Hilchos Choshen Mishpat
Volume II : Number 31
Truth In Advertising
Reuven, who owns a store, is interested in launching a major advertising
campaign to attract new customers. He would like to clarify which
advertising and publicity tactics are permissible according to Halacha,
and which are forbidden.
A. Is he permitted to use "loss leaders", i.e. drastically lower the
price of certain items, in the hope that buyers will come to his store to
purchase these items, and also purchase other items for their full price,
earning him a handsome profit?
B. Is he permitted to try to persuade customers to purchase a certain
item in his store, when he knows that a newer model of this item with a
higher quality is available in a competitor's store for the same price?
C. Is a store owner permitted to polish his merchandise so that it
shines, in order to attract customers?
D. Is he permitted to use mirrors and decorations to catch customer's
eyes, so as to entice them to purchase an item that they may not have
otherwise, or in a quantity that they may not have purchased otherwise?
- We should preface our answer by quickly summarizing the prohibition of
Geneivas Da'as - misleading another person (literally - "stealing their
knowledge", which we discussed in depth in last week's class):
* The Torah forbids us from misleading anyone, whether Jew or non-Jew, as
it says (Vayikra 19:11) "Lo Signovu - you shall not steal".
* This prohibition applies in any situation in which a person misleads his
fellow human being, whether in business or in any other situation.
It is forbidden to mislead them by telling them something, acting in a
certain way, or placing misleading advertisements in newspapers or in
public areas. (1)
* It is forbidden to mislead someone even if you do not stand to gain
monetarily from this deception. It is considered Geneivas Da'as even if
the person thinks that you have honored them or done them a favor, when
you actually have not. (2)
* Even in situations where a merchant has transgressed the prohibition of
Geneivas Da'as, if the merchandise sold did not cost 16% more than what
an identical item is sold for in other stores in that area, the sale is
not considered void. If it has been sold on credit, the buyer is still
obligated to pay the entire amount that he agreed to pay to the merchant,
despite the fact that the merchant may have transgressed this
We will now discuss the answer to our specific questions:
- A. A store owner is permitted to advertise to convince customers to
purchase his merchandise. He may use any means that he wishes to attract
their attention, such as loud noises, lights, colors, and music, as long
as the information that he is telling them is accurate.
- This is permitted even if it is clear to everyone that the customer only
purchased the item because he was attracted by the loud advertising,
even though he may have been able to get the same item of better quality
at a cheaper price in a nearby store.
- B. Similarly, a store owner, manufacturer, or importer may convince
buyers to buy a certain item from themselves by extolling its features
to them, despite the fact that he knows that his competitor sells a
better item for a cheaper price. However, he may not say something that
is not true, such as "This is the best item on the market!", or that his
competitor's item is inferior to his.
A merchant must inform a potential customer of any defect that he is
aware of in an item, if it is possible that the customer would not
purchase the item if he were aware of the defect. (4)
- C. A merchant may not advertise that his prices are the lowest in town,
if this is not true. Similarly, a merchant may not claim that he is
making less profit on an item than he actually is, in order to convince
the customer that he is getting the rock bottom price.
- D. A store owner is permitted to discount certain items to attract
customers to his store, in the hope that they will also purchase items
that are not on sale. However, the store owner cannot advertise that
his store is the cheapest in town, and everything is on sale, and
present these certain discounted items as an example, if other items
that are being sold in his store are not cheaper than anywhere else.
However, as we state above, if a store owner did improperly advertise in
the above mentioned manner and mislead the customers, the sale is not
void, unless the customer specifically stipulated that he is only
purchasing the item on condition that all information presented by the
store owner is accurate. In such a case, the sale would be void. (5)
- E. Merchants are permitted to distribute samples of their product to
entice customers to buy from them. However, under no circumstances are
they permitted to advertise, or even hint, that their competitor's
product is inferior to their own. (6)
- F. A merchant may not polish a pre-used item to make it look as if it is
new. However, he obviously may do so if he informs the customer that it
is used, and charges accordingly. He may, however, polish a new item to a
shine in order to attract the eye of the customer. This is permitted even
if the merchant knows that if not for the polish the customer would not
have purchased the item. (7)
(1) This is based on the Tosephta in Bava Kamma (7:3), the Gemara in
Chulin (94a), the Rambam in Chapter 18 of Hilchos Mechirah, and the
Shulchan Oruch, Choshen Mishpat (228:6-7).
(2) This is stated in the SM"A there (7).
(3) This is stated by the Taz there (332:4).
(4) This is stated in the Gemara in Bava Metziah (60b), the Shulchan
Oruch (Choshen Mishpat 228:9-10), and in the SM"A there (15). The
Halachic principle involved here is that it can only be considered
Geneivas Da'as if there is something misleading about the merchant's
words or actions, in any manner. This is forbidden since he is providing
information that is completely or partially false, and therefore we can
say that he has "stolen the knowledge" of the customer.
On the other hand, if all of the information provided by the merchant to
the buyer is accurate, and the merchant just makes a major effort to
persuade the buyer to purchase the item from him rather than from his
competitor, or he employs some means of attracting the buyer to his
product rather than his competitors, he has not misled the customer at
all, and this can not be considered Geneivas Da'as. The buyer has allowed
himself to be convinced to purchase the item, and no inaccurate
information has been used to entice him to do so.
This is especially true in societies where such practices are commonly
employed. Since every buyer knows that each merchant will extol his own
merchandise in the hope of convincing the buyer to purchase from him, and
will not tell him that his competitor's item is better than his, it is
with this awareness that the potential buyer agreed to read the
advertisement or listen to the sales pitch. This is similar to the Halacha
stated by the SM"A there (16) that a butcher is permitted to soak his
meat in water before selling it so that his meat will look better, in
such societies where it is well known that this is common practice.
(5) See the Ta"z in Choshen Mishpat 332:4.
(6) Shulchan Oruch, Choshen Mishpat 228:18.
(7) This is stated in the Shulchan Oruch there (9), and in the SM"A
Feedback is appreciated! It can be sent email@example.com.
This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av
Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His
Column originally appears in Hebrew in Toda'ah, a weekly publication in
Jerusalem. It has been translated and reprinted here with his permission
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Please Note: The purpose of this column is to make people aware of Choshen Mishpat
situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each
individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the
presence of all parties involved!
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