Ketubot (11:5) | Yehuda Gottlieb | 17 years ago

The Mishnah in Ketubot (11:5) is based on the halacha that a Beit Din can sell the movable property of a deceased husband’s estate in order to pay for his wife’s ketubah. In order to do this, the Beit Din must make an evaluation of the property which will be sold. The Mishnah states:

[Concerning a sale based on] the appraisal of the judges who undervalued it by a sixth or overvalued it by a sixth - the sale is void*.*

These guidelines form the parameters of another halacha, namely Ona’ah.

A sale that has occurred based upon the appraisal of the judges cannot be undervalued or overvalued by more than a sixth. Rashi questions this Mishnah. The sale would be void if the property was undervalued by Beit Din because the Beit Din are acting as the agents of the orphans, and by undervaluing their property, they are not acting in the orphans’ best interest. However, if they overvalue the property, why should the sale be nullified? Rashi therefore explains, that the sale would be void if the property was overvalued in order to ensure that both parties are treated equally.

However, the Ran explains in a different manner. There is a concept that a shaliach (agent) is only ever sent in order to act in the best interests of those that appoint them. If a case arose where the agent did not act in the senders best interest, the sender is able to nullify the actions of the shaliach, by stating that he did not wish the shaliach to act to his detriment. This concept can apply to our case as well. In a case where Beit Din undervalues an orphan’s property, the orphan is able to nullify the sale since Beit Din (their agents) are not acting in their best interests. The Ran adds that the buyer too, relies on the evaluation of the Beit Din (that they are not overcharging) and in that way the Beit Din are acting as the agents of the buyer. Therefore, if the Beit Din were to overcharge by more than a sixth, the buyer is able to nullify the sale as their agent (Beit Din) were not acting in their best interest.

The Sefer HaChinnuch (Mitzvah 337) explains the reason why property that is overvalued by less than a sixth is deemed a proper sale. Surely, a buyer has a right to renege on a sale if he finds out that he is being overcharged! The Sefer HaChinnuch writes that a merchant is able to overcharge up to a sixth of a product’s value in order to make a profit. He writes that above this he is unable, as these laws were set in place to improve communal life and civilise habitation. Although a merchant is able to slightly overcharge in order to make a profit, overcharging by anything higher than a sixth would be detrimental to communal and societal living.

In the case of a seller undercharging or overcharging less than a sixth, the Rambam writes that the seller is not obligated to give the buyer back the value that he was overcharged (and vice versa) as people are not makpid (particular) on anything less than a sixth. It seems that this would be the case even if the buyer still had possession of the money and indicated that he was particular about Ona’ah. Nevertheless we would take the money out of his possession and force him to complete the sale, because his da’at is mevatel (nullified) as the majority of people are not particular about this insignificant amount.

However, the Machaneh Ephraim disagrees with this view and states that if a buyer is still in possession of his money, he does not have to complete the sale as he is able to claim that he belongs to the minority of people that are indeed particular about this amount of money. Additionally, there is a klal which the buyer can rely on – the fact that we do not follow the majority in monetary cases. Therefore, since we do not follow the majority, he is able to claim that he is particular about the amount he is being overcharged, and therefore will not have to complete the sale.


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