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The Torah Learning Library of Yeshivat Chovevei Torah

Unequal Justice? – Does Halakha Tolerate Unethical Behavior Towards the Other? Part 1: Acts of Financial Aid and Assistance

by Rabbi Dov Linzer (Posted on July 14, 2016)
Topics: Halakha & Modernity, Non-Jews & Other Religions

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Introduction – Three Categories of Distinctions

In halakha, many distinctions can be found between the treatment of Jews and Gentiles.  The point here is not in regards to ritual matters, such as marriage, or food, or houses of worship, but in regards to what we would call in a secular context civil and criminal law.  Broadly speaking, we can identify three categories of such distinction:

  1. Acts which provide aid to another person. These are laudable acts, which are at times required by halakha, but which the absence of performing them would not be considered in general society to be wrongful behavior, and hence not required by secular civil law. Examples include gifts to the poor or lending money without interest.  
  2. Acts against another’s property.  Examples include theft, overcharging, and vandalizing or damaging another’s property. The civil side of this would relate to a person’s obligation to make restitution if he had stolen or damaged another person’s property.
  3. Acts against another’s person.  Examples include personal injury and murder.  The civil side of this would be the question of financial liability when such acts are perpetrated.

As we will see, halakha has classically made distinctions between Jews and Gentiles in all three of these areas (although not in every instance, see below).  In Part I of this lecture, we will look at many of the distinctions found in Biblical and Talmudic law in these areas, and explore what reasons or texts might have served as the basis for these distinctions.  In Part II we will see how, in many cases, later poskim attempted to close the gap between the halakha’s treatment of Jews and its treatment of Gentiles, and what halakhic strategies were employed to do so.

Key Points

In this section, we will be looking at the ways in which the Biblical verses and Rabbinc halakha have made distinctions between Jew and Gentile in the area of acts of  financial aid and assistance.  Some key factors to be paying attention to as we work through these sources are:

  • Biblical terms
    • Achikha  – this is the only word in the Torah that is sometimes used in contrast to the Gentile (nakhri).
    • Amitkha and rey’echa – according to pshat these terms, and sometimes even achikha, could mean nothing more than “another person.”  It is Rabbinic interpretation that reads these words as “fellow Jew.”
  • Areas of distinction
    • Financial aid.  Jew/Gentile distinctions are stated clearly in the verse and in halakha.
    • Personal assistance (to help protect property and when confronted directly with person) – distinctions are less clear in the verses and less unanimous among Rabbis.
    • Protection of body and life.  In halakha this derives from prior category, but making distinctions is most morally problematic here.
  • Concept of circles of responsibility.  Does this concept make sense?  Who should be in the inner circles?  Should this apply to all the above areas of distinction?  Does this mean that some people we have no, or very minimal, obligation to?  

Acts of Financial Aid and Assistance

Lending and Gifts to the Poor

Distinctions in the area of acts of assistance can be found explicitly in the Torah.  See the verses from Devarim 23 {source 1}, Devarim 15 {source 2}, and Shemot 22 {source 3}.  How clear is it that these obligations do not extend to a Gentile?   Are these mitzvot demanding acts of basic moral behavior, or special acts of kindness?

  1. Deuteronomy  |   23:21 דברים פרק כג: כא
 

לַנָּכְרִי תַשִּׁיךְ וּלְאָחִיךָ לֹא תַשִּׁיךְ לְמַעַן יְבָרֶכְךָ ה’ א-להיך בְּכֹל מִשְׁלַח יָדֶךָ עַל-הָאָרֶץ אֲשֶׁר-אַתָּה בָא-שָׁמָּה לְרִשְׁתָּהּ.

To a stranger you may lend upon interest; but to your brother you shall not lend upon interest; that the Lord your God may bless you in all that you set your hand to in the land where you are entering to possess

 

2. Deuteronomy 15:7  |  דברים פרק טו: ז

 כִּי-יִהְיֶה בְךָ אֶבְיוֹן מֵאַחַד אַחֶיךָ בְּאַחַד שְׁעָרֶיךָ בְּאַרְצְךָ אֲשֶׁר ה’ א-להיך נֹתֵן לָךְ לֹא תְאַמֵּץ אֶת-לְבָבְךָ וְלֹא תִקְפֹּץ אֶת-יָדְךָ מֵאָחִיךָ הָאֶבְיוֹן

If there is among you a poor man of one of your brothers inside any of your gates in your land which the Lord your God gives you, you shall not harden your heart, nor shut your hand from your poor brother;

3. Exodus 22:24  |  שמות כ”ב:כד

אִם כֶּסֶף תַּלְוֶה אֶת עַמִּי אֶת הֶעָנִי עִמָּךְ לֹא תִהְיֶה לוֹ כְּנֹשֶׁה לֹא תְשִׂימוּן עָלָיו נֶשֶׁךְ:

If you lend money to any of My people that is poor by you, you shall not be to him as a usurer, neither shalt thou lay upon him usury.

