I. Unsportsmanlike Conduct
The recent El Al blunder regarding ticket underpricing raises a number of ethical and halakhic issues. R. Yair Hoffman ably addressed many in an article for the Five Towns Jewish Times (link). I wish to address a few more and offer a slightly different conclusion.
Briefly, El Al’s contracted third party mistakenly offered round-trip tickets to Israel at insanely low prices (approximately $300-400). El Al has stated that this was an error. Are customers allowed to insist that El Al honor the tickets or is the sale void due to the mistake?
I think it is important to state that while El Al cannot really be blamed for this, the way the airline industry in general prices tickets leads to aggressive customer purchasing. Tickets never have a stable price. The prices vary based on time, oil prices, airline expectations and so much more that they are mathematically unpredictable (link). One travel agent described purchasing a ticket as bidding on a commodity. This opaque procedure transforms the experience of travel preparation into a constant race to outsmart the airlines. This race is unwinnable because even when you think you paid a good price, you can never really know whether you are being taken advantage of… except in this case. These El Al customers beat the system in a highly adversarial process. The airline calling “time out” because it lost seems like poor sportsmanship.
The system as it stands is unfair and conducive to cheating. If the industry would assign a flat price to tickets, customers would not feel obligated to wage war against the airlines every time they need to fly somewhere. Why is there no regulation about this? Why have consumer advocates failed to reform this broken system of pricing? Regardless, an airline calling “foul play” seems tasteless, even offensive, when customers usually feel like the victims of this system.
II. Invalid Sale?
However, the real question we face is whether those people who bought those mistakenly priced tickets must return them for a refund. Once they learned that El Al sold them at a price set in error, do the rules of ona’ah apply, which would render the sale invalid due to extreme over- or under-pricing? Some argue that because El Al used a third party, that third party should pay for the mistake. However, the laws of ona’ah are stronger when a third party is involved (Shulchan Arukh, Choshen Mishpat 227:30). The seller (El Al) can say that it only appointed the third party to benefit its interests and not to hurt them. Therefore, there is good reason to say that the sale is invalid.
You could also say that because airline fares vary so greatly, there is no market price and the low fares under discussion cannot be overly low. This seems to me to be the case discussed by the Sho’el U-Meishiv (4:3:136 – link) that R. Hoffman cites (in the article above). However, R. Tzvi Spitz (Mishpetei Ha-Torah, vol. 2 no. 26 – link) rules differently in an analogous case. An antique was sold for NIS 1,000 and was later discovered to be worth closer to NIS 50,000. Antiques have no market price and the real value for the item could be anywhere between NIS 10,000-50,000, depending on the bidders at any given time. However, R. Spitz ruled that NIS 1,000 is below any reasonable estimate and therefore constitutes ona’ah, an underpriced sale that is void. Similarly, while the price of tickets to Israel varies greatly, the mistaken price is well below any reasonable possibility.
R. Hoffman quotes a responsum of the Rosh (13:20) in which the Rosh rules that failing to charge for one item does not void the sale on other items. R. Hoffman compares this to the El Al situation: failing to charge for the fuel surcharge does not void the sale on the ticket. I cannot find this point in the Rosh’s responsum (the only relevant point I can find is in the second column of this page: link). I also question whether the fuel surcharge can be separated from the price of the flight (which R. Hoffman addresses but I’m not sure he is totally convincing). This single issue is important because it is probably the second strongest argument for sustaining the sale. All other argument, except for this and the next, point to a sale that is invalid, in which case customers must return their tickets. However, I find it too complex for my judgment. I need a more expert opinion to decide this issue.
Finally, El Al agreed, at least at one time, to honor the tickets. This constitutes mechilah, forgiveness of the underpricing and validation of the sale. Once the company agreed to the sale, they cannot halakhically revoke the consent.
III. Be Good
There is, of course, a more important idea at work. Should we be taking advantage of someone else’s mistake? R. Asher Meir (The Jewish Ethicist, pp. 111-112) discusses a similar case in which a retiree is unsure whether he may take advantage of a corporate airline discount. R. Meir suggests he contact the airline and ask them:
Taking improper advantage of discounts makes us feel clever and virtuous at the same time. We congratulate ourselves on our thrift, and reassure ourselves that we are helping the company by giving it our business… The best rules for dealing with these second-guessing situations is, don’t guess. If you’re not absolutely sure you’re doing someone a favor, play by the rules. If this airline decides that it’s in their interest to offer you the discount, let them extend it to you…
As the book of Proverbs tells us, “stolen waters are sweet.” This corresponds to the special sense of achievement we sometimes feel when we’ve gotten away with something. But the same book tells us that “one who hates gifts will live.” Life and vitality are our portion when we desire only those gifts which we deserve and which God sends us in a proper fashion.
Imagine if the newspapers had reported that thousands of Jews, on learning they had obtained a mistaken discount, had returned their tickets. What a Kiddush Hashem that would have been.
However, I find it hard to condemn the customers who failed to return their tickets. The adversarial nature of airline ticket purchasing has created this atmosphere, which results in customers rejoicing in finally knowing that they are not the victims.