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The Torah Learning Library of Yeshivat Chovevei Torah

Unequal Justice? – Does Halakha Tolerate Unethical Behavior Towards the Other? Part 2: Acts Against Property

by Rabbi Dov Linzer (Posted on July 20, 2016)
Topics: Halakha & Modernity, Non-Jews & Other Religions, Talmud, Bava Kamma, Nezikin, Bava Metzia

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Key points

In our discussion of distinctions in the area of acts against property, pay attention to the following key points as we work through our sources:

  • Biblical terms – amitcha and rei’echa are the key terms that are used in this area of law.  At a pshat level these probably mean only “another person.”  Rabbinic interpretation reads it as “fellow Jew”.  Notice how one source {source 36} recognizes that these terms need not be read to exclude Gentiles.
  • Permitting act or exempting from liability? – where distinctions exist, do they permit unethical acts, such as overcharging, cheating, stealing, damaging, etc., or do they only exempt from liability after the fact?
  • Different degrees of severity – Consider three categories: (1) Stealing; (2) Lying/cheating/ misleading in a business transaction; (3) Not correcting a mistake, or paying a debt, or returning a lost object.  In which of these cases does halakha make distinctions between Jew and Gentile?  Are such distinctions justifiable even in the third category?
  • Terms for Gentiles – note how the printed Talmud text has adopted censored terms for Gentiles when dealing with these more problematic areas.  Note how even some of the Tannaitic material speaks about “others” rather than “Gentiles” in these cases.
  • Historical and societal context – note how at times there are differences between the Bavli and the Tannaitic  sources and the Yerushalmi.  
  • Explanations and Justifications – Note how for the first time we find a justification given in the Talmud (“God made their money permitted to Israel”) – clearly an explanation was more needed here than in the case of not giving tzedakkah to Gentiles.  Can this explanation be understood in the historical-political context of the Rabbis?  Can it work on a moral level?  Does it seem like the distinctions are rooted in an understanding of an existential difference between Jews and Gentiles, or because of a perception of Gentile’s actions and behavior?

 

 

Biblical terms and Rabbinic Interpretation

When it comes to acts against another’s property, halakha also regularly makes distinctions between the property of a Jew and that of a Gentile.  It is important to point out that in many if not most of these cases, the distinctions are not clearly spelled out in the Torah, and are only articulated or made explicit by the Rabbis. Although in a number of these cases the Torah uses the word ‘achikha,’ ‘your brother,’ it is not contrasted with the ‘nakhri,’ the ‘foreigner,’ and it is not underscored that he is ‘in your gates.’  It is thus possible that at the pshat level this term means ‘your fellow person,’ and not ‘your fellow Jew.’  The Rabbis, however, consistently interpret this to mean ‘your fellow Jew,’ and state that these obligations and prohibitions do not apply to Gentiles.

Overcharging

In the Gemara Bekorot {source 2424}, the Talmud takes for granted that the laws of overcharging (i.e., more than the going rate; there is no restriction on the amount of markup or profit that is allowed) apply only in transactions with a fellow Jew, based on the word amitkha, ‘your fellow,’ or achikha.

24. Bavli, Bekhorot (13b)   |   (:בבלי,בכורות (יג

[וְכִי תִמְכְּרוּ מִמְכָּר לַעֲמִיתֶךָ אוֹ קָנֹה מִיַּד עֲמִיתֶךָ אַל תּוֹנוּ אִישׁ אֶת אָחִיו:] לעמיתך למה לי? אמרי: לעמיתך אתה מחזיר אונאה, ואי אתה מחזיר אונאה לגוי; לגוי – מאל תונו איש את אחיו נפקא!

[“And if thou sell anything unto thy neighbor, or buy anything of thy neighbor’s hand, ye shall not oppress (i.e., overcharge) one man his fellow (Lev. 25:14)]. What does ‘unto thy neighbor’ teach? It is to say: to your neighbor you must return the overcharge, but to a Gentile you need not return the overcharge.  To a Gentile?  That can be learned from [the end of the verse:] ‘you shall not oppress (overcharge) one man his fellow.”

The discrepancy of treatment is highlighted in Rambam {source 25} who states that although a Jew is not bound by the laws of overcharging in transactions with a Gentile, the reverse is not the case: a Gentile is bound by these laws when doing business with a Jew. In short, the halakhot in this area, when governing transactions between a Jew and a Gentile, consistently favor the Jew.

25. Rambam, Laws of Sale, 13:7    |     רמב”ם הלכות מכירה יג :ז

הגוי אין לו הונייה שנאמר איש את אחיו, וגוי שהונה את ישראל מחזיר הונייה בדינין שלנו, לא יהיה זה חמור מישראל.

A Gentile has no overcharging, as it says “One man his fellow.” But a Gentile who overcharged a Jew must return the overcharge according to our laws; the Jew should not be more disadvantaged than had he been overcharged by another Jew.

