By Rabbi Yair Hoffman for 5tjt.comJoin our WhatsApp group
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About 14 years ago, Dr. Spencer Johnson wrote a book titled Who Moved My Cheese? It’s a parable about four mice that had it all, but then their world collapsed when their cheese disappeared.
There are profound moral lessons in that book. In the past 14 months, the wholesale cost of potato kugel for yeshivos and shuls has doubled in price. Last year, yeshivos paid $30 for a large 18 x 26 pan of kugel. Now the price is $60 or more. For shuls that pay for their own Kiddush and slice that kugel into 50 pieces rather than 60, the wholesale cost of each slice of kugel is a whopping $1.20 a slice!
It seems that there are four major factors that have contributed to the “potato kugel crisis,” The four factors are listed below in the order of the impact they have on the price of kugel.
The price of eggs has shot up enormously on the wholesale level as well as on the retail level. The cost of a dozen eggs has risen to an absurd $7.99 in some local stores, and in Eli’s Market, a gourmet grocery store in the Upper East Side of Manhattan, the cost of a dozen eggs was at $17.99! According to the U.S. border patrol on the U.S.–Mexican border, the number of egg and poultry seizures more than doubled from October 1 to December 31.
More than almost any other commodity, vegetable oil prices have skyrocketed. The cost of a 3-liter container now hovers between $13 and $19. An analysis by the International Food Policy Research Institute, a global research group, has stated that supply tightened prior to the Russian invasion of Ukraine due to drought in South America, a typhoon in Malaysia, and labor shortages due to restrictions on mobility during the pandemic.
According to tradingeconomics.com, in the past six months alone (July 1, 2022 to February 1, 2023) the price of potatoes has risen an astounding 212% percent.
Potato kugel manufacturing, even if the company has one of those high-end Hobart 6460M potato-peeling machines, is a labor-intensive product, and the cost of labor has also skyrocketed in the post-pandemic era. The $12-per-hour employee is long gone, and workers are now demanding $16 or more per hour.
Not The Time For Boycotts
It is this author’s view that on account of these unavoidable factors, a boycott should not be implemented. Halachically, boycotts should only be implemented when there is genuine price gouging, termed by the Torah as “ona’ah.”
So let’s get some background. The Torah (Vayikra 25:14) speaks of ona’ah, financial and verbal oppression. “When you make a sale to your fellow or make a purchase from the hand of your fellow, you shall not oppress one another.” Our sages (Bava Metzia 58b) state that this oppression refers to oppressive pricing. There is another verse that also discusses oppression, which, the sages state, refers to verbal or psychological oppression.
Many authorities (see Minchas Chinuch 67 and Dibros Moshe B.M. 53:1) write that one who financially oppresses an individual is also in violation of the second verse because whenever there is financial oppression there is also a psychological oppression, since being taken advantage of financially is also a form of psychological oppression.
What is ona’ah all about and does it apply in the above situation? The general rule is that if a store charges above the market cost, this is considered financial oppression, ona’ah. It makes no difference if the purchaser was aware of the overpricing or not (Rema 227:7 based on the Mordechai 307:7). The laws of ona’ah apply to sales, purchases, and even rentals (S.A. 227:32). It applies to precious stones as well (S.A. 227:15). Here, however, most of our retailers are not charging prices that are above other markets. A quick stop at stores catering to other ethnicities reveals this.
Types Of Ona’ah
(A) If the overpricing is within 16.67 % of the market price
(B) If the overpricing is exactly 16.67% above the market price
(C) If the overpricing is above 16.67% of the market price.
There is a debate among the Rishonim (Sefer HaChinuch and Ba’al HaMaor) whether one is fully permitted to charge within 16.67% of the market price or whether it is prohibited to do so, but if one did it the sale remains valid (Ramban). If it is exactly 16.67% more, then the sale remains valid but the overcharge must be returned. If the overcharging is over 16.67% then the victim may reverse the validity of the sale if he so wishes (see S.A. Y.D. 227:4).
How Is Market Value Determined?
There are two situations in which market value is determined: (1) If there is a set market price for the item; and (2) if there is a range of prices. If there is a set market price for the item in that neighborhood, some poskim hold that there is a problem of ona’ah even if it is less than 16.67% (see Aruch HaShulchan 227:7 and Machane Efraim ona’ah Siman 7).
There is a debate in regard to where there is a range of prices in the community. The Beis Yosef (C.M. 209) suggests that ona’ah does not exist in such a situation. Most poskim (see Bach and Shach cited in Shevet HaLevi Vol. V #218) hold that even if there is a range of prices there is still a prohibition of ona’ah. Some poskim write that the figure is calculated by determining 16.67% above the highest price for the item within the range. Others write that one calculates 16.67% above the median price of the item. Rabbi Yaakov Yeshayahu Blau, zt’l, in his Pischei Choshen (Vol. IV p. 296) seems to feel that this is the most authoritative view.
There is another view that the determination of the market price is based upon what the majority of vendors sell the item for (Imrei Yosher Vol. II #155). This may also be the view of the Heishiv Moshe (Responsa #102). (It is possible that the Heishiv Moshe may be in agreement with Rav Blau, however, as the language is not clear.)