In Devarim 23 {source 1}, the Torah sets up the contrast between nakhri – the foreigner, defined halakhically as the Gentile, to whom we may lend with interest, and achikha, your brother, defined halakhically as your fellow Jew, to whom with must lend money without charging interest. This distinction is also implicit in the very mitzvah to lend money to a person in need, which is described in the Torah as “your brother in your gates”{source 2}, or as “My people, the poor that is with you” {source 3}.  Both of these are acts of kindness – logically, a person should be entitled to lend with interest; it is like renting his money – someone else is getting the use of it rather than him, and he is assuming a risk of default; and a person should not be required to lend his money to anyone, let alone a poor person, who might default on the loan (and for whom the loan will be annulled when Shmita arrives).  These are special mitzvot of kindness that  the Torah demands for a fellow Jew and not for a Gentile.

 

Similarly, the agricultural gifts to the poor – the gleanings, the forgotten sheaf, and the corner of the field – need not be given to Gentiles {source 4}, a fact reflected in Ruth’s response to Boaz’s kindness in letting her, a foreigner, participate in the gleaning of the field {source 5}, and the same holds for the mitzvah of giving tzedakkah (see Rambam, Gifts to the Poor 7:7).

    4. Sifra Kedoshim, Parsha 1, Vayikra 19:10  |  ספרא קדושים פרשה א

[לעני ולגר תעזוב אותם] – לעני יכול לעני מאחרים תלמוד לומר לגר, אי לגר יכול לגר תושב, תלמוד לומר ללוי מה לוי בן ברית אף גר בן ברית.

[“You shall leave them (the gleanings) for the poor person and the ger” (Vayikra 19:10)] – ‘the poor person’ – perhaps this refers to a poor person from ‘the others’ (i.e., a Gentile)? The verse teaches: ‘for the ger’ (i.e., only someone connected to you). If it says ‘for the ger’ perhaps this refers to a ger toshav, a resident-alien, the verse teaches ‘to the Levite’ – just as a Levite is a member of the covenant (i.e., a Jew), so too the ger is a member of the covenant (i.e., a convert).

5. Ruth 2:10  |  רות פרק ב פסוק י

ותפל על פניה ותשתחו ארצה ותאמר אליו מדוע מצאתי חן בעיניך להכירני ואנכי נכריה

Then she fell on her face, and bowed herself to the ground, and said to him, Why have I found favor in your eyes, that you should take notice of me, seeing that I am a stranger?

Circles of Responsibility

How are we to understand why these obligations do not extend to Gentiles?  Is the message here that we have no concern for the well-being of those outside our community?  Look at the following passage from Baba Metzia 71a {source 6} which interprets the different phrases from Shemot 22 {source 3} as signaling different levels of responsibility based on our degree of connection to the person in need (and the degree of need).  Is this passage stating that we have no responsibility towards Gentiles or just that they are lower on our ladder of priorities?  Is this passage helpful in thinking about why our obligations differ between Jews and Gentiles in this regard?

6. Babylonian Talmud, Baba Metzia, 71a  |  (.בבלי, בבא מציעא (עא

תני רב יוסף: אם כסף תלוה את עמי את העני עמך, עמי ונכרי – עמי קודם, עני ועשיר – עני קודם, ענייך ועניי עירך – ענייך קודמין, עניי עירך ועניי עיר אחרת – עניי עירך קודמין.

R. Joseph taught: “If thou lend money to any of my people that is poor by thee” (Shemot 22:24): [this teaches, if the choice lies between] my people and a foreigner, ‘my people’ has preference; the poor or the rich — the ‘poor’ takes precedence; thy poor [i.e., your relatives] and the [general] poor of thy town — thy poor come first; the poor of thy city and the poor of another town — the poor of thine own town have prior rights.

