By Rabbi Yair Hoffman
I was alerted yesterday to the fact that due to what was likely an error, one could purchase round-triptickets on El Al from JFK to Israel for under $400. This is perhaps 1/3 of what the price should be.
El Al has caught on to the error and fixed it, but in the meanwhile many people were able to take advantage of the error and purchase tickets.
El Al has acknowledged that this was an error, but is bound by law to honor the tickets.
Was it permitted to take advantage of this error?
Are those who purchased tickets obligated to offer to return them to El Al?
In general, once one knows that an item is obviously mispriced, is one allowed to take advantage of that error and purchase additional items, knowing that the vendor will either not know about it or will be compelled by law to honor the price?
If I see that a vending machine says that a can of soda is priced at $1.25 and dispenses a can after I put in $.25, am I allowed to put in more quarters so that I can buy more cans? (Even if we assume that I do not have to return the first can, where I had intended to pay full price, does that mean that now that I know that the machine is mis-programmed that I can buy as many more as I like?
GENERAL CONCEPT OF ONAAH
We do find a concept in Halacha called Onaas Mamon. This concept, found in chapter 227 of the Choshain Mishpat section of the Shulchan Aruch, invalidates a sale when the price is either 16.7 % above or below the market value of the item. Although landed properties would be excluded from this law, it does apply both to movable properties as well intangibles, such as a ticket.
DEBATE BETWEEN BAIS YOSEPH AND SHACH
The halachic authorities debate as to whether the law is applicable when there exists a range of prices and no set market value (See Bais Yoseph CM 209 who says there is no Onaah in such cases while the Bach and Shach state that there is, nonetheless). At first glance, it may seem that even though secular law may dictate that the sale is valid (we will find out if this is true shortly), there may be an halachic obligation to undo the sale. Rav Vosner in Shaivet HaLevi Vol. V # 218 concludes that there is Onaah when there is no set price in the market, in accordance with the aforementioned Shach and Bach.
The way airlines price tickets though, deserves a bit of scrutiny. A certain percentage of tickets are set aside to sell at a certain price. Another percentage are sold at a higher price. The system is continued until the very last tickets are sold at a very high price. One could argue that this pricing structure in and of itself knocks out airline tickets from falling under the category of Onaah, and this, in fact, is the position of a number of Poskim.
THE NOTION OF KIM LI TO RULE LIKE BAIS YOSEPH
There is also an important concept called “Kim Li k’hanee Poskim” which in essence states that,when holding on to the moneys or items already (Muchzak) a person has the right to say, “I know that the law is in accordance with the Poskim that hold X (See Beis Shmuel CM 68:19).” In this case, the purchasers of the Dan’s Deals can say that, in their view, the law is in accordance with the Beis Yoseph.” While one cannot utilize this principle before one has the bought ticket in hand in order to permit the purchase, after one has done so there is no obligation to undo the deal.
OTHER FACTOR TO SAY NO ONAAH
There is another argument, although perhaps not a strong one, that the laws of Onaah do not apply in this case. Rabbi Yoseph Shaul Nathanson, author of the Shoel UMaishiv (Edition IV 3:137) rules that something sold publicly in an auction is not subject to the laws of Onaah. A website would probably have the same status on account of the public nature of the sale (see his arguments in the responsa to understand the correlation).
BUT WHEN THERE IS A GENUINE ERROR
While there may be great debate as to whether there is or there isn’t a notion of Onaah where there are no set prices and no official market price, some authorities are of the position that it doesn’t matter, and when there is a mistake in the pricing – it is to be considered Onaah -regardless (See, for example, Pischei Choshain Vol. IV p. 300 paragraph 4 “Uv’chol haOfanim.”) This last point would negate both of the above arguments.
IS THIS PART OF THE PRICE?
There is a third factor, however, which may be very pertinent here. If one looks closely at this particular sale, the price of the ticket was not, in fact, below market. The reason why the total cost of the ticket was so much lower than usual was the fact that the fuel surcharges were not included in the pricing. When someone does not charge an additional fee that is not part of the sale, but rather is construed as an extraneous cost, not charging it would not negate the sale (See Responsa of the Rosh 13:20 for a similar issue).
The situation may be analogous to a store that charges an entrance fee and then makes sales. If the store owner appointed a person who did not collect the entrance fee and the person did not sneak in, there would be no obligation for the purchaser of the item to pay that entrance fee.
While some may argue that the fuel surcharge is an accounting device, the fact is that technically it appears to be legally construed as an extraneous fee.
Why do they charge these surcharges? Travel experts list a number of reasons:
1] So they can charge travelers for allegedly “free” frequent flier awards and companion tickets with part of the fare.
2] To make their fares appear much lower than they really are.
3] So they can lower the fare basis on which they pay commissions to travel agents.
4] So they can circumvent the law and raise the fares on routes where fare increases still need some sort of outside approval.
In the United States itself, domestic carriers are not allowed to have these two separate fees, but international carriers are allowed to do so It is this author’s view, the fact that it is technically not part of the sale itself, has implications both ways too – and one would not be forced to undo the deal from a halachic perspective.
The case of the vending machine would be very different because the moneys placed in the machine facilitate the sale of the item itself. It would be forbidden to take advantage of that situation, where the machine is giving drinks for 25 cents instead of the regular cost.
GOING BEYOND THE LETTER OF THE LAW
Is there an obligation of going beyond the letter of the law here and return it anyway?
It is this author’s opinion it is recommended that one go beyond the letter of the law when there are individuals who would undergo financial distress in such circumstances. Here, however, each individual should make the choice himself.
The author can be reached at firstname.lastname@example.org