There is another understanding of these halachos as propounded by Rav Chaim Kohn, shlita, in his sefer titled Hilchos Mishpat (page 294). His view, confirmed by this author in conversation with Rav Kohn, is that the true market price is determined by supply and demand and what the market will tolerate. Therefore, according to Rav Kohn, even if there is a minority of people who will purchase the item without looking at the price, this is still considered to be a valid market price. When this author suggested to Rav Kohn that this opinion may almost negate the concept of ona’ah, he responded as follows: “In your example, where three stores price an item at $20 per pound and a fourth store prices it at $30 per pound, there are still buyers. Yet there would be no buyers at $50 per pound. The $50 would be considered ona’ah.”
Rav Kohn’s view was not accepted by the author of the Pischei Choshen and it seems it was not accepted by rabbanim with whom I had spoken in the area.
Ignored Area Of Halachah
If it is true that Rav Blau’s view is the normative halachic view, then it would seem that there would be an obligation upon the store managers to determine the upper pricing limits of numerous items before they price their goods. This would seem to place an extraordinary strain upon the managers and owners of stores and supermarkets that sell numerous items. Yet, many poskim with whom this author consulted are of the opinion that it should be done.
There are also times when there is ona’ah where the buyer took advantage of the seller and purchased the item for a price 16.67% below the market price (S.A. 227:1). Indeed, there is an opinion where even those who assist in a sale are in violation of the prohibition of ona’ah (Responsa Mishkenos Yaakov #59).
The laws of negating a sale or refunding the excess 16.67% do not apply to real estate. The laws of ona’ah do not apply to barter (S.A. 227:20)
If a person fully understood the value of the item and agreed to the ona’ah, then there is no ona’ah negating the sale (S.A. 227:21). If he merely said that he is mochel the ona’ah but did not know the true value of the item, the laws of ona’ah still apply.
If the quality of the item being sold is unavailable in the market, then this is certainly an exception where the laws of ona’ah do not apply. When there is no existent market for an item, ona’ah does not apply (Hilchos Mishpat page 294).
The Aruch HaShulchan (227:7) writes that there may be a distinction between someone who sells a high volume of the item versus someone who only sells a small quantity of the particular item. Some poskim further qualify this by saying that ona’ah only applies when the prices are not so wide-ranging. However, if the prices are very extreme, then the laws of ona’ah do not apply at all.
It is interesting to note that the Chofetz Chaim writes in his Laws of Rechilus (Sefer Chofetz Chaim, Siman 10 and 11) that if it is clear that the laws of ona’ah do apply, anyone who is aware of it should inform the vendor.
Is Something So High Priced Considered Part Of Hotza’os Shabbos?
The Gemara in Beitzah (Beitzah 12a) uses the expression, “Borrow on My account and I shall pay—lavu allai v’Ani porei’a.” Hashem covers these expenses and He underwrites the costs. Does the exception apply to food items that have skyrocketed in price?
The Shitah Mekubetzes (Beitzah 15b) cites the Ritva’s view that all expenditures for mitzvos are included within this exemption. According to the Ritva, you get back any money that you spend on any mitzvah. The Gemara itself extends the exemption to expenses for talmud Torah for one’s children and for rosh chodesh as well. Perhaps this might give precedent to include high-priced Shabbos expenditures to be exempted too.
Rabbi Daniel Kleinman posed the question to Rav Shmuel Kamenetsky, shlita (Koveitz Hilchos Shabbos Vol. I page 11), as to whether purchases that one may consume on Shabbos but are not necessarily so are included in hotza’os Shabbos. Rav Kamenetsky responded that they are. Excessive or luxurious purchases, however, would not be included unless the person is on a remarkably high level of bitachon, a level that is not found in modern times.
Rav Elyashiv, zt’l, seems to have had a more nuanced view. The Shvus Yitzchak (section on electricity, 19:1) cites a ruling from Rav Elyashiv that the concept only includes tzorchei Shabbos and not luxuries. The Aruch HaShulchan (O.C. 250:4) writes quite clearly, however, that purchasing more meat and wine are included in the expense exemption. Perhaps the contradiction could be resolved by assuming that only in regard to extra meat and wine do we say that they fit into the definition of tzorchei Shabbos, the needs of Shabbos.
Rav Nissim Karelitz, zt’l, in his Chut Shani (Vol. I, pp. 46–48) writes that expenses for the Shabbos eiruv would also be exempted. Rav Karelitz also deals with the issue of purchasing from a more expensive store. He concludes that if it is within the person’s general budgetary means, then the more expensive local store is exempt, but if it is beyond what he would normally spend, it would not be included. He adds the caveat that even if it is within his means, it is only exempt if it would otherwise interfere with the person’s Shabbos preparations.
We can also perhaps see this idea from Rav Moshe Chaim Luzzatto’s explanation in his Mesilas Yesharim. He writes that Rav Nachman would contemplate what he would do according to his means to honor another person. The operative term is “according to his means.”
On another note, Rav Chaim Kanievsky, zt’l, was asked (see Ohr L’Yaakov page 72) whether the exemption included guests who would have their own food to eat had they not been invited. He responded that these expenditures are also exempt.
The Moral Lessons
Lessons can be drawn from Dr. Johnson’s amusing book, and they apply to potato kugel as well. Economic factors have essentially moved our potato kugel away just as the cheese was moved from our four hapless mice characters. Thinking too much about your potato kugel might paralyze you, so just start looking for a better way or change up the recipe. We also have to realize that nothing but Hashem and Torah lasts forever, so let’s all keep our eyes open for any changes that come. Kol ma d’avid Rachmana l’tav avid—whatever Hashem does is for the good.
The author can be reached at [email protected]. Read more of Rabbi Hoffman’s articles at 5TJT.com.