The simple sense of the above passage is that we do have an obligation to Gentiles – to lend them money, and to give them tzeddakah – but that that obligation is at the bottom of our priorities.  We must first take care of those closest to us – our relatives, the poor of our town, and the poor of our people, before we take care of those who are further from us.  However, it should be noted that almost all poskim assume that we have no tzeddakah obligations to Gentiles (although we might have other obligations – see Part II).

This passage clarifies why there is a gap between treatment of Jews and Gentiles in the area of tzeddakah and acts of chesed.  The environmental movement has a slogan: “Think globally; act locally.” While we should care for the well-being of the entire planet and all people, we only have a limited amount of time, money, and resources.  We cannot fix all the problems of the planet and we have to start somewhere.  The best way to address the global problems is for each group focuses its efforts locally, while remaining conscious of and sensitive to the larger, global issues.

In regards to inter-personal ethics, it is also in our nature to feel a greater sense of responsibility towards those who are closest to us.  The Torah and halakha’s understanding of our ethical obligations is consistent with this intuition: the greater the degree of connection, the greater the obligation towards that person.  

Thus, when it comes to proactive acts of kindness, tzedakkah and the like, I do not find it problematic that our primary obligation is towards our fellow Jews.  This is completely in keeping with an ethically-based system of priorities of obligation.  It is the following sections –acts against another’s property, person, or life – where the halakhic distinctions between Jews and Gentiles present a much greater challenge to our ethical sensibilities.

[I do believe that even in cases of tzeddakah and the like there is a problem when we only “act locally” and do not “think globally,” when we think we have no obligation towards, or even any care about, the larger world.  I can’t tell people how much money they should give to universalist causes as opposed to Jewish ones; but I tell them that it shouldn’t be zero.  Even giving $1 to a universalist cause sends a message to oneself that one is also responsible for the world at large and the well-being of its inhabitants.  Whether this obligation is a halakhic one of tzeddakah as the passage above would suggest, or whether it is a moral one or an obligation of a different sort (see below, discussion of sources 9-10), it is important that we do not see the entirety of our responsibility to be only towards our fellow Jews.]

You are Obligated to Sustain a Ger, not a Foreigner

Perhaps the broadest statement that appears in the Rabbinic literature regarding different levels, or circles, of responsibility is that “you are obligated to sustain a ger [a resident alien], but you are not obligated to sustain a foreigner [a regular Gentile].” {source 8}, a principle that is already implicit in the Biblical verse that states that one must give an un-slaughtered animal to a ger but one can sell it to a foreigner {source 7}.

7. Deuteronomy 14:21   |    דברים פרק יד:כא

לֹא תֹאכְלוּ כָל נְבֵלָה לַגֵּר אֲשֶׁר בִּשְׁעָרֶיךָ תִּתְּנֶנָּה וַאֲכָלָהּ אוֹ מָכֹר לְנָכְרִי כִּי עַם קָדוֹשׁ אַתָּה לַה’ אֱ-לֹהֶיךָ לֹא תְבַשֵּׁל גְּדִי בַּחֲלֵב אִמּוֹ:

You shall not eat of anything that dies of itself: you shalt give it unto the sojourner that is in your gates, that he may eat it; or you shall sell it unto the foreigner: for you are a holy people unto the Lord thy God. You shalt not cook a kid in his mother’s milk.

 

8. Bavli, Pesachim 21b   |   בבלי מסכת פסחים דף כא עמוד ב

ורבי מאיר: או – להקדים נתינה דגר למכירה דנכרי. – ורבי יהודה: הא לא צריך קרא, כיון דגר אתה מצווה להחיותו, ונכרי אי אתה מצווה להחיותו – לא צריך קרא, סברא הוא

And R. Meir?  “Or” [sell it to the foreigner] is to show that giving to a ger [toshav] takes precedence over selling to a foreigner. And R. Judah? No verse is required for this: since you are commanded to sustain the life of a ger [toshav], but you are not commanded to maintain the life of a foreigner, a   verse is not required, [for] it stands to reason [that this is so].

 

The phrase “you are commanded to sustain him” (a ger toshav but not a foreigner) is learned from the verse in Vayikra which commands, in a broad sense, for a Jew to support a person who is faltering financially {source 9}.  Notice how the Sifra first beautifully explains how critical it is to provide support at the right time, and then goes on to clarify what was already implicit in the verse – that this mandate is only to those who are close to you.  This includes not only your fellow Jew, but even the ger toshav, the one living among you [living in a time when we no longer had sovereignty over our own land, the Rabbis understood this to be referring to a Gentile who observes the Noahide laws.]  But it does not extend to the Gentile.  Notice that the Sifra states that a person’s first responsibility is to himself.  This is a classic Torah teaching – your first responsibility is to your own well-being.  This, of course, is just a natural application of the concept of circles of responsibility, where the inner circles are those closer to you, and thus the innermost circle is you, yourself.

