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

Posted By Gidon Rothstein On August 24, 2009 @ 2:00 am In Halakha,Talmud | 16 Comments

  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 [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 [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 19th century Russia, 20th 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 [3] 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 [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. 

 


  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. [ [5]]
  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. [ [6]]
  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. [ [7]]
  4.  See, e.g., Rashi to Vayikra 25;35. [ [8]]

16 Comments (Open | Close)

16 Comments To "Is Halakha Insensitive to Non-Jews? The Case of Fraud"

#1 Comment By LazerA On August 24, 2009 @ 9:56 am

Equating אונאה with fraud is problematic. The basic prohibition applies to overcharging, even with full disclosure – which is not fraud and, depending on the circumstances, may not even be unethical. Actual deception may still qualify as אונאה, but would also fall under additional prohibitions (מקח טעות, גניבת דעת) which, if my understanding is correct, apply equally to Jew and non-Jew.

Being that this is so, the issue of אונאה is indeed quite similar to the issue of interest, in that neither is inherently unethical (although, like many legitimate business practices, open to possible abuse) and the Torah’s prohibition of engaging in these practices with other Jews is not due to ethical concerns but to develop a stronger sense of brotherhood and communal responsibility within the Jewish community.

#2 Comment By Gidon Rothstein On August 25, 2009 @ 7:34 am

I agree that overcharging is a better word,although if both parties recognize the overcharging,there may be ways of constructing a condition that avoids the prohibition,but I certainly agree and take your larger point. Thanks for commenting!

#3 Comment By Joel Rich On August 25, 2009 @ 7:57 am

Interesting is the pernicious effects of taking interest (iirc) are underscored by Chazal. If so, is it a segulah that this won’t effect the lender if he lends to Non-Jews?

KT

#4 Comment By Daganev On August 25, 2009 @ 10:21 am

Do laws and customs regarding non-Jews change when a Jew is living in a city that is mostly Jewish, vs when a Jew is living in a city that is mostly non-Jewish?

I know that the Gemora makes mention that such differences in cities existed, so I was wondering if different rules exist for each situation.

#5 Comment By DF On August 25, 2009 @ 12:10 pm

You’re missing the forest for the trees. The issue is not fraud per se, but how the whole of current halacha treats non-Jews in the entirety. As far as halacha as currently practiced goes, non Jews have not advanced an iota in the past 2000 years. As far as current halacha goes, pious Christians are no better than the godless pagans of past millenia. It’s not just fraud – they cant touch our wine; they are suspected of secretly plotting to “treif up” our food; their bread is suspect. Public sermons draw lessons from the Chanukah story to contemporary life. Basically, we willfully ignore 2000 years of history, and still treat our neighbors as idolworshippers “which we neither raise up or lower down”, etc.

With that mindset, is it any wonder the issue of fraud is what it is? You’re not going to change that mindset until you change our stance vis a vis goyim generally. You might have to put Kedem and Kesser out of business to do so.

#6 Comment By Modern Orthodox On August 25, 2009 @ 5:25 pm

The “forest” would also have to include not returning a lost object to them, not pointing out when they made a counting mistake to their detriment, not paying when our oxen gored theirs, no punishment for our killing them, etc.
Mr. Rothstein, isn’t it possible that the Torah Temimah didn’t use your “drei” and instead differentiated between goyim of former times and today because only such a “global” solution can deal with the problem?

#7 Comment By Bystander On August 27, 2009 @ 6:42 am

Thank you (and the commenters) for addressing this challenging set of issues. It seems to me, so far, that the questions are better than the answers.

#8 Comment By Shlomo Brody On August 27, 2009 @ 1:34 pm

FYI: Rabbi Rothstein is preparing a formal response to the questions, possibly within a larger essay on this topic. Please feel free to keep the questions and comments coming…

#9 Comment By Jeff On August 27, 2009 @ 6:31 pm

I think that unfortunately we have to answer the question in the title of the essay in the affirmative – halakha, as classically articulated, treats non-jews unfairly and is insensitive to them. Among the most painful examples is of course the general prohibition of saving the life of non-jew on shabbat in the face of shabbat violation. The question (perhaps in parallel to the Rav’s response to suffering in the world) should be asked as follows, “given the halakha is insensitive to non-jews, how do we deal with the halakhik system and non-jews in our live?” There are individual shitot (a Meiri here and a Rambam there) that might help, but the over-arching theme is one that is troubling. Rabbi David Hartman has referred to this problem as the “halakha of the jungle.” When living in a society in which we were at the mercy of the Roman Governor or the local Lord of the Manor our response was that of creating a system of law in which we were on top and they were on bottom. In some ways, this is the genius of the rabbis – instead of responding to being treated as a second class citzens with violence (as other groups sometimes do) they decided to respond with halkhik categories. The question then becomes – what do we do with all of these halakhot today. As someone famous once said – that is above my pay grade!

