Is Halakha Insensitive to Non-Jews? The Case of Fraud

  Is Halakah Insensitive to Non-Jews? The Case of Fraud

By Gidon Rothstein

 Certain prohibitions lead to the understandable conclusion that Jews do not care about non-Jews, although in at least some cases that conclusion is false.¹ One example is the prohibition of אונאה, of overcharging (or the rarer undercharging) for merchandise.  Bechorot 13a notes the Torah (ויקרא כ”ה:י”ד)’s use of the word עמיתך, your friend or colleague, and asserts that Jews are only obligated to return fraudulent charges to a fellow-Jew.²

The quick impression, that the Gemara allows defrauding a non-Jew, bothered R. Baruch haLevi Epstein, author of Torah Temimah, in his commentary to that verse in Leviticus.  He appends a long note to his citation of the Talmudic comment, marshaling earlier sources to suggest that this rule only applied to non-Jews of the time of the Talmud, who lacked any meaningful legal system or morality.  The non-Jews of his time, he argues, would have to be treated differently and better.

While sharing the Torah Temimah’s discomfort with the implications of the Talmud’s statement, his solution does not satisfy, for two reasons.  First, as a matter of history, it is not clear that the legal system of the Persians and Romans with whom Hazal would have been acquainted was so significantly more deficient than the one in place in late 19^th century Russia, 20^th century Germany, or the twenty-first century US.

 The Scope of the Obligation

More troubling, however, is that Torah Temimah’s understanding of the Gemara does not fit well with other Talmudic statements about אונאה.  One quick example is the case of הקדש, the Temple treasury, where the Talmud also rules that the laws of אונאה do not apply.  Since the verse says איש את אחיו, [do not defraud] each of you his brother, Baba Metsia 56b excludes הקדש from these laws.

The implication that overcharging הקדש is permissible suggests we have misunderstood foundational aspects of the mitzvah.  Ramban, in his commentary on the Torah, argues that the Torah prohibits defrauding anyone, including the Temple and all other transactions exempted by the Talmud (he does not explicitly mention non-Jews).  Rambam, in his commentary to mKelim 12;7, similarly denies the permissibility of cheating anyone, and explicitly mentions idol-worshiping non-Jews.

Ramban instead suggests that Hazal relied on these verses to add an extra obligation in the case of overcharging, that of returning the improperly accepted money and/or reversing the transaction completely.  It is only these aspects of אונאה law that are limited to a “friend” (one who reasonably keeps mitsvot), movable property (which the Torah describes as being bought “from the hand of your friend”), and non- הקדש.

Ramban’s idea suggests that the Torah here is establishing an added level of morality for our interactions with those with whom we are closest.  Dishonesty is prohibited everywhere and with everyone; the obligation to rectify this particular kind of dishonesty, Ramban implies, only comes into play within close personal relationships, with those we consider brothers and friends.

Movable Property as the Vehicle of Social Interaction

His idea also explains the inference that leads the Gemara to limit אונאה to transactions involving movable property.  The verse says או קנה מיד עמיתך, or purchase from the hand of your friend, and the Gemara says דבר הנקנה מיד ליד, something sold from hand to hand.  This can be read many ways, but in light of this Ramban, I suggest the Talmud means it is in such transactions that the personal element is highlighted, in that it is being bought “from hand to hand,” from person to person.  Precisely when directly facing a fellow-Jew, dealing with him personally, the obligation to avoid any dishonesty acquires additional stringency.

Rather than permitting discrimination, the Torah is laying out ways in which Jews ought to treat each other like family, regardless of how close they are or how well they know each other.  The laws of אונאה, in this reading, teach us less about how to avoid immorality or cheating in business—those תועבות ה’, abominations to God, are announced by other verses—than how to experience a full אהבת ישראל.

Usury Revisited: It’s Not a Sign of Jewish Cruelty to Non-Jews

Another monetary commandment that seems at first glance to codify an ordinary morality is the prohibition against taking interest.  We might assume, as most readers of the Torah have, that the Torah is telling us that interest is wrong, that we should lend others out of the goodness of our hearts without regard to the opportunity cost involved (as Christians certainly assumed when they prohibited themselves from lending money at interest). 

A disagreement between Rambam and Ramban offers reasons to suggest otherwise.  Rambam in his ספר המצוות, מצוה קצ”ח, Book of Commandments, Commandment 198, codifies an obligation to lend to non-Jews at interest as well as to forcefully collect loans from non-Jews.  Ramban disagrees³ and reads the Torah as permitting acting in that way towards non-Jews, not requiring it.

Rambam’s language, particularly in the mitzvah of taking interest, does sound like he sees it as an obligation to damage the non-Jew, in contrast to how we would treat a fellow Jew.  That damage, however, may be the purely monetary one of being required to pay more than what he borrowed.  If so, we can suggest that Rambam saw the positive commandment as directed at differentiating our treatment of Jews and non-Jews.  From Jews, whom we need to see as brethren, we may not take interest; from non-Jews we must.

That “must” might still be a sign of antipathy, but for the fact that the same rules apply to גרי תושב, converts to adherence to Noahide law.  These last are people whom we are required to support should they become impoverished,⁴ making it unlikely that we would also have an obligation to treat them, monetarily, in a morally deficient manner.

 It seems more plausible to suggest that the obligation to lend at interest assumes the acceptability of the act, with the exception of relatives.  To make that point, the Torah not only prohibits it between Jews but institutes it with non-Jews, to make clear that the only reason we do not act this way towards Jews is that they are family.  Ramban, who saw no such obligation, could either have held that taking interest was inherently flawed but that the Torah allowed treating non-Jews that way, or he could have held that the Torah, once having limited the prohibition to Jews, saw no need to emphasize the family aspect of the mitzvah by requiring lending to non-Jews at interest.

These two cases raise a question we can ask each time Jewish law differentiates Jews from non-Jews.  In such cases, is the Torah demanding a higher morality of our treatment of Jews, by virtue of our ties of blood and family, or is the Torah legislating ordinary morality in how we treat Jews and permitting a less than desirable mode of conduct towards non-Jews?  The answer could only be built up from a complete survey of the relevant examples, but would then allow greater understanding of how Jewish law understood the ideal for how Jews relate to non-Jews, in specific and in general. 

 

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1. A complicated sub-question here is how we distinguish between idol-worshipping non-Jews and ordinary non-Jews, a question made more difficult by our current inability to accept גרי תושב, non-Jews who officially declare themselves accepting of halachah’s view of how they should live their lives.  See, e.g., Maimonides’ Laws of Idol Worship 10;9.  I hope to address some aspects of that issue in a future post. [↩]
2. Baba Metsia 59a further restricts that to one who is fully observant; the question of how we halachically experience lack of observance in other Jews is another topic for a future post. [↩]
3.  In his glosses on the sixth Introductory Principle Rambam offered to explain his enumeration of mitsvot.  There is a technical element here, in that Rambam and Ramban disagree as to  how tradition understood the original verse, but that is too complex a topic to discuss here. [↩]
4.  See, e.g., Rashi to Vayikra 25;35. [↩]

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