9. Leviticus 25:35   |  ויקרא פרק כה:לה

וְכִי יָמוּךְ אָחִיךָ וּמָטָה יָדוֹ עִמָּךְ וְהֶחֱזַקְתָּ בּוֹ גֵּר וְתוֹשָׁב וָחַי עִמָּךְ:

And if thy brother grows poor, and his hand slips with you; then you shall support him, though he be a sojourner or a resident alien, that he may live with you.

 

10. Sifra, Behar, Parsha 5, no. 1   |   ספרא בהר פרשה ה, ס’ א

כי ימוך אחיך ומטה ידו עמך אל תניחנו שירד, הא למה זה דומה למשוי על גבי החמור עודנו במקומו אחד תופש בו ומעמידו, נפל לארץ חמשה אין מעמידים אותו, ומנין אם החזקת אפי’ ארבעה וחמשה פעמים חזור והחזק ת”ל והחזקת בו, יכול אפילו אתה מפסידו לתרבות רעה ת”ל עמך

גר, זה גר צדק, תושב זה גר אוכל נבילו’

וחי עמך, חייך קודמים לחייו.

“If your brother grows poor, and his hand slips with you [then you shall support him]” – you should not allow him to fall down.  What can this be compared to?  To a burden on a donkey.  While [the donkey] is in its place, one person can hold onto it and keep it upright.  Once the donkey has fallen to the ground, even five people cannot raise it up.  And from where do you learn that if you supported him even four or five times you must support him even again?  The verse teaches “and you shall support him.”  Perhaps even if this causes him a loss and leads him to a corrupt lifestyle?  The verse teaches, “[that he may live] with you”.

“A sojourner” – this is a righteous convert.  “A resident-alien” – this is a ger who eats un-slaughtered meat.  

“And he shall live with you” – your life comes before his life.

 

Although we might understand in principle the idea of circles of responsibility, it becomes harder to accept morally when the person who needs assistance is directly in front of you.  If moral responsibility is connected to degrees of proximity, then a person who is close to me not ethnically or religiously, but because I directly encounter them, should also be a person to whom I must render assistance.  This idea is expressed in the Torah’s mandate, “Thou shall not stand over your friend’s blood.”  Yet even in such cases we find that our responsibility might not extend to the person who is a foreigner.  One example of this is returning a lost object – when we directly encounter the object.  There seems to be something morally problematic with just turning away and ignoring it.  A weightier case is aiding an animal which is collapsing under its burden when the owner is present.  Does such an obligation extend to a case when the owner of the animal is a Gentile?  Would we be allowed to ignore the person in need? In these cases, the Biblical verses are less clear, and it is even somewhat debated between the Rabbis.

 

Returning Lost Objects and Aiding an Animal Collapsing under its Burden

The Torah – both in Shemot and Devarim – commands a person to return a lost object to its owner and to help someone whose donkey or ox is collapsing under its burden.  Compare the verses in Shemot {source 11} to those in Devarim {source 12}.  Who is the person who we must be helped?  What words are used to identify him in Shemot and what words are used in Devarim?  Would it seem from these verses that this assistance must be rendered to a Gentile as well?  Is there a difference between saying that one’s tzedakkah obligations are limited to a fellow Jew and saying that one’s obligation to return a lost object is limited to a fellow Jew?

11. Shemot 23:4-5   |   שמות פרק כ”ג:ד’-ה

(ד) כִּי תִפְגַּע שׁוֹר אֹיִבְךָ אוֹ חֲמֹרוֹ תֹּעֶה הָשֵׁב תְּשִׁיבֶנּוּ לוֹ:

(ה) כִּי תִרְאֶה חֲמוֹר שֹׂנַאֲךָ רֹבֵץ תַּחַת מַשָּׂאוֹ וְחָדַלְתָּ מֵעֲזֹב לוֹ עָזֹב תַּעֲזֹב עִמּוֹ:

4. If you meet your enemy’s ox or his ass going astray, you shall surely bring it back to him again.

5. If you see the ass of him that hates you lying under his burden, and would forbear to help him, you shall surely help with him.