It is important to note that the distinctions in law between Jew and Gentile in monetary matters may more be in the area of civil liability, i.e., compensation after the fact.  The halakha does not necessarily permit a person to act unethically towards another person, Jew or Gentile.  While a person may not be required to return the money that was overcharged to the Gentile, he would be in violation if he knowingly overcharged.  Similarly, as we will see below, a Jew may not be required to compensate for damages that he or his animal has done to a Gentile’s property, or return money that was given to him in error by a Gentile, but that does not necessarily give him license to inflict such damage or take such money intentionally.

 

For example, Rambam states in Laws of Sale {source 26} that a Jew cannot deceive another person, Jew or Gentile, whether in matters of commerce or in other matters.

26. Rambam, Laws of Sale, 18:1  |  רמב”ם הלכות מכירה יח:א

אסור לרמות את בני אדם במקח וממכר או לגנוב את דעתם, ואחד גויים ואחד ישראל שוים בדבר זה, היה יודע שיש בממכרו מום יודיעו ללוקח, ואפילו לגנוב דעת הבריות בדברים אסור.

It is prohibited to deceive people in commerce, or to mislead them, and this applies equally to a Gentile and to a Jew.  If one knows that there is a defect in his wares, he must inform the purchaser.  It is even forbidden to deceive people in words (i.e., even in non-business matters).

What remains unclear is whether this and similar restrictions are rooted in a concern for the other, i.e., the Gentile and his property, or are rooted in the fundamental wrongness of such behavior from a characterological perspective.  This focus emerges from Rambam’s similar ruling in Laws of Character Traits {source 27}.  How does Shulkhan Arukh HaRav (R. Shneiur Zalman of Liadi, 1745-1812) {source 28} understand the problem of deceiving a Gentile?

27. Rambam, Laws Character Traits, 2:6   |   רמב”ם הלכות דעות ב:ו

אסור לאדם להנהיג עצמו בדברי חלקות ופיתוי, ולא יהיה אחד בפה ואחד בלב אלא תוכו כברו והענין שבלב הוא הדבר שבפה.

ואסור לגנוב דעת הבריות ואפילו דעת הנכרי, כיצד לא ימכור לנכרי בשר נבילה במקום בשר שחוטה… ולא יפתח לו חביות שהוא צריך לפותחן למוכרן כדי לפתותו שבשביל כבודו פתח וכן כל כיוצא בו. אפילו מלה אחת של פיתוי ושל גניבת דעת אסור, אלא שפת אמת ורוח נכון ולב טהור מכל עמל והוות.

A person is forbidden to act in a smooth-tongued and seductive manner. He should not speak one thing outwardly and think otherwise in his heart. Rather, his inside should be like his outside. What he feels in his heart should be the same as the words on his lips.

It is forbidden to deceive people, even a Gentile. For example, one should not sell a gentile the meat of an animal which has not been ritually slaughtered as if it were ritually slaughtered meat… He should not open casks [of wine] supposedly for his colleague which he must open for sale, in order to deceive him into thinking that they have been opened in his honor. The same applies with all matters of this sort.

It is forbidden to utter a single word of deception or fraud. Rather. one should have only truthful speech, a proper spirit and a heart pure from all deceit and trickery.

28. Shulkhan Arukh HaRav, Laws of Overcharging    |   שולחן ערוך הרב חושן משפט הל’ אונאה

[יא] וכל דין אונאה אינו אלא בישראל אבל נכרי הטועה בשיווי המקח או בשיווי המטבע אין צריך להודיעו טעותו שנאמר אל תונו איש את אחיו אחיו ולא נכרי.

אבל אסור להטעותו בין בשיווי מקח בין בחשבון כמו שיתבאר בהלכות גזלה. וכן כל מרמה שבעולם אסורה במקח וממכר אפילו לנכרי כגון אם יש מום במקחו צריך להודיעו ללוקח אף על פי שהוא נכרי שהרי זה מטעהו וגונב דעתו אם אינו מודיעו והרי זה כגונב ממנו ממון ואסור מן התורה כמו שיתבאר בהלכות גזלה:

[יב] ואפילו לגנוב דעתו בדבר שלא יגיע לו הפסד להנכרי אסור מדברי סופרים כגון למכור לו בשר נבילה בחזקת שחוטה. ואף לגנוב דעת הבריות בדברים אפילו במלה אחת של שפת חלקות או גניבת דעת או במעשה שמראה שעושה בשבילן ואינו עושה אסור מפני שמחזיקים לו טובה בחנם:

[11] All the laws of overcharging only apply to a Jew, but regarding a Gentile who made an error regarding the value of an item or of a coin, there is no need to inform him of his error, as it states, “Thou shall not oppress one man his brother” – his brother, but not a foreigner.

However, it is forbidden to deceive him whether regarding the cost of an item or whether in the tabulation of the cost, as it is explained in Laws of Theft.  And any deceit in the world is forbidden in matters of commerce, even regarding a Gentile.  For example, if there is a defect in an item that a person is selling, he must inform the buyer, even if the buyer is a Gentile, for to do otherwise he would be deceiving him and misleading him, and this is equivalent to stealing money from him, which is forbidden according to the Torah, as is explained in the Laws of Theft.