Jeff

#10 Comment By DAJ On August 27, 2009 @ 9:17 pm

This is the one area where I can really say that I admire the poskim of the Conservative movement, who have categorically refused to treat non-Jews as second-class citizens, even at the risk of reducing sales for the kosher wine industry.

#11 Comment By Joseph Kaplan On August 28, 2009 @ 5:59 am

The problem that I have with R. Rothstein’s analysis is that he describes returning the money one defrauded or reversing the entire fraudulent transaction as “a higher morality.” To me, if the prohibition of ona’ah has any meaning, it MUST, at the very least, include returning what you stole (to call a spade a spade). I would understand if the halacha was that for a non-Jew one must only return the stolen money but for a Jew one must not only return the money but pay the Jewish day school tuition obligations of the person who was defrauded. Now THAT would be a higher morality which could properly be reserved for achicha. But simply returning the stolen money? That’s basic justice.

#12 Comment By Michael Makovi On September 8, 2009 @ 2:45 am

I support the earlier comments about forests and trees, global solutions regarding gentiles. The individual ad-hoc responses that Rabbi Rothstein offers may even be true, but we cannot make an individual ad-hoc response to each and every single apparently racist law in the Talmud. And even if we do succeed in producing a thousand ad-hoc responses, won’t Occam’s Razor be on the side of those suspicious of us?

Thus, it is clear to me that the only real solution is the Meiri.

For an enlightening explanation of the Meiri’s shita, in and of itself, with no attempt to determine whether his shita is “correct”, see [9].

For a survey of how Meiri is not “correct”, how every commentator on the Shulhan Arukh (save Be’er ha-Golah)disagreed with Meiri, see [10].

For a discussion on how Meiri is not “correct”, how every commentator disagreed with him, and yet how the preeminent “Modern Orthodox” poseqim all pasqened by him (even though they did know that Meiri is a da’at yahid), see [11]

Berger notes that, among the figures who pasqened Meiri were Rav Hirsch, Rabbi Ahron Soloveichik, and Rabbi Yehiel Weinberg. Regarding Rav Hirsch, see Rabbi Hirsch’s essay [12], and his son’s [13], and Rabbi D. Z. Hoffman’s [14]. Regarding Rabbi Ahron Soloveichik, see an excerpt from his [15]. Regarding Rabbi Weinberg, see Professor Marc Shapiro’s publication of Rabbi Weinberg’s letters to Professor Samuel Atlas, [16].

I’d like to add another source: In Rabbi Yom Tov Schwarz’s [17], we read (p. 17), “The distinctions that are found in the Talmud are between a Jew and an akum (heathen), whose societal standards, ethics and morality were so low as to be almost non-existent, and in no way has any bearing on the non-Jews our our time, as has already been noted by the Gedolei Ho’Acharonim (great halachic authorities of the recent past).”

See also Rabbi Dr. Yehuda (Leo) Levi’s עם ישראל ואומות העולם: “ובס’ חסידים כתב (סי’ שנח): ‘נכרי הזריז בז’ מצוות שנצטוו לבני נח, הזהר מטעותן שטעותן אסור, ותשיב לו אבידה, ואל תזלזלהו, אלא תכבדהו יותר מישראל שאינו עוסק בתורה”. [My translation: Rabbi Dr. Yehuda Leo Levi's book The Nation of Israel and the Nations of the World, saying, "And in Sefer Hasidim, par. 358: 'A gentile who is punctilious in the Seven Noahide Laws, be careful [not to benefit from] his mistakes, for [benefiting from] his mistakes is forbidden. Return his lost objects to him, and do not scorn him, but rather honor him more than [you do] a Jew who does not keep the Torah.’”]

Also, further in R’ Leo Levi (ibid.), we find, after a discussion of Rambam/Shulhan Arukh vs. Meiri/Be’er haGolah, the following: ועי’ בתורה תמימה (דברים כ”ב ג’ ס”ק כ”ב ופרק ל”ג ס”ק ג’) שכתב: “כל המפרשים כתבו בכלל הדין הזה [היתר אבידת הגוי] דאיירי בעובדי אלילים הפראיים” ומצא מקור לדבר בגמרא (ב”ק ל”ח.): “ראה הקב”ה שאין האומות מקיימות ז’ מצוות, עמד והתיר ממונן… אבל אלה המקיימים ז’ מצוות, והם רוב האומות שבזה”ז ובכל המדינות הנאורות (!) נעלה על כל ספק שדינם שוה בכל לישראל”, – אבל כל זה לא מובא בשו”ע. [My translation: And see Torah Temimah, Devarim <>, who wrote: "In general, this law [that benefitting from a gentile's lost object is permitted] is regarding unruly idolaters”, and he found a source in the Gemara (Baba Qama 38): “G-d saw that the nations of the world did not keep the Noahide laws, and so He permitted their money [to Jews]…”, [quoting Torah Temimah again) "but those who keep the Noahide laws, and they are the majority of the nations in our own time, in all the enlightened nations, there is no doubt that there law is equal to that of a Jew." - [now Rabbi Levi parenthetically adds] but all this is not brought in the Shulhan Arukh.”