12. Devarim 22:1-4   |  דברים פרק כ”ב:א’-ד’

(א) לֹא תִרְאֶה אֶת שׁוֹר אָחִיךָ אוֹ אֶת שֵׂיוֹ נִדָּחִים וְהִתְעַלַּמְתָּ מֵהֶם הָשֵׁב תְּשִׁיבֵם לְאָחִיךָ: (ב) וְאִם לֹא קָרוֹב אָחִיךָ אֵלֶיךָ וְלֹא יְדַעְתּוֹ וַאֲסַפְתּוֹ אֶל תּוֹךְ בֵּיתֶךָ וְהָיָה עִמְּךָ עַד דְּרֹשׁ אָחִיךָ אֹתוֹ וַהֲשֵׁבֹתוֹ לוֹ: (ג) וְכֵן תַּעֲשֶׂה לַחֲמֹרוֹ וְכֵן תַּעֲשֶׂה לְשִׂמְלָתוֹ וְכֵן תַּעֲשֶׂה לְכָל אֲבֵדַת אָחִיךָ אֲשֶׁר תֹּאבַד מִמֶּנּוּ וּמְצָאתָהּ לֹא תוּכַל לְהִתְעַלֵּם:

(ד) לֹא תִרְאֶה אֶת חֲמוֹר אָחִיךָ אוֹ שׁוֹרוֹ נֹפְלִים בַּדֶּרֶךְ וְהִתְעַלַּמְתָּ מֵהֶם הָקֵם תָּקִים עִמּוֹ:

1 You shall not see your brother’s ox or his sheep go astray, and hide thyself from them: you shall surely return them unto your brother. 2 And if your brother be not close to you, or if you know him not, then you shall bring it unto your own house, and it shall be with you until your brother seeks after it, and you shall restore it to him again. 3 In like manner shall you do with his ass; and so shall you do with his garment; and with all lost thing of your brother’s, which he has lost, and you have found, shall you do likewise: you may not hide thyself.

4 You shall not see your brother’s ass or his ox fall down by the way, and hide yourself from them: you shalt surely help him to lift them up again.

In some ways, these two mitzvot are similar to the mitzvot of tzedakkah and lending money without interest.  Both sets of mitzvot obligate a person to extend a kindness – money or effort – on behalf of another person.  However, these latter mitzvot ask a person not to give of his own money to another, but to help protect another’s property.  No money is being asked of the person, just his time and effort, and the choice to not render assistance here is more morally problematic than the choice to not give charity or loan money.  Moreover, it is not a question of some abstract person out there who needs assistance – in both cases the person directly encounters the situation, and in the case of the faltering animal, one is directly confronted with the person who needs help.

As far as the Biblical verses are concerned-  the ones that appear in Shemot do not use the possibly limiting word of achikha, but rather speak of an obligation towards a person’s enemy, oy’yivkha or son’akha.  The point of the verse seems to be – there is never an excuse to not help a person in need, regardless of who that person is.  However, the verses in Devarim use the word achikha multiple times, and – following standard Rabbinic interpretation of that term – could be read to exclude the case of the Gentile.  

 

Helping a Collapsing Animal

Reflecting this ambivalence, we find that the Tannaim debate whether these obligations extend to Gentiles. The Gemara Pesachim {source ‎13} rejects the possibility that the “enemy” of the verse could refer to a Gentile; it is clear that one’s obligation can only extend to a fellow Jew. Similarly, Mechilta of R. Yishmael {source ‎14} states that one’s obligation does not extend to a helping a Gentile’s animal, even if the load belongs to a Jew. This could be for one of two reasons: (a) it is assumed that the primary obligation relates to the loss of the animal, not the load, or (b) it is assumed that the owner of the animal is with his animal, and the obligation relates to helping the person in front of you (this second approach is implicit in the passage from Midrash Tannaim Devarim {source ‎15}).  Either way, the point is clear: there is not an obligation to help the Gentile in this case.  As stated explicitly in Midrash Tannaim {source ‎15}, the concern is only for the financial loss or emotional suffering of a Jew.

The position that one has no obligation to help a Gentile whose animal is struggling – and that at most there is an obligation to be concerned for the suffering of the animal – is the tacit assumption of the Bavli as well (see Baba Metzia 32b).

