Geneivat Daat - Misleading, Misrepresentation and Deception
Bein Adam Le-chavero: Ethics of Interpersonal Conduct
By Rav Binyamin Zimmerman
Shiur #27: Geneivat Daat Misleading,
Misrepresentation and Deception
In the last two lessons, we have seen the
extent to which the chapter which begins Kedoshim tihyu (Vayikra
19) directs each Jew towards a life of holiness, attempting to uproot any trace
of deception from the Jewish people.
The Sages expound this text to teach us how one must shun being echad be-feh
ve-echad be-lev (hypocritical) and instead must embrace the ideal of tokho
ke-varo," sincerely expressing ones inward thoughts via ones outward
actions. The greatest expression of
the extent of the prohibition of deceptive practices might very well be the
proscription against geneivat daat, literally stealing of the mind,
which includes various forms of misrepresenting oneself and misleading others. This prohibition guides one towards a
life of honesty and sincerity.
In order to understand the prohibition, the
first question that must be asked regarding geneivat daat is the
following: what is its source? This will
help us understand the nature of the prohibition, by helping us determine what
its focus is and what should be included in it.
The Talmud (Chullin 94a) records the prohibition, and it includes
a number of forbidden actions that are a little startling.
Shmuel said, It is forbidden to deceive
people, even a non-Jew.
The prohibition is not explicit in the Torah; the
verse never states that one cannot deceive others. However, when discussing the
prohibition of geneiva, stealing, we have already pointed out that the
Torah mentions the prohibition in the plural tense, Lo tignovu.
Though we usually associate stealing with
money or objects, in fact one can steal many things. Even regarding various forms of
deception, one can deceive in order to attain money or to attain other things.
This prohibition applies not only to monetary
matters, fraud and deceptive business practices; it includes various cases of
verbal misrepresentation and giving misimpressions.
The Tosefta (Bava Kamma 7:8) mentions
based on the verse that of all the forms of geneiva, The first of among
them all is geneivat daat.
In fact the Torah mentions the root ganav
in the context of fooling another, speaking of geneivat lev literally,
stealing the heart (Bereishit 31:20, 26).
If so, it is logical that the prohibition
of geneiva, written in the plural, refers to geneivat daat as
well.
In fact, the Ritva (Chullin 94a) and
the Semag (154) both explain that geneivat daat is biblically prohibited
on account of the negative commandment Lo tignovu.
The Ritva adds that the general
language, Lo tignovu, is meant to include all forms of geneiva,
as the Torah does not limit this prohibition to money; it prohibits all forms of
stealing, including stealing the hearts and minds of others.
As we have noted (in lesson #26), the Minchat
Chinnukh (Mitzva 224) explains the reason that the prohibition of geneiva
is so expansive forbidding geneiva even for the benefit of the one
stolen from and even including stealing back ones own purloined goods is
because an act of geneiva is rooted in a terribly cruel character trait. All geneiva is in fact rooted
in deception. It is not only the
object taken which is at issue; the deceitful manner of taking it is something
which is completely unacceptable.
Using the methodology of non-genuine tactics for acquiring anything is
deplorable even if one is recovering his own property or providing charity for
others. A Jew must be sincere and
honest in the way he deals with others.
Based on this explanation, one might entertain
the idea that the most quintessential form of geneiva is in fact not
stealing money, but rather geneivat daat.
Especially in cases in which one does not receive anything, it is the act
of deceit which the Torah forbids under almost all circumstances.
This source would indicate that geneivat
daat is presupposed in the prohibition of geneiva. Others cite alternative sources
for the prohibition.
The Seforno (Vayikra 25:17) writes that
geneivat daat is included in the prohibition against onaat devarim,
causing others distress with ones words.
In fact, the Mechabber codifies the laws of geneivat daat
in Choshen Mishpat ch. 228, the same chapter which deals with the laws of
onaat devarim.
The Semak (262), on the other hand, is of the
opinion that the prohibition of geneivat daat is only a rabbinic ban. However, his language seems to
indicate that it is in fact subsumed under geneiva, possibly because it
expresses the same character flaw but the prohibition itself is only rabbinic
in nature.
The Shulchan Arukh Ha-Rav explains that the
nature of the prohibition depends on the context in which it is violated. If it is violated in the context of
monetary matters, than it is actual geneiva, but in other contexts, it is
only rabbinically forbidden.
