronging' in words; a man may not ask, 'What is this article worth?' when he has no intention of buying; to one who is a repentant sinner it may not be said, 'Remember thy former conduct'; to him who is the son of proselytes one may not exclaim, 'Remember the conduct of thy forefathers'; for it is said, 'Thou shalt neither vex a stranger, nor oppress him'" (Ex. xxii. 21). In a baraita (B. M. 58b) which follows this section the subject is further developed. "When a proselyte comes to study the Law one should not say, 'He that ate the meat of fallen or torn beasts, of unclean and creeping things, now comes to study the Law that was spoken by the mouth of Omnipotence!' When trouble or sickness comes upon a man, orwhen he has to bury his children, none should say to him, as Job's friends said to Job, 'Where is thy fear of God, thy trust, thy hope, and the innocence of thy ways?'" The baraita forbids also practical jokes. "If ass-drivers come to one for fodder, one may not send them to N. N. to buy it, knowing that N. N. never sold hay or grain in his life."

On the authority of R. Simeon ben Yoḥai, it was said that wronging by words is worse than wronging in trade, for the Scripture as to the former, but not as to the latter, commands, "Thou shalt fear thy God": R. Eleazar says, because one injures the man himself, the other affects only his property; R. Samuel b. Naḥman says, because in one case there is opportunity for restoration, in the other there is not. The Talmud then dwells upon the unpardonable sin of "blanching the face of one's neighbor in public," and closes with the admonition that under all circumstances a man should beware of "wronging" his wife, because her tears are ever ready to accuse him before the throne of God.

E. C. L. N. D.