All that has been said in the last two lessons about the laws of discrepancy in price applying to sales occurs when the seller is a merchant selling to the public. They do not apply if the seller is not a merchant but rather is privately selling something belonging to him that is not inventory merchandise to be sold. The laws of discrepancy in price do not apply without the necessity of a stipulation or condition that the law should not apply.

The laws of this section apply only if the buyer knows that the seller is not a merchant and is selling his personal items (such as a "garage sale"), as distinguished from selling inventory merchandise that he holds for sale.

If the non-merchant seller sells through a broker, the laws of discrepancy in price do apply even if the buyer knows that the seller is a non-merchant. If the buyer pur- chases through a broker, even though the buyer knew that the seller was a non- merchant, the laws of discrepancy in price do apply.

All that is said about the benefiting party making restitution to the wronged party and the wronged party having the right to rescind the sale does not apply if the wronged party is a Gentile. However, if the Gentile is the benefiting party, he is subject to the same laws as a Jew.

Assume that a Jew and Gentile are joint sellers and the sale involves discrepancy in price in favor of the seller to the extent of one-sixth of the normal market price. Assume that the Gentile cannot be held liable for the discrepancy in price in a Gentile court. The Jew must pay the entire discrepancy in price to the buyer. However, if the Gentile would have been liable in the Gentile courts to pay his share of the discrepancy in price and he fails to pay, and if the wronged party is intimidated not to sue him in the Gentile court, the benefiting Jewish seller need only pay his share of the discrepancy in price.

Assume that the seller makes full disclosure of the price he paid for the item he is selling and the profit he is making. Then if the buyer purchases the item, the laws of discrepancy in price do not apply. Con- versely, if it is discovered that the normal market price is much higher and the buyer has a windfall, the seller cannot take advantage of the discrepancy-in-price laws.
The buyer tells the seller that he will pay him the seller's cost plus a fixed amount or percentage. The laws of discrepancy in price do not apply.
In all of these situations where the laws of discrepancy in price regarding price do not apply, if there is a discrepancy in the quality of the thing sold, the wronged party may raise such an issue to void the sale.

The law is similar when a buyer, who may or may not be a merchant, deals with a middleman who purchases goods from manufacturers, or with wholesale farmers or other similar sellers to middle- men. The buyer pays the middleman a fixed percentage of the price that he paid to his supplier. The laws of discrepancy in price do not apply since the middleman's fee is fixed and he does not set the price. This holds true whether the middleman bought the goods from his supplier prior to receiving an order from the buyer or subsequent thereto. If the owner of the goods instructs the middleman to sell the goods at the best price that he can obtain and agrees that after he sells them he will pay the middleman, the owner cannot complain that the middleman owes him payment on the basis of discrepancy in price because he did not obtain a good price. If the middleman knows that the base price prior to his commission is violative of the laws of discrepancy in price, he should not stock or sell such merchandise. The halachah admonishes the middleman to seek the best price and best-quality goods on behalf of his ultimate customers as if he were the ultimate customer.

A seller who makes full disclosure may, under certain circumstances, be violating the laws of discrepancy in price. For example, the middleman purchases ten watches for $100, which averages out to $10 a watch. But not all the watches are of the same quality. Assume that the middle- man works on a five percent commission, which averages out to $.50 a watch. The watches should therefore sell to the middleman's customers at $10.50 for every watch. However, the customer who pays $10.50 for a poor-quality watch may be a wronged party under the laws of discrepancy in price. If the middleman sells while relying on the full-disclosure exception to the rules of discrepancy in price, he must sell all his stock to one person so that the better-quality watches and the poorer- quality watches will average themselves out. If he does not sell them all to one person, the buyer who purchases a poorer-quality watch for $10.50 may have a claim against the middleman.

Caveat: Much of what is said in this chapter may not apply since nowadays there are very few community standards in prices. Every manufacturer and every merchant has his own reasons for pricing as he does. It may depend upon the neighborhood where the goods are sold, the affluence of the community, or the style or function of the goods; indeed, there are scores of other reasons for the prices charged by a merchant or manufacturer, or any other person who sells or produces goods. In addition to this sweeping exception to the laws of discrepancy in price, as where the community has not set standards, there are other exceptions gleaned from this chapter and set forth herein.

As seen from the aforestated lessons, the laws of these lessons do not apply to the following situations:

to goods sold for a fixed price set by governmental regulation or by the manufacturer, or by an industry or cartel, since such price is not part of the laws of discrepancy in price. (The wronged party may rescind the sale for any discrepancy in price, no matter how small.)

to sales where the seller knows the precise price and the buyer does not know the precise price; or the buyer knows the precise price and the seller does not. (The wronged party may rescind the sale for any discrepancy in price, no matter how small.)

if the seller sells the item because he was under financial pressure to sell, or sells the item as a "loss leader" to draw customers into his store. Or similarly, if the buyer has a great need for the item and deliberately overpays. Neither party can sue for the discrepancy in price, no matter how large.

to the sale of real estate or notes of indebtedness. There is also authority that holds that the laws of discrepancy in price do apply.
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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