However, even according to those authorities
which see acts of geneivat daat as rabbinical prohibitions, it is clear
from their words that the Sages are merely extending the biblical laws of
geneiva and onaat devarim to cases which the Torah implicitly
disapproves of; it may not specifically forbid these acts, but it has already
expressed its vision of the proper dealings with others, which must be devoid of
any harming words or deceitful practices.
In fact, Rabbeinu Yona (Shaarei Teshuva 3:184) seems to indicate
that geneivat daat is included in the prohibition of sheker,
falsehood. Dishonesty comes in all
shapes and sizes. Sometimes it comes
through outright lies, and at other points it is an outgrowth of dishonest
practices; as we will soon see, these includes a number of surprising
applications of minimal untruth which nonetheless fall into the category of
deception.
As we look into some of the cases included in
this prohibition, we may note that the source of the prohibition may affect the
understanding of its nature and scope.
Cases of Geneivat Daat
The Talmud mentions a host of examples of acts
prohibited in the context of geneivat daat. Some cases involve monetary
deception, while others involve regular interactions in which one might come to
mislead another. The examples of the
Talmud go very far in delineating the extent to which the Torah tries to
distance us from dishonesty. In
order to better understand this, let us take a look at a number of the cases
discussed in the Talmud.
Rabbi Meir used to say: A person should not
urge his fellow to dine with him when he knows that his fellow will not dine
with him, nor should he make numerous offerings of gifts when he knows that he
will not accept gifts.
The Talmuds principle seems to be that any
misrepresentation is forbidden, including offering invitations to one who will
clearly not accept them. The Torah
guides us towards being honest and straightforward. One may not misrepresent ones true
motives any more than one may sell products under false pretenses. The Rambam (Hilkhot Deot 2:6)
mentions the prohibition of geneivat daat in the social context,
alongside the requirement to avoid being echad be-feh ve-echad be-lev and
a host of other directives from our Sages to be sincere rather than two-faced.
A person is forbidden to act in a smooth-tongued and luring manner. He
should not speak one thing outwardly and think otherwise in his heart. Rather,
his inner self should be like the self which he shows to the world. What he
feels in his heart should be the same as the words on his lips.
It is forbidden to deceive people, even a non-Jew
It is forbidden to utter a single word of deception or fraud. Rather,
one should have truthful speech, an upright spirit and a pure heart, free from
all evil and mischief.
Judaism teaches one not to be an actor or actress in
a manipulative or insincere manner.
This type of being smooth is not viewed as a positive character trait. Geneivat daat is not only a
forbidden act, but a prohibited way of life.
Even Gifts
The aforementioned passage in Chullin
(93b-94a) records the prohibition of geneivat daat in the context of a
mishna detailing a gift given to a non-Jew.
The commentators discuss whether one can conclude from the Talmuds
discussion that geneivat daat is forbidden in the context of gift-giving,
even though a certain level of deception will only make the recipient feel
better about his gift. The Mechabber
(CM 249:2) rules that geneivat daat applies even when giving a
gift (see Emet Keneh 8:4 by Rav
Yitzchak Isaac Silver for a complete discussion).
Again, this law seems to highlight the unique
nature of the prohibition. Even when
giving a gift, one does not have a license to mislead another as o the true
value of the gift; rather, one must express his love and care for another in a
manner devoid of any trace of deception.
This is especially significant, as many people
have an urge to try to make gifts they give seem much more expensive then they
in fact are. Applying the
prohibition of geneivat daat to gifts would require that people eliminate
all deception as to the value of their gift-giving, though, as we will see, this
in no way requires that one must attach the price tag to the gift.
Why Not?
The Rishonim seem to disagree somewhat on the
reason for some of the aforementioned prohibited actions. Why can one not invite his friend
knowing that the other will not accept?
Throughout his commentary of the Talmud (e.g.
Chullin 94a), Rashi focuses on the fact that by misleading the other
individual, one will feel a debt of gratitude, for no reason. It is clear that even if the
recipient never acts upon that debt of gratitude, the act itself is forbidden
for causing ones friend to feel indebted.
The Meiri (ad loc.) on the other hand,
does not mention that the recipient will feel unduly grateful; rather, he
focuses on the fact that by acting in this way one gives the other a
misimpression about his true intentions, leading the recipient think that the
giver intends to honor him when this is not the case.
One might venture to say that Rashi and the
Meiri disagree on the exact nature of these examples of prohibitions. According to Rashi, the focus of the
prohibition is the undeserved debt of gratitude, which one has achieved unduly
and, therefore, essentially stolen.