[12] Similarly, it is forbidden rabbinically to mislead a Gentile even in a matter in which he will not incur financial loss.  For example, it would be forbidden to sell him meat that was not ritually slaughtered if he believed it to be ritually slaughtered.  It is even forbidden to mislead people purely in conversation, even one word of flattery or a misleading word, or through one’s actions, that one appears to be doing something for the other person’s sake, which he is not in fact doing.  All of this is forbidden because it leads the person to feel a debt of gratitude for naught.

Shulkhan Arukh haRav creates two categories: deceit and intentional overcharging in business matters is Biblically prohibited as an act of theft, whereas deceit in other matters is only Rabbinically prohibited, and is a problem of bad character traits. Both are prohibited in interactions with a Gentile.  Significantly, for him, it is a violation (we would say, “a crime”) to intentionally cheat, overcharge, or steal from a Gentile.  The distinction in law is only in the civil arena: if one unintentionally overcharged, there is no requirement to return the difference and rectify the situation.  We will continue to explore this issue, below, on the topic of theft from a Gentile (sources 30-35).

 

This interpretation is consistent with the Talmudic discussions in this and other matters.  Still, such a distinction even in civil matters is not a trivial one, and does not sit well with our sense of a universal ethics.  We will return to this in Part II.

 

Theft

When it comes to theft itself, we find that this matter is debated in the Talmud – not just whether one must return money that was stolen (the civil matter), but whether one is permitted to knowingly steal from a Gentile (the criminal matter).   This is referred to as the question of gezel goy, stealing from a non-Jew.

 

Terms used to refer to Gentiles

First, though, a word on the Talmudic term for Gentiles in general, and specifically in its discussions on this topic.  In general, the term that we find for Gentile in our printed Vilna edition of the Talmud is akum, which is an abbreviation of over kokhavim u’mazalot, a worshipper of the stars and zodiac.  However, the term found in all the manuscripts is either goy, ‘the nations,’ i.e., a Gentile, or nakhri, a foreigner.  These changes to the original text came about in the Middle Ages as a result of self-censorship, once apostates began to inform the Church about the Talmudic passages that spoke negatively or issued discriminatory legal rulings regarding non-Jews {source 29}.

29. “Text Study and Censorship,” from The Jewish Religion: A Companion, Oxford University Press, Louis Jacobs

The censorship that did exist was of two kinds–external and internal. External censorship was exercised by governmental bodies who ordered the excision from Jewish publications of passages held to be attacks on Gentiles or on the Christian faith.

The Jewish authorities, too, anticipated this type of intervention by themselves deleting or altering such “dangerous” passages.

For instance, the words oved avodah zarah (“a worshipper of strange gods”) in the Talmud was altered to read oved kokhavim u-mazalot (“a worshipper of stars and planets”), usually abbreviated to akum, an obviously safe reading since neither in the Roman Empire nor Babylon in Talmudic times nor in Christian Europe in the Middle Ages were Gentiles star worshippers. It is ironic that some Christian would-be censors read the word akum itself as an abbreviation of oved Christus u-Miriam (“worshipper of Christ and Mary”).

The self-censorship was even more drastic when it came to Talmudic passages that dealt with the topics that were deeply morally problematic from an outside perspective, such as the question of the permissibility of stealing from a non-Jew.  In such cases, the terms used were Kinaani, ‘a Canaanite,’ or Kinaani anas,’ ‘a violent Canaanite,’ or even Amaleiki, ‘an Amalekite.’  This allowed the Jews to claim that these passages only referred to ancient, long dead, pagan or evil nations, and had no relevance to contemporary circumstances.

It is worth noting that in a number of sensitive Tannaitic texts on these topics, the word for Gentile is not goy or nakhri but acheirim, “others” (see Section A, sources 3 and 8, regarding agricultural gifts to the poor and returning lost objects, and Section C, source 40, regarding the liability for murder).  This word seems to have been chosen so that the exclusion of Gentiles would not be stated so explicitly.

 

Passages regarding Theft

For example, in the following passage from Baba Metzia {source 30}, the Talmud states that a certain Tanna holds that it is permitted to cheat (defined here denying him money that is coming to him) and even to steal from a Gentile.  The word ‘Gentile,’ goy, that appears in the original text, has been replaced by the word Amaleiki in the printed text, and the final phrase ‘it is permitted to steal from a Gentile,’ has been removed completely.  

