Ona'ah on Land

Bava Metzia (4:9) | Yisrael Bankier | 12 years ago

In the fourth perek we learnt about ona’ah. In respect to business transactions this refers to fraud. More specifically we have learnt that if a product is over-priced or under-priced beyond a sixth of the value then the acquisition is reverted. If it is equal to a sixth then the margin is returned. Anything less, the difference is considered accepted by the parties. The Mishnah (4:9) however teaches that there are a number of items regarding which the laws of ona’ah do not apply. One of those listed is land.

The laws of ona’ah are derived from the following pasuk (Vayikra 25:14): “When you make a sale to your fellow or make a purchase from the hand of your fellow, do not aggrieve one another.” The Beraita (56b) learns that the specific mention of “a purchase from the hand” excludes land from the laws of ona’ah

The Ramban (ad loc) however notes a difficulty with this explanation. The above-cited pasuk is part of the section that discusses law that every fifty years (yovel) all land is returned to their original owners. According to the simple meaning of the pasuk, it teaches that one should not disobey the instruction of the next pauskthat when land is sold, the price must be adjusted according to the number of years remaining till the yovel year. The Ramban also cites other laws that the Chachamim derive that relates to land. It is therefore surprising that our Gemara learns that due to the reference “from the hand” that this pasuk does not refer to land.

Consequently we are forced to understand this pasuk independent of the pasuk that follows and only refer to movable objects (metaltelin). With that in mind and not dismissing the context entirely, the Ramban understand that while the technical laws of ona’ah (as described above) only apply to metaltelin, the prohibition of ona’ah applies equally to land as well. We can therefore understand the wording and placement of the pasuk. “When you buy” is written in plural referring to both metaltelin and land, “or make a purchase from the hand or your fellow” which is written in the singular referring to metaltelin, “do not aggrieve” which is written in the plural referring to both. 

The Mishneh Le’Melech (Malveh Ve’Loveh 4:1) however understands that the Tosfot maintains that there is not prohibition of ona’ah at all with respect to land. The Gemara (61a) addresses why separate prohibitions were required for ona’ah, interest and theft and why they could not have been derived from one another. The Tosfot there ask why the Gemara could not have answered that theft could not have been learnt from ona’ah since the prohibition of theft applies to avadim whereas ona’ah does not. Now since the Gemara connects avadim and land and the discussion in that Gemara is about the prohibition, the Tosfot must understand that no prohibition of ona’ah applies to land.

The Sema (227:51) however presents a different approach. He explains that with respect to land there is not transgression of ona’ah. That is however with respect to monetary ona’ah. We have however learnt about another form of ona’ah – ona’at devarim. This is learnt from the pasuk (Vayikra 25:17): “Each of you shall not aggrieve his fellow…” We have learnt (4:10) that this is transgressed by, e.g. one who asks the price of an object without have any intention to buy it. The Sema understands that one who unfairly prices land will certainly have transgressed this prohibition. 

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