The Meiri, though, seems to understand that it is the misrepresentation alone
which is forbidden, even if no debt of gratitude is incurred, for the focus is
not on an actual act of stealing, but rather the dishonesty involved, the
stealing of the mind. When all is
said and done though, it is not only that the recipient feels unduly indebted
towards the giver, but that the giver attains this through deceiving the
recipient.
Permitted Circumstances
The Talmud goes on to explain that some cases
of geneivat daat can be permitted under certain circumstances.
Nor should he open for him barrels that have
been sold to a shopkeeper unless he notifies him that they have been sold.
Nor should he say to another, Anoint
yourself with oil, when he is actually offering an empty flask; however, if he
does so for his honor it is permitted.
It is interesting to note that there seems to
be a distinction between the various permitted instances mentioned here. The first permitted method is by
informing all of the facts, which is clearly acceptable because there is no
deception and no misleading is involved.
The second case, however, is highly difficult. The Talmud would seem to
say that even though you are in fact deceiving the individual, since he is
benefiting from it by being honored, it is permitted. This opens up a very important
question: how do we understand why this is permitted? Regarding geneiva, we have
seen that it is forbidden to steal for the benefit of the individual being
robbed why would geneivat daat be different?
If we understand that geneivat daat is a form of geneiva,
then we must explain why its halakhot differ. Based on the explanations of Rashi
and the Meiri, we may explain this.
According to Rashi, the concern of geneivat daat is that the other
individual will feel unnecessarily indebted.
However, in this case, the merchant has honored the potential customer,
and therefore, the customer does owe the merchant a debt of gratitude, even if
the customer thinks it is for the oil the merchant has offered him, not for
showing his importance to the crowd.
According to the Meiri, this act would be permitted because geneivat daat
is forbidden in any context wherein someone might wrongly think that another
person is treating him with high regard.
In this case, as we have noted, the merchant is in fact honoring the
potential customer, albeit in a different way.
He Would Have Done It Anyway
The continuation of the passage provides other permissible cases. The Talmud says that it is permitted
to open a new barrel of wine for a guest without informing him that the rest of
the contents of the barrel are about to be sold through a merchant, in a case
where one would have opened the barrel for the guest even if he would have to
absorb the loss of the rest of the barrel.
The conclusion seems to be that if an action would have been done anyway,
one can do it on behalf of another, even though the other does not realize that
one in fact is not losing by benefitting him.
Tosafot, however, limit the extent of this permitted practice based upon
an important passage in the continuation of the discussion.
He Misleads
Himself
Geneivat daat
forbids purposeful misrepresentation, but what if
one is silent and the other individual misleads himself is one obligated to
inform him? This issue is mentioned
in the continuation of the passage in the Talmud, but the proper understanding
is dependent upon a dispute among the Rishonim.
The Talmud states that one is permitted to remain silent when they
mislead themselves, and it brings a story of Rava and Rav Safra to illustrate
this issue (94b):
Mar Zutra son of Rav Nachman was going from
Sikara to Bei Machuza, and Rava and Rav Safra were coming to Sikara. They met each other on the road. Mar Zutra thought that they were
coming to greet him (to show him honor).
He said to them: Why was it necessary for the
rabbis to trouble themselves and come so far?
Rav Safra said to him, We did know that the
master was coming, but had we known we would have troubled ourselves even more.
Rava said to Rav Safra: What was the reason
you told him and disheartened him?
Rav Safra said to Rava But we would be
misleading him (otherwise)!
Rava replied, It is he who misleads himself;
we are not required to correct him.
Rava and Rav Safra seem to debate whether one is
obligated to tell the whole truth when he realizes that his actions may lead to
someone elses misunderstanding, who may feel a sense of gratitude for an act
which was supposedly done on his behalf.
Rav Safra, to whom the Talmud (Makkot 24a, in another context)
attributes the verse He speaks truthfulness in his heart (Tehillim
15:2), could not allow Mar Zutra to be misled, even if that was not his
intention. He opts to tell the
truth, even though Mar Zutra might possibly be disheartened by his remark. Rava, however, feels that in a
situation where one does not perform any act of deception and the misimpression
develops in the other individuals mind, one need not disclose all the facts. The Talmud ends with Rava having the
last word, which would seem to indicate that whenever there is no intention of
deception, it is permitted to play along," as it were, with the other
individuals self-deception.
