“I’m Just Looking” – The legalities of discussing a product with a seller with no intent to purchase [i.e. Showrooming, comparison shopping, cost researching, opposition research

“I’m Just Looking” – The legalities of discussing a product with a seller with no intent to purchase [i.e. Showrooming, comparison shopping, cost researching, opposition research]:[1]

In the realm of commerce, the practice of comparison or competitive shopping, cost researching, and opposition research are commonly performed by consumers to help them get the best deal possible. A most common practice today is the practice of showrooming, which refers to the practice of people examining products in physical retail stores but intend to make their purchases online from different vendors. These activities may infringe on various Halachic prohibitions and hence must be carried out in accordance with certain Halachic guidelines. The general rule is that while value inquiries and deal hunting are acceptable forms of exploring market options, they must avoid deception or dishonesty, such as fooling a seller into believing there is intent to purchase when none exists. In this article we will outline the distinction between legitimate practices like price scouting and rate exploration versus actions that may violate principles of fairness, such as disingenuous retail hopping or engaging in opposition research under false pretenses.

1. The possible prohibitions:

The prohibition against making a statement without intent to fulfill it:^[2] Although there exist various scenarios in which one retains the legal right to retract from a business promise or agreement, and at times doing so is not forbidden and does not even consider one untrustworthy [i.e. a promise to give a large gift][3], nonetheless there exists a Biblical^[4] prohibition against one making a promise or agreement without intent to follow through at the time the one is making it.^[5] [Meaning, although changing one’s mind at a later point is not considered outright lying, and one retains a legal, and at times even a moral, right to do so based on new developments or points that he is now taking into account, nonetheless, at the time that he makes the promise or agreement he must have in mind to fulfill it, and if he changes his mind later, then he changes his mind. However, to make a false promise or agreement which he has no intent to fulfill even at the time that he is saying it, is Biblically forbidden. Thus, in all scenarios that one is allowed to change his mind to a purchase agreement, or that changing his mind does not transgress a Biblical prohibition, this is only if he intended to follow through with his promise and agreement at the time that it was made.]

The prohibition of Onas Devarim:^[6] It is a [Biblical[7]] prohibition of Ona’as Devarim for one to fool a [Jewish[8]] seller into believing that he is interested in buying his product when indeed he has no intent to do so or has no money to afford it. This is prohibited when one’s intent is to fool his friend into thinking that he wants to buy the product and afterwards when he doesn’t buy it, his friend will recognize that he did so in order to fool him, and he will be distressed.[9] [Thus, while the previous prohibition only applies if one actually deceitfully tells the seller that he is interested in buying the product when in truth he is not, this prohibition of Onah would apply even if one does not make this statement to the seller, but says other words or performs actions that fools him to believe this to be the case.]

1. The law:

May potentially buy:[10] There is no prohibition for a person to enter a store for the sake of finding out the price or quality of an item if he is open to purchasing that item from that store if it finds favor in his eyes. Hence, there is nothing wrong with doing price comparison shopping and cost research with various stores and sellers even though one obviously will only purchase the product from one of the sellers. There is no need to inform the seller of one’s intent of price comparison in such a case. Having customers do so is also in the best interest of the sellers, as perhaps they will manage to convince him to purchase their product. However, in the event that one for certain does not plan on buying the product, such as he already purchased it, and simply wants to know the price in the other store, or is doing business opposition research, or is simply researching its quality in order to buy it from a different cheaper online seller, then this falls under the next scenario.

No intent to buy: While certainly there is no prohibition against entering a store without immediate intent to buy in order to observe the merchandise, which can eventually lead to one buying it then or in the future, nonetheless, seemingly[11] based on the above, it is Biblically forbidden for one to lie and tell the owner or seller that he is interested in buying his product when in truth he has no intent to purchase it [i.e. Showrooming, is there in order to get information as business opposition research, or is bored and is doing so for jest to pass time]. [This applies even if the seller is a gentile.] This is aside for the possible additional Biblical prohibition of Ona’as Devarim which is transgressed if one [intentionally] fools a [Jewish] seller into believing that he is interested in buying his product when indeed he has no intent to do so. [Hence, even if one does not explicitly tell the seller that he is interested in buying the product, it would still be prohibited to trick him into thinking so, due to this latter prohibition. However, doing so would be permitted to a Gentile seller.[12]] However, if one tells the seller that he has no intent to buy the product and he simply wants to know the price, then it is allowed. Likewise, some suggest that a quick question of price without going into details and taking much of his time is permitted.^[13] Likewise, some permit inquiring about the product from a non-commission-based worker of the store sop long as he does not lie and say that he is interested in buying the product.[14]

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[1] See Halichos Bein Adam Lichaveiro 10:23

