The laws of this lesson are placed her in continuation of the laws of discrepancy as to price that appeared in the last lesson. I think it important that the reader should at least once in a lifetime read about and understand the halachik definition of discrepancy in price. The discrepancy is often referred to as the "One-Sixth Principle".

I will now set forth the three possibilities (1) where the discrepancy is less than one-sixth; (2) where the discrepancy is exactly one-sixth and (3) where the discrepancy exceeds one-sixth:

A discrepancy in price of less than 6:

The laws of discrepancy in price apply to all types of personal property. If the discrep- ancy in price from the normal market price is less than one-sixth (16l%) - even a small fraction less - the sale remains in effect and neither party need pay any money to the other. For example, if the discrepancy in price is 15% above the normal market price, the seller need not pay any money to the buyer; if it is 15% below the normal market price, the buyer need not pay any money to the seller. The halacha presumes that any discrepancy in price of less than one-sixth is waived and forgiven by the wronged party. The reasons are that the normal market price is not based on precise, monolithic prices, but rather on a range of market prices. Since there is a range of market prices, not even an expert appraiser can state that there is an exact price for any item and that no other price is possible.
A discrepancy in price of exactly one-sixth:

If the discrepancy in price is exactly 6 above or below the normal market price, the sale remains in effect, neither party may rescind the sale, and the overage or underage must be refunded. For example, if the seller received $7 for an item whose normal market price is $6, the sale remains effective and the seller must return $1 to the buyer. Or if the buyer paid $5 for an item whose normal market price is $6, the sale remains effective and the buyer must pay $1 to the seller.

A discrepancy in price of more than 6::

If the discrepancy in price exceeds 6, the sale is voidable by the wronged party. The wronged party who overpaid more than one-sixth or undersold by more than one-sixth of the normal market price has the option to rescind the sale or to insist that the sale remain effective with neither party paying any money to the other party. For example, the normal market price of the item is $5 and the buyer paid $6 (a 20% overcharge), the buyer has the option:(1) to retain the item and relinquish his rights to receive back his $6; or (2) to rescind the sale, return the item to the seller, and receive back his $6 from the seller. Or if the normal market price is $5 and the buyer paid $3, the seller has the option: (1) to rescind the sale, receive back the item, and return the $3 to the buyer; or (2) to compel the buyer to retain the item and not receive any money from the buyer.

The benefiting party does not have any options. If the wronged party insists that the sale remain effective, the benefiting party may not ask that the sale be rescinded.

There is a time limit during which the wronged party may seek to rescind the sale if the discrepancy in price exceeds one-sixth of the normal market price, or to seek restitution if the discrepancy in price equals one-sixth. The time interval is different if the wronged party is the buyer than if the wronged party is the seller.

Failure by the wronged party buyer to protest the discrepancy in price and to assert his rights within the prescribed time is tantamount to a waiver of such rights. The prescribed time extends to the time necessary for the buyer to immediately after the purchase go to show the item he purchased to a merchant who is expert in such items and to inquire of him the normal market price, or to show it to a relative of the buyer who understands the normal market price for such items. If the buyer has not made a protest during such time frame, he may no longer assert any rights under the laws of discrepancy in price, and the sale is final at the price paid. He may protest during this time period even though he used the item if the discrepancy in price is exactly equal to one-sixth of the normal market price. If the discrepancy in price exceeds one-sixth, the buyer still has the option to rescind the sale and recover his payment during this time even if he used the item, except that the buyer now has to pay to the seller an amount of money equal to the price for the use of the item.

If there was an emergency situation beyond the control of the buyer that prevented him from having a merchant or a relative expert in such items examine the item within the above-stated time frame, then his time is extended until the emergency ceases and for a reasonable time thereafter. Also, if the item is one with which no expert merchants in the community are familiar and the buyer comes to the community on rare occasions, the time is extended until he gets there. If there is an expert in some other community; the buyer is not required to immediately travel to that community; but may go there when it is economically practical.

On the other hand, there is no time limit for the seller to protest if he is the wronged party in a sale of an item that is unique. The seller may protest at any time until he inquires of fellow merchants the normal market price of the unique item. He is not under any time constraint to investigate such price. However, if the item sold is not unique, then the seller also has a time frame (the same as that of the buyer), amounting to the time that it takes for the seller to immediately go to a merchant to ascertain the price of such items. If the seller fails to protest within such time frame, then it is deemed that he waived his right to protest.

If the item purchased remained with the seller, then the time frames are reversed. The seller can only protest within the time it takes to show the item to an expert merchant in the sale of such of items. The buyer's time to protest is extended until such time thereafter comes into his possession plus the time it takes him to show the item to a merchant or relative who is expert in the price of such items.

The subject matter of this lesson is more fully presented in Volume VII Chapters 227 of "A Restatement of Rabbinic Civil Law" by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores. Questions to quint@inter.net.il

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