 

13. Bavli Pesachim 103b (see also Tosefta BM 2:26)  |  (:בבלי פסחים (קיג

כי תראה חמור שנאך רבץ תחת משאו מאי שונא? אילימא שונא נכרי – והא תניא: שונא שאמרו – שונא ישראל, ולא שונא נכרי. “If you see the donkey of your enemy crouching under its burden” (Shemot 23:5). Who is the “enemy”? Perhaps this means a Gentile enemy? But we taught in a braitta: “The enemy that is spoken about is an Israelite enemy, and not a Gentile enemy”.

14. Mechilta of R. Yishmael on Shemot 23:5  |   מכילתא דרבי ישמעאל על שמ’ כג:ה

פעמים שאתה חדל פעמים שאתה עוזב; כיצד, חמור של ישראל ומשאו של גוי, עזוב תעזוב עמו, חמור של גוי ומשאו של ישראל, וחדלת מעזוב לו There are times when you must “forbear” and there are times when you must “help”.  How so?  If the donkey belongs to an Israelite and the burden belongs to a Gentile, “you shall surely help with him.”  If the donkey belongs to a Gentile and the burden belongs to an Israelite, “you shall forbear from assisting him.”

15. Midrash Tanaaim on Devarim 22:4   |   מדרש תנאים לדברים פרק כב:ד

חמור אחיך פרט לגוי ואם היה המשא של ישראל ואין הגוי מחמר אחר בהמתו הרי זה חייב לפרוק ולטעון משום צער ישראל “The donkey of your brother” – this excludes that of a Gentile.  And if the burden belongs to an Israelite and the Gentile is not leading his donkey, then one is obligate to unload and reload the animal because of the suffering of the Israelite.

In contrast, Tosafot {source ‎16} quotes a Sifrei (not found in our current manuscripts of the Sifrei) that interprets the animal of “your enemy” in the Biblical verse to refer to animal of a Gentile, just like R. Yoshaya did in the case of the mitzvah of returning a lost object {source ‎19}.  He rejects this because it runs counter to the Bavli’s approach that this obligation does not extend to a Gentile.

Another echo to a more inclusive approach can be found in Tosefta Baba Metzia {source ‎17‎17} which states that one has an equal obligation to help a Gentile as he does a Jew.  There is an exception to this demand – a Jew may not provide assistance to the Gentile if the load consists of idolatrous wine. While the Gemara (Baba Metzia 32b) infers from this exception that one’s obligation cannot be of a Biblical nature, it is not clear that that is the original position of the Tosefta (see Tosefta Kifshuta, ad. loc  and Mechilta, Horowitz ed., p. 325, note on line 10).

16. Tosafot Baba Metzia (32b), s.v. vi’Ee Lav  |  תוספות בבא מציעא (לב:) ד”ה ואי לאו

וא”ת והלא בספרי דורש שונאך אפילו שונא עובד כוכבים וי”ל דאסמכתא בעלמא היא דבערבי פסחים (פסחים דף קיג: ושם) מוקי בשונא ישראל. [The Gemara assumes that there is no Biblical obligation to provide assistance to the Gentile whose animal is faltering.]  But one can ask – that in the Sifrei they interpret the word “your enemy” to refer to a Gentile who is your enemy [and thus you do have a Biblical obligation to help the Gentile]!  One can answer that that is merely a “support” [and not a real derivation of a Biblical law], for in Pesachim (113b) it is stated that that phrase refers to a Jewish enemy.

17. Tosefta Baba Metzia 2:27   |   תוספתא בבא מציעא (ליברמן) פרק ב

[כז] ראה חמורו של גוי חייב ליטפל בו כדרך שמיטפל בשל ישראל אם היה טעון יין נסך אין רשיי ליגע בו If one saw the donkey of a Gentile, he is obligated to assist it, just as he would assist that of an Israelite.  But if it is carrying a load of idolatrous wine, he is not permitted to even touch it.

Lost Objects

A parallel debate of Tannaim exists regarding the mitzvah to return lost objects, likely reflecting the differences in the Biblical terms used in Shemot and Devarim, respectively.  Mechilta of R. Shimon bar Yochai {source ‎18} concludes – based on the verse in Devarim – that one need not return the lost object of a Gentile (this is also the conclusion of Bavli, Baba Kamma 103b, see the discussion in Section B, source 23).  Notice how – due to the sensitivity of this topic – this source refers to “others” and not explicitly to “Gentiles,” so as not to state explicitly that this obligation does not extend to Gentiles (see also above, source ‎4).

