Deceptive business practices and geneivat da’at Rabbanit Debbie Zimmerman

Prefer to see for yourself? You’re invited to open the source sheet on Sefaria, learn, discuss, and then return for our teshuva. What would you answer?

First I would like to commend you. It’s said that Rabbi Yisrael of Salant was upset that people would often come for questions bein Adam la’Makom (between a person and God), but comparatively few would ask about interpersonal mitzvot. Your question shows that you understand that sometimes shortcuts that are possible from a business perspective are not permitted from a halakhkic one, which is unfortunately not clear to all.

There are a number of aspects to your question. There are halakhot that prohibit vendors from deceiving potential customers about the product – part of this concerns geneivat da’at, which you mentioned, but in business there is also the concern of ona’a or hona’a, exploitation.^[1] Your question makes it clear that you are careful with your halakhic observance, and it’s therefore important that you understand the basics of these laws in general, as well as the specific answer to your question.

Ona’a

Ona’at mamon – exploitive business dealings

Halakha prohibits two types of ona’a – ona’at mamon, financial exploitation through price gouging or misrepresentation and ona’at devarim, verbal abuse or exploitation, which is defined as speech that harms another. When discussing selling land for the duration of time until the Jubilee year the Torah teaches, “A person may not exploit their brother… A person may not exploit their fellow, and you shall fear/revere your God, I am the Lord your God.”^[2] In certain circumstances ona’at mamon may require returning the price difference and can even invalidate the transaction.

Aruch HaShulkhan has a slightly different distinction, based on his understanding that ona’a is a form of gezeila, theft. Ona’a b’mekach is any time the sale price does not match the market price, whether one of the parties misrepresents the product or the market price, and ona’a about any aspect of the product, such as quality or source – even if this deception does not affect the price.^[3] As we will see, the latter is generally considered a form of geneivat da’at. The overlap between the two is sometimes unclear, depending on one’s definition of ona’a.

When does a business transaction violate ona’at mamon?

The minimum value of ona’at mamon is one pruta, and this applies to both the seller and buyer equally.^[4] The rabbis discuss the halakhic repercussions of a difference of a shtut, ⅙, between the market value and sale price, and there is some question if a difference of less than ⅙ is also prohibited.^[5] Based on the Rosh there are some authorities who rule that people who are God fearing should also be careful about differences of less than ⅙ – not to profit from such a discrepancy, but also to forgive anyone who profits off them for under ⅙.^[6]

Ona’a applies to both sales and rentals, as rentals are temporary sales. Halakhic authorities dispute whether it applies to mikarka’in – land or real estate. Based on Chazal, Shulchan Aruch rules it does not apply to land.^[7] Ramban claims that the concept “there is no ona’a regarding land” means that ona’a does not invalidate the sale and the price difference does not have to be returned, nevertheless, there is still a prohibition.^[8] In any event, ona’a applies to renting objects, and Smag explains that anything that is not attached to the ground is considered an object – so even though the apartment itself is land, the items inside that are rented for use are definitely subject to ona’a.

People generally rent vacation apartments based on pictures, descriptions, and reviews, and much of these reviews discuss cleanliness. Many people will pay significantly more for places that are highly rated or described as especially clean. If an apartment is filthy the value is significantly diminished, perhaps enough to be considered ona’at mamon of a ⅙ or more.

What if the apartment isn’t filthy but doesn’t seem clean? Or the host cuts corners when cleaning? Many people would assume that there’s no issue of ona’at mamon in this case because duvet covers that have not been freshly laundered would not affect the price for ⅙ of the difference in price, or because they consider this to be foremost a real estate issue. But we saw, Rosh rules any price difference of more than a pruta violates ona’at mamon, even if it doesn’t invalidate the sale or have to be repaid. Even if we don’t accept the Rosh’s ruling, we saw that Aruch HaShulchan maintains that any misrepresentation of a product’s quality is a violation of ona’a.^[9] Aruch HaShulchan also rules ona’at mekach applies to contractors who are hired to do a specific job – which could apply here when the host is in essence contracted to clean the accommodations, and this would include the duvet covers.^[10]

Ona’at devarim

Shulchan Aruch brings the laws of ona’at mamon in Choshen Mishpat 227, and afterward in 228 he discusses the laws of ona’at devarim. The definition of ona’at devarim is complicated – Chazal bring a number of examples of different things a person might say to cause pain to another.^[11] The laws of ona’at devarim apply to business dealings, and in general to all interpersonal interactions.^[12] Shulchan Aruch connects these laws to those of geneivat da’at and the prohibition against deceptive business dealings.

According to Shulchan Aruch: “It is forbidden to deceive another in trade or ‘steal their knowledge.’ For example, if the merchandise is flawed one must inform the client, even if they’re not Jewish. One may not sell them neveila meat (meat from a kosher animal without kosher slaughtering) as if it is shechuta (properly ritually slaughtered).^[13] The buyer must be aware of anything that will diminish the value of the product so they have all the information to decide if they want to buy it at that price.

Be’er Hei-Tev adds that even if the information is irrelevant to the buyer and it does not affect the price the buyer must be informed of things; otherwise, one is guilty of deceptive marketing.^[14] This is where issues of ona’a segue into geneivat da’at. For example, even if there is no difference in price or quality between Italian and Greek olive oil, one may not present one as the other.

The prohibition of geneivat da’at

So the first question is how are you presenting the property? If you claim that the apartment has been cleaned or the bed linens changed then obviously all this must be true, down to the duvet cover.

But even if you don’t describe cleaning or specifically mention bed linens there are a number of halakhic reasons to obligate either changing all bed linens or an explicit disclosure that they have not been cleaned.

Firstly, the laws of geneivat da’at are not limited to deceptive statements, they encompass the entire impression that is given. Therefore it’s forbidden to say things that could be interpreted in multiple ways or skip over any flaws in the product.^[15] Additionally, one may not make cosmetic changes to the product to give an impression that it is better than it is – such as freshly making a bed to make it look as though the bed linens have been laundered.

A generally clean and tidy rental gives the impression that everything has been cleaned.^[16] Furthermore, the gemara and poskim indicate that general societal norms and business practices influence a consumer’s expectations – and the vendor’s halakhic obligations. One may not market a product that does not reach these standards without clearly informing any potential buyers.^[17]

One might claim that many guests are aware that there are places that do not clean thoroughly, especially bed linens. According to Shulchan Aruch deceptive cosmetic improvements are prohibited, so a butcher may not soak meat in water so that it appears white and fatty. Later poskim comment that if the public is aware that “everyone” does this, and it is standard practice, then it is permitted.^[18] In my humble opinion, even though many people have lower cleanliness expectations, it’s certainly not “everyone,” and so this is not a sufficient reason to be lenient with cleanliness standards.

In addition to the consumer’s expectations, a vendor has to follow certain rules and regulations – whether they’re imposed by the government or a business acting as a broker between the vendor and customer. Some websites that advertise vacation properties have their own regulations. For example, Airbnbn has cleanliness standards that include fresh bed linens. Some countries have laws for such rentals. In Israel the Health Ministry obligates hosts to wash towels and bed linens as necessary – in detergent or bleach. This adds an element of “dina d’malkhuta dina” –  the halakhic obligation to follow the local civil laws (with some exceptions). Even though there’s some debate, many modern poskim rule that “dina d’malkhuta” applies to the State of Israel in particular, and democratic countries in general, at least when it comes to laws concerning social and business interactions.^[19]

Beyond the civil obligations, these regulations also relate to the previous matter – social norms, customer expectations, and the vendor’s halakhic obligation to uphold these standards or clearly inform the client otherwise.^[20]