In our parasha, merchants and businessmen are commanded to conduct their transactions and business dealings fairly and honestly, and to make sure that their weights are accurate and exact in their measurements: “Thou shalt not have in thy bag diverse weights [lit. stones], a great and a small. Thou shalt not have in thy house diverse measures [lit. Eiphah and Eiphah], a great and a small. A perfect and just weight shalt thou have; a perfect and just measure shalt thou have; that thy days may be long upon the land which the LORD thy God giveth thee” (Deut. 25:13-16, JPS 1917 trans.).
A “large and small Eiphah” and “large small stones” were measuring tools for volume and weight used by unscrupulous merchants. The large one would be used for weighing items that he himself would purchase from a wholesaler. The small one would be used when he would sell his merchandise to his various customers. The “large stone” looks right, but is actually smaller than the proper standard. Using it would mean that the merchant would pay a price that would correspond to a smaller amount of stock or commodity. The “small stone” is larger than the proper standard. It is labeled as measuring one kilogram, but in reality weighs less. When goods are sold using scales, they are paid for as if they were in larger quantities than in reality. The midrash words the prohibition like this: “…that he shall not take with the larger and return with the smaller [measure]” (Sifre Deuteronomy Ki Tetze, 294). These stones would be kept in the merchant’s coin-purse so that he would be able to connivingly amass undeclared profits. This was a simple, primitive form of money laundering and consumer fraud.
It appears that these deceptive tools were in use among merchants. Thus we find the prophet Mikhah condemning the use of “stones of deceit”(Micah 6, 11).
The Amoraim (sages of the Talmud) expanded the scope of the commandment. They linked the issue of the stones (the weights), as well as the measures of volume (the measuring containers) – with additional gray areas, such as price control and price coordination among merchants: “…voiced by Rami b. Hama in the name of R. Isaac…market officers are appointed to [superintend] both measures and prices, on account of the impostors”(B. Talmud Baba Batra 89a, Soncino trans.). The same sugya (discussion) mentions that the takkana (edict) of price regulation is not written in the Torah – and that this issue was subject to a dispute between the school of the Nasi (the official Head) and the Sages. The school of the Nasi expanded the Biblical prohibition because they wanted to regulate and make sure that competition did not get out of hand. The Sages apparently wanted to remove and prevent obstacles from the free market, and argued that the Torah specifically demanded that weights and measures be regulated, excluding prices or rates from regulation. It seems that the reason for the opinion of the Sages is that the price or rate is clearly visible to all, accepted on by all parties. In contrast, it is easy to cheat with measurements, as it is not easy to observe whether they are accurate or not (see Baba Batra 89a).
The same sugya mentions other derived laws from the Biblical verses. One of them is the prohibition of discriminatory prices and rates. Discriminatory pricing means having different rates for different people – adjusting the price of the item for the customer and his needs. The more the customer needs the item, or the more he is likely to spend on the item – the higher the price will be. In addition, the sugya includes strict instructions about how to measure “in-between” sizes that are not found on standard weights, as well as how to properly sell enormous – or miniscule – quantities. This discussion’s premise assumes that the merchant is trying to profit as much as he can and trying to sell as little as possible for the highest possible proceeds. For this reason, laws must be in force to protect consumers from consumer exploitation.
Elsewhere in the Talmud, we find an opposing assumption by the Sages - that merchants would be expected give generously and provide consumers with more than is technically owed. This generosity of spirit that is occasionally found among merchants is called “vitur” – “concession” or “relinquishment.” Rashi explains in more detail with an example of someone buying a quantity of apples for one peruta coin, and after the seller has measured the amount, adds another two or three apples. This is the way of shopkeepers – to voluntarily add some extra to the agreed-upon amount out of their own pockets (Rashi, B. Talmud Nedarim 32b s.v. Rabbi Eliezer). According to certain opinions, this practice was so common that it would be permissible even for people who had taken vows prohibiting benefit from each other, and would normally be prohibited from making gestures of reciprocity or friendship. These opinions that permit adding a little extra in this case assumed that this type of giving was considered negligible, not something that people would see as important, substantial, or significant. In practice, it was considered part of the business transaction.
There is an apparent contradiction between the behavioral assumptions of the two sugyot. Is the merchant a cheat, suspected of raking in hidden profits? Or is he, perhaps, assumed to be good-hearted, generous – one who concedes? In practice, some cases involve two sides of the same coin. The reason that the merchant will generously add from his own pocket to the agreed-upon merchandise is that he wishes to win over customers. The merchant wants the consumer to leave with the feeling that he engaged in a very good business transaction, being offered something as if from an outpouring of friendliness and goodwill.
The disagreement between the sugyot can be resolved if we argue that the prohibition of the “small weight” is referring to stinginess and reducing the amounts in order to profit. The additional prohibition of the “large weight” is one that prevents deception coming from the direction of “two for the price of one” and other “deals” that are designed to fool the consumers into feeling like they profit – in reality, because of the marketing finesse involved, only the merchant profits.
Perhaps, in light of of the above, the true opposites of “Eiphah and Eiphah” – “great and small measures” or “great and small weights” are not merely the inverted versions of their function – using them for the benefit of the other side. The opposite of overcharging customers is not to undercharge. Rather, the true opposite is “a perfect and just weight” and a “perfect and just measure.”