In contrast, Mechilta of R. Yishmael quotes the position of R. Yoshaya, who states that phrase “your enemy” includes – or refers primarily to – a Gentile {source ‎19}.  The statement that “your enemy” refers to Gentiles is a harsh one, defining the world in a very we/them dichotomy.   Gentiles are not just the “other”; they are the enemy.  R. Yoshaya, however, is not referring to all Gentiles, but only to Gentiles who worship idols.  These are identified as our (theological) enemies.  The irony is that this harsh interpretation of the phrase “your enemy” results in a halakha that demands greater concern for the property of a Gentile. We are commanded, according to this, to return the lost object even to a person who is as distant from us as possible – he is “other” in terms of tribal and ethnic identity, and he is “other” in terms of his religious and theological identity as well. It is worth contrasting this opinion to the two opinions that follow.  For R. Eliezer and R. Yitzchak our obligations may bridge a religious divide, but they do not bridge the divide of ethnic and familial identity.

18. Mechilta of R. Shimon bar Yochai on Shemot 23:4   |   מכילתא דר’ שמעון בר יוחאי על שמ’ כג:ד

את שור אחיך אין לי אלא אחיך אויבך מנין ת”ל שור אויבך מכל מקום. יכול אף שלאחרים כן ת”ל אחיך מה אחיך שהוא עמות עמך כך כל אדם שהוא עמות עמך “Your brother’s ox” (Devarim 22:1).  I only know that you are obligated regarding your brother.  How do I know even regarding your enemy?  The verse teaches: “Your enemy’s ox” (Shemot 23:4) – regardless.  Perhaps this even includes an ox of “others”?  The verse teaches “your brother” – just as your brother is your colleague [in mitzvot – see Shavuot 30a], so this verse refers to all people who are your colleagues [but not to “others”].

19. Mechilta of R. Yishmael on Shemot 23:4  |  מכילתא דרבי ישמעאל על שמ’ כג:ד

שור אויבך. זהו גוי עובד אלילים, דברי רבי יאשיה, וכן מצינו שעובדי אלילים קרויים אויבים לישראל בכל מקום, שנאמר +דברים כג י+ כי תצא מחנה על אויביך, +שם /דברים/ כא י+ כי תצא למלחמה על אויביך. – רבי אליעזר אומר, בגר שחזר לסורו הכתוב מדבר. – רבי יצחק אומר, בישראל משומד הכתוב מדבר “Your enemy’s ox” – this is a Gentile who worships idols, these are the words of R. Yoshaiya.  Similarly, we find everywhere that those who worship idols are called enemies to Israel, as it says: “When you go out with troops against your enemies” (Devarim 23:10) and “When you go out to war against your enemies” (Devarim 21:10).   R. Eliezer says: the verse is referring to a convert who has returned to his [pagan] ways.  R. Yitzchak says: the verse is revering to an Israelite who is an apostate.

Protecting Property and Life

In the case of providing financial assistance we saw differences between Jew and Gentile in specific mitzvot – lending money, giving tzedakkah, and giving agricultural gifts – and a general principle which reflected this difference: “A ger you are obligated to sustain; a foreigner you are not obligated to sustain.”  Here as well, in the case of providing personal aid to prevent a loss to a person’s property, a more general principle emerges from the specific mitzvot.  We have seen that – at least according to the most dominant voices – there is a difference in law between Jew and Gentile in specific mitzvot, namely, helping an animal collapsing under its load and returning lost objects.   The fact that, according to the way halakha concludes, we are not obligated to return a lost object to a Gentile becomes a general principle that we are not obligated to help protect the property of a Gentile.  This is because the Rabbis only derived the obligation to protect the property of a Jew from the mitzvah of returning a lost object.  They discuss this obligation in regards to protecting land – although land is not technically “lost”, since it is always in the same place, it could become lost in another sense –it could suffer a financial loss.  The phrase “any lost object” indicates for the Rabbis that our obligation to return a lost object includes an obligation to prevent someone else’s property from suffering a loss {sources 20 and 21}.  