30. Bavli, Baba Metzia 111b (With compared manuscript and print variations)   |  (:בבלי, בבא מציעא (קיא

נוסח הדפוס

האי רעך מאי עבדי ליה ההוא מיבעי ליה לכדתניא רעך ולא עמלקי עמלקי מאחיך נפקא חד למשרא עושקו וחד למשרא גזלו

נוסח כת”י

אי רעך מאי עבדי ליה ההוא מיבעי ליה לכדתניא רעך ולא גוי גוי מאחיך נפקא חד למישרא עושקו וחד למשרא גזילו וקא סבר גזל גוי מותר

[How does this Tanna] interpret “your fellow”?  As it teaches in the Braitta: “‘Your fellow’ – and not an Amalekite [original reads: ‘Gentile’],” An Amalekite [original: ‘Gentile’] – we already know that there is no prohibition from the word “your brother”! [The answer is:] One of these comes to permit denying him money that is coming to him, and one comes to permit stealing from him, [original: ‘and this Tanna is of the opinion that it is permitted to steal from a Gentile.’

The above passage {source ‎30} mentions in passing that there is an opinion that one is allowed to steal from a Gentile.  This question – whether theft from a Gentile is permitted or forbidden – is a matter of some debate in the Tannaitic sources and the Talmud.  Two halakhic midrashim state that theft from a Gentile is permitted (Sifrei Devarim 344 and Midrash Tannaim on Devarim 33:3), while two others state that it is forbidden (Sifra Behar 9:2, paralleled in Midrash Tannaim on Devarim 20:14).  Similarly, one passage in the Yerushalmi assumes that such theft is permitted (Baba Kamma 4:3), whereas another assumes – or at least refers to the position – that it is forbidden (Baba Metzia 2:5).  

In regards to the Bavli, it is significant that it never quotes the position that theft from a Gentile is permitted without qualifying that this is only one side of a debate.  As we will see below {sources ‎33-‎35}, the Bavli goes further and adopts the position such theft is forbidden is the authoritative one.  This stance of the Bavli is consistent with the view of scholars that the Bavli had a more nuanced and multivocal approach towards Gentiles than the Yerushalmi, probably owing a good deal to the fact that the Jews under Sasanian rule suffered much less oppression than those under Roman rule (for further discussion of the historical context, see below under the discussion of source ‎36).

Two different Toseftas nicely present the two sides of this debate.  Tosefta Avoda Zara {source ‎31} states that theft from a Gentile is not only exempt from prosecution, but permissible.  In contrast, Tosefta Baba Kamma {source ‎32} assumes that theft from a Gentile is forbidden and even more stringent than theft from a Jew because such theft might lead to hillul HaShem, desecration of the Divine Name, that is to say, such an act would be seen as immoral and bring disrepute on God and the Torah’s teachings.  What ambiguity lies in this Tosefta’s ruling?

31. Tosefta Avoda Zara 8:5    |    תוספתא עבודה זרה ח’:ה

על הגזל גנב גזל וכן מוצא יפת תואר וכן כיוצא בו גוי בגוי וגוי בישר’ אסור וישר’ בגוי מותר[Gentiles are commanded by the Noahide laws] on theft – whether he burgles or steals, and similarly if he takes a beautiful woman [in battle] and anything similar – a Gentile against a Gentile and a Gentile against a Jew is forbidden; a Jew against a Gentile is permitted.

32. Tosefta Baba Kamma 10:15    |   תוספתא בבא קמא (ליברמן) י’:ט”ו

הגוזל את הגוי חייב להחזיר לגוי חמור גזל הגוי מגזל ישראל (הגוזל את הגוי ונשבע ומת חייב להחזיר) מפני חילול השםOne who steals from a Gentile must return [what he stole] to the Gentile.  Stealing from a Gentile is more strict than stealing from a Jew, for one who steals from a Gentile because of Desecration of the Divine Name.

What remains unclear regarding Tosefta Baba Kamma is whether hillul Hashem is an additional reason that theft from Gentiles is forbidden, or whether it is the only reason that it is so.  In other words, is theft from Gentiles intrinsically wrong – is it a form of theft – or is it only wrong due to how it will be perceived from the outside?

 

The question of whether theft from Gentiles is permitted, forbidden, or only forbidden because of hillul HaShem, is discussed at length in Baba Kama {sources ‎33-‎35}.  In this text, we have used parenthesis to indicate the terms used for Gentiles in the printed text, and square brackets to indicate the terms found in the original manuscripts.   In the first half of this sugya, note how both Tannaim agree that in a court case between a Jew and a Gentile, the court can apply whichever law is more beneficial to the Jew.  The debate is whether it is permitted to still find in favor of the Jew by means of circumvention.  Rabbi Akiva forbids this, not because it is fundamentally wrong, but because it may be discovered and lead to a hillul HaShem.  Neither Tanna is concerned about the basic morality of the act (see above, discussion of sources ‎27-‎28), or that there would be a prohibition against stealing from a Gentile.

33. Bavli, Baba Kama, 113a    |   (.בבלי,בבא קמא (קיג

כדתניא ישראל )וכנעני אנס) [וגוי] שבאו לדין, אם אתה יכול לזכהו בדיני ישראל – זכהו ואמור לו: כך דינינו, בדיני (כנענים) [אומות העולם] זכהו ואמור לו: כך דינכם, ואם לאו – באין עליו בעקיפין, דברי ר’ ישמעאל; ר”ע אומר: אין באין עליו בעקיפין, מפני קידוש השם.