Tosafot (s.v. Ve-ha), however, limit
the extent of allowing one to be silent in the wake of anothers misleading
himself based on an earlier passage which seems to forbid a similar case. The
Talmud (ibid. 94a) tells the story of Ullas visit to Rav Yehuda. Rav Yehuda opened a new large barrel
of wine in Ullas honor, but he had been intending to do so anyway. Was Rav Yehuda obligated to inform
Ulla of his original plans, so that Ulla would not get the misimpression that
Rav Yehuda was opening the new barrel for him?
Tosafot differentiates between different
cases: one need not mention his original plan if the alternative option was
considered as well; however, if one only had one singular intention at the time,
even if one might have done so in any case, he must inform the other of his lack
of intention to benefit him, even though he would have done so anyway.
The specific applications are extensive (see
Emet Keneh, 8:18-20, 38) but the
bottom line is clear. The Torah goes
out of its way to distance one from deception, but at the same time, it concerns
itself with the feelings of others, and therefore, when no deception is
involved, one can remain silent when one truly wishes to benefit others.
However, one must be honest with about his
true intentions and realize the limitations of these principles. One can remain silent only if he
honestly would help another who had misled himself, but he can in no part play
in to their being misled. For
instance, regarding the gift one has given to another, after having found it on
sale at a rock-bottom price, one need not inform the recipient who thinks that
it is worth a mint of its true value.
However, if the individual asks How much was it? one cannot, in any
way, provide an ambiguous answer which would seem to indicate that the object
cost more than it really did. Again,
deception has no place in the life of a Jew: silence is permitted when
preventing deception, but it is forbidden in cases where it may add to the
mistruth.
Inadvertently Giving a Wrong Impression
The extent to which one must be forthcoming in
order to prevent misimpressions, even if one is not responsible for them, may be
clearly seen in cases in which one is honored undeservedly. It is here that even anothers
misleading himself requires one to stand up and declare that one is unworthy of
the honor bestowed upon him.
The source for this law is a mishna (Sheviit
10:8) that lays out the following rule: if one is an inadvertent killer (who may
take refuge in a Levite city) but is thought to be a distinguished Levite, he
must announce his true identity, for the Torah says This is the word of the
killer (Devarim 19:4). Only if
the townspeople know his true identity can he accept the honor.
The Yerushalmi (ibid. 10:3) applies the
same ruling to anyone who is honored under the presumption that he is a greater
scholar than he actually is. The
clear ruling is that in matters of honor, one cannot accept praise for
attributes in which one is lacking.
If so, then ones silence in the wake of others misimpressions would in fact be
tantamount to geneivat daat, deceitful misrepresentation. The specifics of these laws are very
complex, as under certain conditions, accepted custom allows for exaggeration
that is not meant to be taken literally.
(See Emet Keneh, ch. 8.)
Concluding Lessons
There are numerous practical halakhic
applications for these laws which fall beyond the purview of this series, but it
is worthwhile to mention the words of Rav Moshe Feinstein regarding the possible
issues of theft for one who cheats on an examination. Rav Moshe rules that it is
undoubtedly geneivat daat for a student to misrepresent his knowledge and
deceive his teacher, but it is also outright geneiva in that any position
in life that one achieves afterwards based on this deception in fact involves
stealing from the individual who should have done better
(not to mention the problems of dishonesty and possible desecration of name of
God, if done in Jewish institutions).
Though the specifics of geneivat daat
are beyond the purview of our series, dealing with these questions is of extreme
importance. Whether one arrives at
the conclusion that a given act is forbidden or permitted, either through
extensive study or through speaking to someone well-versed in these laws, it
will become clear that the Torahs guidelines go far in ensuring that one does
not live a life of deception.
Business practices and personal practices, even consumer-protection laws that
are never consciously thought of, are part and parcel of the Torahs educational
system of honesty and sincerity.
Certainly, in the field of advertising, dressing up merchandise and concealing
defects are both forbidden, but as we have seen, the applications go much
further.
In truth, possibly the most important thing to
remember is that even though the Torah goes out of its way to ensure that
individuals do not deceive each other, as seen in previous lessons, the only one
who is truly deceived is the deceiver himself.
Rather than fool others, he fools himself into a life of dishonesty,
where he is unable to maintain faithfulness even with himself. It is for this reason that the Rambam
explains (Hilkhot Deot 2:6) the ideal character of the Jew in the
following way:
Rather, one should have truthful speech, an upright spirit and a pure
heart, free from all evil and mischief.
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