And see Rabbi Levi again, ibid.: וברמב”ם (הל’ נזקי ממון ח, ה) פירש יותר: “לפי שאין הגויים מחייבין את האדם על בהמתו שהזיקה, והרי אנו דנין להם כדיניהן. ושור של נכרי שנגח שור של ישראל, בין תם בין מועד, משלם נזק שלם. קנס הוא זה לגוים לפי שאינן זהירים במצוות ואינן מסלקין הזיקן, ואם לא תחייב אותם על נזקי בהמתן אין משמרין אותה ומפסידין ממון הבריות”. והמאירי הביא דברים אלה כאילו הם דוקא, וז”ל: “כל ששבע מצוות בידם, דינן אצלנו כדיננו אצלם, ואין נושאין פנים בדין לעצמנו” (ב”ק לז:). אבל לא ראיתי שדבריו מקובלים להלכה. [My translation: And in Rambam (Laws of Damages 9:5), he [Rambam] further explains: “Since the gentiles don’t obligate anyone [to compensate others] for his own beasts of burden that damage [others], behold we judge them by their own laws [i.e. we don't compensate the gentile at all, just as he wouldn't ever compensate us if the reverse occurred]. And a gentile’s ox that gores a Jew’s ox, whether an ox that has gored previously or an ox that has never gored before, [the gentile] pays fully [whereas a Jew pays another Jew half for a goring ox, and a Jew pays a gentile nothing for a goring ox]. This is a penalty for gentiles, since they aren’t careful in keeping mitzvot and don’t pay for their damages. And if we don’t obligate them for [damages caused by] their beasts, they will not guard them, and they will cause loss to others.” The Meiri brings these words as being exact (davka), saying, “Everyone who keeps the Noahide laws, their law by us [i.e. how we treat them] is like our law by them [i.e. how they treat us], and we don’t favorably treat anyone in judicial proceedings (to Baba Qama 37).” [Rabbi Levi continues] But I have not seen that his words are accepted in halakha.]

I am presently writing an essay on the Meiri, which I hope will be published in YCT’s Meorot, as soon as I fulfill the Meorot editor’s request that I add de rigour citations of Jacob Katz. In the meantime, for a sample of what I’ll be writing, see [18].

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#14 Comment By eva On November 22, 2009 @ 6:06 pm

I recently worked for a “Religious Jew” [edited by moderator] ..who displayed discrimination towards non-jews. Everything from not allowing qualified nonjewish help to touch the cash register..as well as overnight cutting salaries(without any warning)..leaving one nonjewish woman out on the streets..unable to afford her place..At this shop also were the most hideous of items sold..sexual toys..pot trays..sayings on t shirts that would make a thug blush..what gives..can anyone explain this?

#15 Comment By Gidon Rothstein On November 22, 2009 @ 7:54 pm

Sadly, Eva, there are people who appear greatly religious but have not learned the lessons of their religions. This man may have identified with a certain group but his actions in no way reflect the ideals of that group or, certainly, of Judaism at large.

#16 Comment By Moshe On May 26, 2013 @ 4:08 am

Fundamentally Jews and non-Jews exist in different jurisdictions according to halacha. These are jurisdictions that look at the Jew and the non-Jew differently. “To what extent shall we make halacha comparable from either jurisdiction?” should really be our question. Shall we charge interest to Jews and non-Jews alike or shall we scrap it for both? There is no such thing as “separate but equal”, as we have learned from our own US jurisprudence. So if we are going to come up with a system that treats Jews and non-Jews equally, there would need to be a major overhaul of our halacha.


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[9] : http://www.edah.org/backend/JournalArticle/halbertal.pdf

[10] : http://www.talkreason.org/articles/meiri.cfm

[11] : http://www.stevens.edu/golem/llevine/rsrh/Jews_Gentiles_and_Egalitarianism_2.pdf

[12] : http://www.stevens.edu/golem/llevine/rsrh/talmudic_judaism_society.pdf

[13] : http://www.stevens.edu/golem/llevine/rsrh/humanism_judaism_m_hirsch_1.pdf

[14] : http://www.stevens.edu/golem/llevine/rsrh/problems_diaspora_hoffman.pdf

[15] : http://uriltzedek.webnode.com/news/rav-ahron-soloveichik-civil-rights-and-the-dignity-of-man

[16] : http://www.yutorah.org/lectures/lecture.cfm/704650/Scholars_and_Friends:_R

[17] : http://www.urimpublications.com/Merchant2/merchant.mv?Screen=PROD&Store_Code=UP&Product_Code=Eyes

[18] : http://michaelmakovi.blogspot.com/2009/09/acme-of-religiosity-is-judaism-theology.html

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