[2] Admur C.M. Dinei Mechira Umatana Halacha 2; Abayey Bava Metzia 49a; Rebbe Yaakov Ben Zavdi in Yerushalmi Shevi’is 10:4; Rosh Bava Metiza 4:12; Rif Bava Metzia 29b; Nimukei Yosef Bava Metzia 49a and Hamaor Hagadol in explanation of Rif ibid that so applies even according to Rebbe Yochanon [However, see Minchas Pitim 204:11 that this applies only according to Rav]; Yerushalmi end of Shevi’is; Rashi Bava Metzia 49a; Shaareiy Teshuvah of Rabbeinu Yona 182; Minchas Pitim ibid in name of Ramban in Milchamos, Shita Mekubetzes Kesubos 86a; Poskim in Encyclopedia Talmudit ibid footnotes 62-66

Other opinions: Some Poskim imply that making a statement without intent to follow through with it at the time that one says the statement, is not under any Biblical prohibition. [Implication of Admur O.C. 156:2, and all Poskim who hold of this position, who interprets this verse to refer to the concept that one should always try to follow through with his promises, which is only a matter of Michisurei Emuna, and is not Biblical]

[3] See Admur C.M. Dinei Mechira Umatana Halacha 2; Michaber 204:8; Tur 204:8; Rambam Hilchos Mechira 7:9; Rebbe Yochanon in Bava Metzia 49a as explained by Rav Papa; Rif 80a rules like Rebbe Yochanon.

[4] Admur ibid based on Milchamos on Rif ibid and Rosh ibid; Implication of Nimukei Yosef Bava Metzia 49a “Over Al Esei Deoraiysa”; Imrei Yaakov on Admur ibid 1:9 Shaar Hatziyon 36; See Likkutei Sichos 32:157 footnote 24

[5] The reason: As the verse [Vayikra 19:36] which discusses the obligation for one to have honest and justified weights in commerce states, “Eifas Tzedek Vehin Tzedek Yihyeh.” Now, why does the verse repeat the term weights using the word “Hin,” as was this term not already included in the word “Eifas?” Why the redundancy? Rather, it is coming to teach us that one’s yes and no should be justified. [Admur ibid; Abayey Bava Metzia 49a; Rif 29b; Nimukei Yosef Bava Metzia 49a in explanation of Rif ibid that so applies even according to Rebbe Yochanon; Rambam Deios 2:6] See Rashi ibid that the Hin is 12 Lugin while the Eifa is three Sean which is 72 Lugin

Other opinion of Admur: Elsewhere, Admur O.C. 156:2 interprets this verse to refer to the concept that one should always try to follow through with his promises. In his words: “One is to beware to deal honestly in business and not change his word as the verse [Kedoshim 19:36] states, “Vehin Tzedek Yihyeh Lach,” which is interpreted to mean that one’s “yes” and “no” should be justified. This means that when a person speaks and agrees to something with a yes or no, then one must try to fulfill his word and align them with his actions.” This follows the opinion who rules that the above verse is a mere Asmachta to the concept of Michisurei Emuna, and is not of Biblical status. [Braisa in Bava Metzia 49a in understanding of question of Gemara; Smeh 204:12; Rav Ovadia Bartenura and Tosafus Yom Tov and Pirush Hamish ayos of Rambam on Shevi’is 10]

[6] See Admur Hilchos Onah Vegineivas Daas 28; Michaber C.M. 228:4; Mishneh Bava Metzia 58b; Pesachim 112b

[7] Aee Admur Halacha 27

[8] Implication of Pasuk “Ish Es Amiso”; Implication of Michaber C.M. 227:26 and 228:1 that just as the monetary laws of Onah do not apply towards a gentile, so too the prohibition of Onas Devarim; Implication of Chinuch Mitzvah 338 “Not to oppress a Jew with words”; Bach C.M. 228:6; Pirush of Rav Perlow on Rasag L.S. 82 in understanding of Rambam; Shevilei David 8           

[9] Seller is unaware that buyer has no intent to buy: According to Admur, it can be inferred that if the seller has no idea that one is trying to fool him, and he rather believes that he is asking to see if he can afford it, then it is permitted even if in truth the asker has no intent to buy it. [Imrei Yaakov on Admur ibid in Biurim p. 43-44] However, even according to this approach, it would remain prohibited for the person to lie and say that he’s interested in buying the product, and rather the allowance is simply for him to ask how much the item costs without mentioning any interest in buying it.

[10] Pischei Choshen 15:5 footnote 15; Halichos Bein Adam Lichaveiro 10:23

[11] As it is possible to argue that even according to the opinion who considers doing so a Biblical prohibition, perhaps this is only if an actual purchasing agreement was made without any intent of fulfilling it, however if one simply lied about his inquiry, prior to any agreement being made, then this falls under the general lying and Genivas Daas prohibition and not under the prohibition of Hin Tzedek. Vetzaruch Iyun!

[12] Hilchos Onah Harei Halachos p. 378-380

[13] See Imrei Yaakov on Admur ibid in Biurim p. 43-44; Pischei Choshen 15:5 footnote 15; Hilchos Onah Harei Halachos p. 378-380; Halichos Bein Adam Lichaveiro 10:23

[14] Hilchos Onah Harei Halachos p. 378-380