When Halacha Changes...

How an entire category of Torah law actually fell out of practice due to changing economies

Here’s where I’m going to follow up on the questions I asked in my recent post on halachic limits to retail pricing. As you may recall, I described some of the complexities of the retail sheitel industry and discussed how figuring out the going rate for any particular item can be challenging.

Long story short: the answer to all those questions is “Never mind”. You can, as a rule, charge whatever you like. Besides a very small number of fringe cases, there are effectively no halachic restrictions or limits on retail pricing.

But what happened to the explicit and binding mitzva framework of ona’ah (Vayikra 25:14) where retail transactions whose prices diverge from the going rate were automatically annulled? Well that’s a very interesting discussion.

A good place to begin is with the Bais Yosef (Choshen Mishpat 209) who ruled that ona’ah restrictions only apply where the general market rate was known at the time of the transaction. This would seem to be significant, given how product pricing in market segments like the sheitel industry is - at best - obscure.

Despite the fact that the Bach, Darche Moshe, and others disagreed - claiming that litigants could, after all, always clarify rates after the fact - the approach of the Bais Yosef seems to have enjoyed sustained historical popularity. Later authorities, including R’ Asher Weiss (שו"ת מנחת אשר ח"ג סימן ק"ז), suggested that any individual has the right to rely on the Bais Yosef, even in the face of the strong majority opinion.

In fact, however, even the larger halachic literature records doubts over cases where figuring out the going rate is complex. R’ Weiss quotes the Aruch Hashulchan (Choshen Mishpat 227:7) observing how there’s often no set price for many items, since contemporary retail businesses sell at wildly varying prices for often obscure reasons.

R’ Weiss himself adds that, taking into account supply and maintenance costs - along with variations in market size and business scale - it’s likely that even those who originally opposed the Bais Yosef would agree in the context of sophisticated global markets where the market rate can never be known.

And even though Dayan Vosner (שבט הלוי ה סי' רי"ח) noted how clear pricing can be found for items mass-produced in large factories, the sheitel industry seems to be a good illustration of how that kind of price stability is probably the exception rather than the rule.

R’ Weiss, in defending his opinion that ona’ah is now rarely applicable, adds that, in our generation, there might also be a kind of universal consent, where everyone implicitly agrees to follow the general rules of the marketplace even in the face of a theoretical conflict with halacha.

He does however agree that an obvious and extreme pricing abuse would likely fall into the category of theft, and should be dealt with appropriately.

It’s not that the Jewish establishment is ignoring the ona’ah laws as part of some dark capitalist conspiracy. And it’s not that we wouldn’t all benefit from greater price stability and visibility. But the structure of the modern business world in this, and previous centuries simply isn’t a match for this particular framework.

Are there any other parallel “orphaned” halachos you can think of?