ור”ע, טעמא דאיכא קידוש השם, הא ליכא קידוש השם – באין, וגזל (כנעני) [הגוי] מי שרי?

As it was taught: ‘Where a suit arises between an Israelite and a (violent Canaanite) [Gentile], if you can justify the former according to the laws of Israel, justify him and say: ‘This is our law’; so also if you can justify him by the laws of the nations of the land justify him and say [to the other party:] ‘This is your law’; but if this can not be done, we use means of circumvention (to find in favor of the Jew). This is the view of R. Ishmael, but R. Akiva said that we should not attempt to circumvent him on account of the sanctification of the Name.

Now according to R. Akiva the whole reason [appears to be,] because of the sanctification of the Name, but were there no infringement of the sanctification of the Name, we could circumvent him! Is then theft from a Gentile permissible?

In the second half of the sugya, the Talmud explores the questions whether theft from a Gentile is permitted {source ‎34}.  The verse that demands that one not forcibly extract a Jew who was sold to a Gentile is taken as evidence that it is Biblically forbidden to steal from a Gentile.  

One opinion (R. Yosef) suggests that the prohibition against stealing only applies to a limited class of Gentiles: the ger toshav, the resident alien, understood by the Rabbis to be a Gentile who has accepted and observes the Noahide laws.  This position is rejected, and the Gemara concludes that one may not steal from a Gentile.  Nevertheless, it remains permitted to keep money that belongs to him if it is not taken through a direct act of theft.  The first example of this is stated by Rava: one is permitted to not pay him a debt (hafka’at halvaato).

34. Bavli, Baba Kama, 113b    |   (:בבלי,בבא קמא (קיג

והתניא: אמר ר’ שמעון, דבר זה דרש ר”ע כשבא מזפירין: מנין לגזל (כנעני) [הגוי] שהוא אסור? ת”ל: אחרי נמכר גאולה תהיה לו, שלא ימשכנו ויצא, יכול יגלום עליו? ת”ל: וחשב עם קונהו, ידקדק עם קונהו!

אמר רב יוסף, לא קשיא: הא (בכנעני) בגוי, הא בגר תושב. אמר ליה אביי, והא תרוייהו גבי הדדי כתיבי: …

אלא אמר רבא, לא קשיא: כאן בגזילו, וכאן בהפקעת הלוואתו…

Has it not been taught that R. Simeon stated that the following matter was expounded by R. Akiva when he arrived from Zifirin: ‘Whence can we learn that theft from a Gentile is forbidden? The verse teaches: “After that he (i.e., the Jew) is sold (to the Gentile) he may be redeemed (by a relative),” (Lev. 25:48), which implies that he could not be forcibly retrieved by the court [without paying the redemption money to the Gentile]. You might then say that (the court) may pay him (the Gentile) less than he is worth (cf. Tosafot)? No, since it says: “And he shall reckon with him that bought him” to emphasize that he must be very precise in making the valuation with him who had bought him.’

Said R. Yosef: There is no difficulty, here (where there is no prohibition against theft, and it is only a concern of kiddush Hashem) it refers to a Gentile, whereas there (where there is a prohibition of theft, and one cannot forcibly remove the Jew who was sold to the Gentile) it refers to a ger toshav, a resident alien (a Gentile who keeps the Noahide laws and to whom we have greater responsibility and obligations). But Abaye said to him: Are the two (the Gentile and the ger toshav) not written side-by-side (in the above verse)?!…

Rava therefore said: There is no difficulty, here (in the case of the verse, where it is forbidden), it refers to theft, whereas there (when the Jew and the Gentile appear in court), it refers to the cancellation (or non-payment) of debts (which is permitted)…

The sugya continues to identify cases which are not direct theft, and thus one may keep the money or the object that belongs to the Gentile.  One need not return his lost object, and the finder may keep it for himself, and one need not inform him of a mistake that he made in a transaction in favor of the other person.  These allowances are qualified by the statement that if acting in such a way can lead to a Hillul HaShem (i.e., there is a likelihood that such actions will be discovered), then one should return to him what is his.  Significantly, the Gemara does not say that one is encouraged to always return to him what is his for the purposes of making a Kiddush HaShem through one’s moral actions.  

How acceptable do you find this middle position of the Gemara – theft from a Gentile is forbidden, but one may cancel his debts to him and need not return his lost object or correct his error?

35. Bavli, Baba Kama, 113b   |    (:בבלי,בבא קמא (קיג

אמר רב ביבי בר גידל אמר ר”ש חסידא: גזל (כנעני) [הגוי] אסור, אבידתו מותרת. גזילו אסור דאמר רב הונא: מנין לגזל )הכנעני) [הגוי] שהוא אסור? שנאמר: ואכלת את כל העמים אשר ה’ א-להיך נותן לך, בזמן שהן מסורים בידך, ולא בזמן שאינם מסורין בידך.