20. Midrash Tanaaim to Devarim 22:3   |   מדרש תנאים לדברים פרק כב

ד”א לכל אבד’ אח’ לרבות קרקעו שאם ראה מים שוטפין ובאין להשחית בנין חבירו או שדהו חייב לגדור בפניה (ולמ) [ולמנען]: ד”א לכל אבדת אחיך אבידת גופו שחייב (לרפותו) [לרפאותו] אם חלה Another explanation to “any lost thing of your brother” – to include land – if you see water that is flooding and proceeding onwards and coming to destroy your friends building or field, that you are obligated to put up a wall and prevent it [from damaging your friend property],  Another explanation to “any lost thing of your brother” – the loss of his body, that you are obligated to heal him if he falls sick.

22. Bavli, Baba Metzia, 30b  |  (:בבלי, בבא מציעא (ל

תניא נמי הכי: מצא טלית וקרדום, [דף לא ע”א] באסרטיא… הרי זו אבידה… ראה מים ששוטפין ובאין – הרי זה גודר בפניהם. אמר רבא: לכל אבידת אחיך – לרבות אבידת קרקע. It has been taught likewise: If one finds a garment or a spade on a road… it is lost property… If one sees water overflowing [its banks] and proceeding [onwards], he must put up a wall before it.  Rava said: “[And so shalt you do] with any lost thing of your brother’s” – this is to include the loss of real estate.

In a similar fashion, the Rabbis understood that we have an obligation to prevent someone from suffering bodily harm, and certainly from dying.  This stands to reason – if we have to protect someone’s property, then we should certainly have to protect their body.  The Rabbis saw this obligation indicated by the verse itself through the phrase “return it – the lost object – to him,” which, because of the lack of the neutral pronoun in Hebrew, could also be read as “return him to him,” i.e., protect his person {sources 22 and 23, and also earlier source 20 regarding the obligation to heal}.  The fact that this does not extend to the Gentile is implicit in these sources, and made explicit in Bavli Avoda Zara 26a, and elsewhere.

It goes without saying that distinctions in this area are much harder to understand.  It is one thing to say that we do not have to expend our time and effort to help every person, even when we directly see them in need or encounter their property that is in danger.  It is quite another thing to say that we can turn our back on them when their very person is in danger – when their health or life is at risk.  We will return to look at this in section C which deals with acts against person and property.

22. Sifrei, Devarim, no. 223   |  ספרי דברים פרשת כי תצא פיסקא רכג

והשבותו לו, אף את עצמו אתה משיב לו “You shall return it [or ‘him’] to him” – even his own self you shall return to him.

23. Bavli, Sanhedrin 73a    |    (.בבלי, סנהדרין (עג

גופא: מנין לרואה את חברו שהוא טובע בנהר או חיה גוררתו או לסטין באין עליו שהוא חייב להצילו תלמוד לומר לא תעמד על דם רעך. והא מהכא נפקא? מהתם נפקא: אבדת גופו מניין – תלמוד לומר והשבתו לו! – אי מהתם הוה אמינא: הני מילי – בנפשיה, אבל מיטרח ומיגר אגורי – אימא לא, קא משמע לן. [To revert to] the above text: From where do we learn that if a man sees his neighbor drowning, mauled by beasts, or attacked by robbers, he is bound to save him? From the verse, “You shalt not stand by the blood of thy neighbor.” But is it derived from this verse? Is it not rather from elsewhere? [As we taught:] “From where do we know [that one must save his neighbor from] the loss of himself? From the verse, ‘And thou shalt restore it to him’ [reading it as: ‘him to himself’]!”—From that verse I might think that it is only a personal obligation, but that he is not bound to take the trouble of hiring men [if he cannot deliver him himself]: therefore, this verse teaches that he must.

 

Conclusion of section A

In conclusion, we note that when it comes to obligations to give assistance with one’s money – either through interest-free loans or straight out gifts – the Biblical verses underscore the obligation to one’s fellow Jew, and – either explicitly or implicitly – not to the Gentile.  This can be understood in terms of setting priorities or a difference between legal and moral obligations.  When it comes to providing assistance with one’s time and effort, to help protect another person’s property and when we directly encounter a person in need – we find that the Biblical verses are less clear about whether there should be a distinction between Jew and Gentile, and that this is reflected in differing opinions in the Tanaaim.  The position of the Bavli, however, is that one need not help a Gentile in these cases.   While there need not be a legal obligation in such cases, it would seem that a moral obligation should be present, and its absence is troubling. What is most troubling, however, is that there seems to not even be an obligation to render assistance when one’s body or life is at risk.  We will see in Section II how some later poskim worked to address these discrepancies of treatment between a Jew and a Gentile.