אבידתו מותרת, דאמר רב חמא בר גורי’ אמר רב: מנין לאבידת (הכנעני) [הגוי] שהיא מותרת? שנאמר: לכל אבדת אחיך, לאחיך אתה מחזיר, ואי אתה מחזיר (לכנעני) [לגוי]. ואימא: הני מילי היכא דלא אתי לידיה, דלא מחייב לאהדורי בתרה, אבל היכא דאתי לידיה אימא ליהדרה! אמר רבינא: ומצאתה, דאתאי לידיה משמע.

תניא, ר’ פנחס בן יאיר אומר: במקום שיש חילול השם, אפי’ אבידתו אסור.

אמר שמואל: טעותו מותרת. כי הא דשמואל זבן (מכותי) [מגוי] לקנא דדהבא במר דפרזלא בד’ זוזי, ואבלע ליה חד זוזא. רב כהנא זבן (מכותי) [מגוי] מאה ועשרים חביתא במאה, ואבלע ליה חד זוזא, אמר ליה: חזי דעלך קא סמיכנא. רבינא זבן דיקלא הוא (וכותי) [וגוי] לצלחא, א”ל לשמעיה: קדם ואייתי מעיקרו, (דכותי) [דגוי] מניינא ידע.

R. Bibi b. Giddal said that R. Simeon the pious stated: Theft from a Gentile is prohibited, keeping an article lost by him is permissible. Theft from him is prohibited, as R. Huna said: From where do we learn that theft from a Gentile is prohibited? Because it says: “And thou shalt consume all the peoples that the Lord thy God shall deliver unto thee” (Deut. 7:16) – only in the time [of war] when they were delivered in thy hand [as enemies] this is permitted, whereas this is not so in the time [of peace] when they are not delivered in thy hand [as enemies].

His lost article is permissible, as R. Hama b. Guria said in the name of Rav: From where can we learn that the lost article of a gentile is permissible? Because it says: “And with all lost thing of thy brother’s”(Deut. 12:3) – it is to your brother that you most return a lost object, but you need not return a lost object to a Gentile.  But why not say that this applies only where the lost article has not yet come into the possession of the finder, in which case he is under no obligation to look round for it, whereas if it had already entered his possession, why not say that he should return it? Said Ravina: “[the lost object of your brother’s that is lost from him] and thou hast found it” – this implies that the lost article has already come into the finder’s possession (and nevertheless, it only must be returned to “your brother”).

It was taught: R. Phinehas b. Yair said that where there is a danger of causing a profanation of the Name, even keeping a lost article of a Gentile is forbidden.

Samuel said: It is permissible, however, to benefit from his mistake. [This ruling is illustrated by the following] case, when Samuel once bought a golden bowl from a Gentile under the assumption of it being of copper for four zuz, and in addition shortchanged him one zuz. R. Kahana once bought a hundred and twenty barrels from a Gentile which were supposed to be a hundred and in addition he shortchanged him one zuz, and said to him: “See that I am relying upon you [to make sure that I have paid in full]. Rabina bought a palm-tree with a Gentile to chop up [and divide]. He then said to his attendant: Quick, bring to me the parts near to the roots, for the Gentile is interested only in the number [but not in the quality].

In considering the upshot of this extended passage {sources ‎33-‎35}, we may note that on the one hand, the Gemara concludes unequivocally that it is forbidden to steal from a non-Jew, against the position of Rav Yosef, and completely ignoring the opinion in Baba Metzia that permits it (see Tosafot, s.v. Hakhi).  However, the Gemara shows no hesitation in allowing a person to keep something of the Gentiles that he is not entitled to, especially when there is no concern that such actions will be discovered.  This is consistent with the ruling regarding overcharging – one may keep the amount overpaid, but one may not intentionally overcharge (see above, in particular source‎28).  But this does not sit well with our sense of ethics or with secular law – if a person received money that is not his, he must return it to the rightful owner.  In the case of a lost object, we might not be ethically bothered by the right to keep it if the rightful owner is not known, but it would clearly be wrong from an ethical perspective to keep it if we knew whose object it was (see Section A, sources 6-9, for a further regarding returning lost objects to a Gentile).

What is more disturbing is that the Gemara seems to condone even wilful acts of shortchanging a Gentile – a form of avoiding paying one’s debts {source ‎35}.  What is less clear is whether a person can take something through an act of intentional deceit – did Shmuel just luck out that the Gentile thought the bowl was copper, or did he tell him that it was?  As we saw earlier, according to one source {source ‎28}, taking something from a Gentile through intentional deceit is an act of theft, and forbidden.  However, this is not explicit in the Talmud, and the exact line between what is prohibited and what is permissible according to the Talmud remains unclear. [See Rambam, Laws of Theft and Lost Objects, 11:4 who writes that it is forbidden to intentionally cause a Gentile to make an error in your favor.]

 

These laws which allow taking or keeping property of a Gentile present clear ethical challenges.  We will see in Part II how certain poskim closed off this allowance.

 

 

Damages to Property

The last area of civil liability that we look at is payment for property damage.  The Mishna teaches that a Jew is exempt if his ox goes the ox of a Gentile, but in the reverse case – if the ox of a Gentile gores the ox of Jew, the Gentile must pay full damages, even though the owner of a goring ox normally only pays half damages.  The Talmud {source 36} notes the logical inconsistency of this ruling.  To explain this ruling, R. Avahu quotes a verse which he interprets to mean that because Gentiles do not observe the Noahide laws, God has made their money permissible to Jews.   

In what way is this ruling consistent with the rulings we explored above, and how does it help in uncovering a possible reason that lies beneath these rulings that discriminate against Gentiles?

36. Babylonian Talmud, Baba Kama, 38a    |     (.בבלי, בבא קמא (לח

שור של ישראל שנגח שור של (כנעני) [נכרי] פטור ושל (כנעני) [נכרי] שנגח לשור של ישראל, בין תם בין מועד משלם נזק שלם. אמרי: ממה נפשך? אי רעהו דוקא, (דכנעני) [דנכרי] כי נגח דישראל נמי ליפטר! ואי רעהו לאו דוקא, אפילו דישראל כי נגח (דכנעני) [דנכרי] נחייב!
א”ר אבהו, אמר קרא: עמד וימודד ארץ ראה ויתר גוים, ראה שבע מצות שקיבלו עליהם בני נח, כיון שלא קיימו, עמד והתיר ממונן לישראל…
Mishna: “Where an ox belonging to an Israelite has gored an ox belonging to a (Canaanite) [Gentile] there is no liability etc.” This is logically inconsistent! If the implication of ‘his neighbor’ (from the verse “If one man’s ox goes his neighbor’s ox”) has to be insisted upon (and excludes a Gentile), then in the case of an ox of a (Canaanite) [Gentile] goring an ox of an Israelite, there should also be no liability. If [on the other hand] the implication of ‘his neighbor’ need not to be insisted upon, then even if the ox of an Israelite gores the ox of a (Canaanite) [Gentile], he should be liable in damages!

R Avahu thereupon said: The verse says, “He stood and measured the earth; he beheld and drove asunder the nations,” [which can be interpreted as follows:] God beheld the seven commandments which were accepted by the descendants of Noah, but since they did not observe them, He rose up and declared their money to be permissible to Israel….

After seeing the Talmudic passage that allows a Jew to not pay his debts to a Gentile, the exemption of paying for property damages should come as no surprise.  What might not have been expected is the demand that a Gentile pay in full when his ox damages, although this exceeds the normal payment that even a Jew would make.  Extracting this excessive payment might have been considered an act of theft, and thus forbidden.  What bothers the Talmud, however, is not the discriminatory nature of this ruling (at the end of the day, even extracting an excessive payment in court does not have to be seen as theft, especially when that money is going to make restitution for damages; this ruling is also consistent with how in general the Talmud treats legal disputes between a Jew and Gentile that come in front of the court {source ‎33}).  Rather, the Talmud is bothered with the fact that there is no good scriptural basis for this ruling.

The solution to this problem is significant in understanding what might be behind these discriminatory rulings in civil law.  Rabbi Avahu states – based on a verse – that the money of Gentiles is permitted to Jews because the Gentiles do not keep the Noahide laws.  It is possible that this is saying nothing more than God is punishing the Gentiles for their sins and Jews are the beneficiaries.  But it is possible that R. Avahu is attempting to morally justify this ruling.  The Noahide laws are mostly fundamental moral mandates – Mendelsohn understood them to be the Jewish version of Natural Law.  They include prohibitions against murder, theft and sexual sin, and eating a limb torn from an animal (a cruel and rapacious act) as well as the mandate to establish a functioning legal system.  They also prohibit blasphemy and idolatry – fundamental religious mandates.  R. Avahu might be saying – the Gentiles don’t keep the laws of basic morality, and are not participants in a just a moral society.  It is for this reason that “their money is permitted.”

A related passage can be found in Sanhedrin 76b, “Rav Judah said in Rav’s name: One who… returns a lost article to a Gentile, concerning him Scripture says, ‘to add one who is sated to one who is thirsty. The Lord will not spare him’ (Deut. 29:18).”  This passage does not just exempt a Jew from returning a lost object to a Gentile, but forbids it.  This could only be because this sage – Rav – saw the Gentiles as evil or a source of harm to Jews.  The point of this statement seems to be that a Gentile has sufficient wealth – is sated – whereas the Jews are poor, quite likely due to the treatment that they have received from the Gentles and their host countries.  To return a lost object rather than keeping it for oneself is – in this thinking – helping those who are to blame for the impoverished state of the Jews rather than acting to redress the wrong.  

It should be remembered that the Rabbis, particularly those in the Land of Israel where the Mishna was written, were living under Roman rule, and had endured martyrdom as well as acts of violence against their persons and property.  This is helpful in understanding why the Rabbis did not readily embrace a universalistic ethos, and – more specifically in this case – this might serve as a moral justification for not affording Gentiles equal treatment under the law.

It is unclear if R. Avahu means to say that the money of Gentiles is fully permitted – siding with those who allow theft from Gentiles – or if he is saying that because they are not law abiding, they are not afforded equal protection under the law, and hence there is no need to make restitution when their property is damaged, and why full restitution may be demanded from them (see Tosafot, Baba Kamma 38a, s.v. Amad).  The former interpretation is consistent with an understanding that they are being punished because they are sinners, the latter with an understanding that this is the natural consequence of not participating in a moral and just society.  This explanation could also extend to the allowance to not return property or money that belongs to Gentiles.  Direct acts of theft or intentional damage would be forbidden, but there would be no proactive obligations towards people who are seen as operating outside of the law.

The above passage is significant for another reason as well.  The Talmud suggests – although briefly and hypothetically – that the word rei’eyhu, ‘his neighbor,’ might not be intended to be read with a precise, narrow meaning.  That is, the Torah might use the word rei’eyhu (and related words such as achikha and amitekha) and mean nothing more than ‘another person.’  This shows that the Talmud recognizes that many of the Biblical verses which are interpreted to exclude Gentiles could be read in a more inclusive fashion.

 

The end of this passage relates a story about two legal scholars from Rome who studied the Torah and where convinced of its rightness, with the exception of this ruling of the goring ox {source ‎37}.  What does this passage add to the earlier discussion regarding this law?

37. Babylonian Talmud, Baba Kama, 38a    |   (.בבלי, בבא קמא (לח

שור של ישראל שנגח שור של (כנעני) [נכרי] פטור ושל (כנעני) [נכרי] שנגח לשור של ישראל, בין תם בין מועד משלם נזק שלם. אמרי: ממה נפשך? אי רעהו דוקא, (דכנעני) [דנכרי] כי נגח דישראל נמי ליפטר! ואי רעהו לאו דוקא, אפילו דישראל כי נגח (דכנעני) [דנכרי] נחייב!
א”ר אבהו, אמר קרא: עמד וימודד ארץ ראה ויתר גוים, ראה שבע מצות שקיבלו עליהם בני נח, כיון שלא קיימו, עמד והתיר ממונן לישראל…
Mishna: “Where an ox belonging to an Israelite has gored an ox belonging to a (Canaanite) [Gentile] there is no liability etc.” This is logically inconsistent! If the implication of ‘his neighbor’ (from the verse “If one man’s ox goes his neighbor’s ox”) has to be insisted upon (and excludes a Gentile), then in the case of an ox of a (Canaanite) [Gentile] goring an ox of an Israelite, there should also be no liability. If [on the other hand] the implication of ‘his neighbor’ need not to be insisted upon, then even if the ox of an Israelite gores the ox of a (Canaanite) [Gentile], he should be liable in damages!

R Avahu thereupon said: The verse says, “He stood and measured the earth; he beheld and drove asunder the nations,” [which can be interpreted as follows:] God beheld the seven commandments which were accepted by the descendants of Noah, but since they did not observe them, He rose up and declared their money to be permissible to Israel….

 

This passage allows us to see what this ruling of the goring ox looks like from the outside.  From the perspective of a Gentile, even a Gentile legal scholar who was persuaded about the rightness of the Torah, the law of the goring ox is seen as fundamentally unjust.  While the Gemara allows us to see it from this perspective, it also blunts the power of this passage by inserting a gloss into it.  The original passage – the part that is in Hebrew – just read “… it is all true except for this point: if the ox of an Israelite gores the ox of a Gentile no payment need be made, while the ox of a Gentile which goes the ox of an Israelite has to be paid in full. We will not, however, report this to the Government.”  Their problem with this law is obvious: it is unjust.  The Gemara, however, inserts the Aramaic passage which ‘clarifies’ their problem.  According to this insertion, their problem is not with the unjustness of the law, but with its logical inconsistency and the fact that it cannot be properly derived from the Biblical verse.  In the end, this passage with its gloss, combined with R. Avahu’s earlier statement, made it possible for a reader to not be overly troubled by these rulings.

Conclusion – Section B

In summation, we have seen that according to Talmudic law, theft from a Gentile is prohibited, while not returning an object or money that is rightfully his, or not compensating him for damages, is permitted.  It seems that it is also forbidden to intentionally mislead, cheat, or overcharge, although this is not spelled out explicitly.

The Talmud at times derives these distinctions from the words rei’echa or amitcha, although it acknowledges in one place that these terms need not be read in this exclusionary way.  However, there are times when the verses do not support, or are not marshalled to support, this distinction. In one passage, R. Avahu justifies at least one of the rulings on the basis of the Gentiles’ violation of the Noahide laws.  It remains an open question whether this justification works on an ethical level as well.

We will see below in Part II how this explanation may play into a reassessment of these laws at a later time in history.