THE PROHIBITION OF GENEIVAT DA'AT
Bereishit 31:20 tells us that "Yaakov stole the heart of Lavan the Aramean, by not telling him that he (Yaakov) was running away." This verse raises an interesting question: what exactly does it mean to steal another person's heart? From this verse it seems that the issue at hand is that Yaakov acted in a backhanded manner with regard to his father-in-law, and for that he is criticized (at least to some degree). This week's chabura will focus on this notion of "stealing the heart" of another - geneivat da'at.
The gemara in Chullin 94a discusses whether or not one may sell meat to a non-Jewish butcher for him to then sell on the market. The main focus of the discussion revolves around the sciatic nerve (gid ha-nasheh). As Jews are forbidden to eat this nerve, Jewish butchers are considered to be trustworthy to remove it before sale. However, non-Jewish butchers are generally not sensitive to this issue, and thus are trustworthy only in a situation where the market is set up in such a way as to make them sensitive to this issue (i.e. announcing publicly when a piece of meat containing this nerve has entered the marketplace). However, if no announcement is made in a given place, then a Jew may not sell a piece of meat containing the nerve to a non-Jew for two reasons. The first reason is that we are worried that another Jew will witness the transaction and assume that this piece of meat is permissible to eat. The second reason is that such an act would constitute geneivat da'at - literally stealing the knowledge of the non-Jew.
What does this term "geneivat da'at" mean?Rashi ad loc. comments that the non-Jew may assume that the nerve has been removed, and thus may believe that the Jew was actually doing him a favor. As such, he will come to look favorably upon the Jew without any truthful basis for doing so. This same reasoning applies to the other cases brought down in the gemara - pressuring a person to come for a meal when one knows that they cannot come; offering a person abundant gifts when one knows that they will not accept them; opening a barrel of wine that one has to open anyway so as to give a person a glass, thus making that person believe that the cask is being opened exclusively for them. In all of these cases, the protagonist attempts to win favor by appearing to be generous when he knows that he will not actually have to act on his apparent generosity. All of these actions constitute a violation of "geneivat da'at."
There are several major question regarding this law. First of all, with regard to whom can one violate this prohibition? The cases in the gemara involve both Jews and non-Jews - is this always the case? Second, what kind of law is this? Does it deal only with business deals, or gifts involved as well, or does it perhaps expand even further to include any form of such trickery? Finally, are there any situations when one would not be considered to be in violation of geneivat da'at?
With regard to the question of Jews and non-Jews, it is generally accepted that we take the gemara at its word and one is in violation of this prohibition regardless of who the object of the deceit is. The second question presents a slightly thornier problem. TheYere'im (# 154) includes this prohibition under the category of "thou shalt not steal" (Leviticus 19:11), specifically with regard to the prohibition of stealing money. He claims that this is even stricter than the prohibition of kidnapping, as that does not specifically apply to kidnapping non-Jews, whereas this does forbid the cheating of non-Jews. The Semak (lo ta'aseh 262) lists this on the "sixth day," which includes laws that involves monetary issues. Rambam places this law into two categories - it is included in both his Hilchot De'ot and his Hilchot Mechira. The former deals with how to live one's life, and is more of a moral code, whereas the latter deals with laws specifically relating to business deals. Thus, whereas our gemara seems limited to transactions, the Rambam opens up a door to expand this concept even further. We will pursue this notion later on in the Chabura.
The first major argument about geneivat da'at revolves around its scope within the realm of transactions. Are only business deals included, such as selling a piece of meat to a non-Jew, or can one violate this injunction by way of giving a present as well?Rosh and Rashba both contend that one does not violate geneivat da'at if he offers a gift knowing that he will not have to give it, although Rashba does limit this to a case when one is offering the gift to a non-Jew. Seemingly, it would be forbidden to do so to a Jew. Ritva says that in all cases, whether the "intended" recipient is a Jew or a non-Jew, the prohibition applies.
There are cases when geneivat da'at would not apply. The gemara discusses a case where Mar Zutra came to Bei Mechuza and met two other individuals on the way. He thought that they had come to greet him and asked, in a backhanded manner, "Why did you trouble yourselves so much to come and greet me?" They replied that had they known that he was coming, they would have worked harder to give him a proper reception. Why was this not deemed to be a case of geneivat da'at? The answer given is that since he had already misled himself, by assuming that those that he meant were coming for him, there was nothing wrong, per se, with answering him as per his own folly. The other main exception case is on the opposite extreme. With regard to the aforementioned case of opening wine casks for an individual, there is no wrongful act committed if one performed this act out of respect for the person. This idea is first brought down by Tosafot, who recognize that there are some situations where one must make a gesture of generosity, even with the knowledge that it will not be accepted. This view does make sense - if the main problem is that one will falsely endear himself to others, then this is a case where one really does want to be able to act in kind towards another, yet he knows that his offers will be refused. Even so, he reveals his true thoughts through his offer.
Practically, Rambam, theTur, and the Shulchan Aruch all say that it is forbidden to cheat others or to "steal their knowledge," both in business and in general. Both Rambam and the Tur omit the leniency of Tosafot, that one may do so if it is done out of respect. According to the Beit Yoseif, this omission is due to the fact that they see the law as obvious, perhaps as per our suggested logic for Tosafot. According to the Lechem Mishna, they omit this law because they are not of the same opinion of Tosafot in this regard. However, this answer of the Lechem Mishna is a bit difficult, at least with regard to the Tur, as the Tur does mention the leniency brought down by Tosafot.
How far does this law go? Are there cases beyond the mere transference of an object that entail an infraction of this law? We will turn now to several responsa written over the past few centuries that have found geneivat da'at appearing in various contexts.
Shut Binyamin Ze'ev (#130) discusses the mitzva of pidyon shevuyim - redeeming captives. After explaining how great and important this mitzva is, he proceeds to discuss a case cited in the gemara where Hurmiz, a non-Jewish matron, gave Rav Yoseif a certain sum of money to be used for a "mitzva rabba" - a great commandment. As such, he used the money to redeem captives, as it would be forbidden for him to use it for anything else due to geneivat da'at. However, when Rava gave him money stipulating that the money be used for charity, Rav Yoseif distributed the money to needy people, both Jewish and non-Jewish, his reasoning being that Rava was aware of the fact that Jews at that time generally supported the local non-Jewish poor as well, as a gesture of goodwill and peace towards the foreign rulers in whose countries they lived. We see here a very literal application of the term geneivat da'at - one may estimate what exactly the other person knows and assumes and act based on that. Hurmiz likely had little knowledge of the workings of Jewish society, and thus Rav Yoseif had to take her at her word. Rava, on the other hand, was well acquainted with such things, and thus Rav Yoseif was at liberty to assume certain things beyond what Rava had explicitly told him.
Shut Yoseif Ometz (#57) discusses a case where a synagogue puts various honors up for bid. The question asked was may a person make a deal with the auctioneer to bid against people who seem driven to purchase a particular honor, thus driving up the price beyond the level that it would otherwise reach? In this particular case, this "confederate" had arranged that if his last bid was not bested by his opponent, he would only have to pay a fraction of what he had actually bought the honor for. Is this act permissible, specifically as the entire congregation stood to benefit from the funds raised by the auction? He answers that there is geneivat da'at here on two counts. The first is that this individual appears as if he is interested in purchasing the opportunity to perform a mitzva, when he has no such interest. He thus appears to the congregation to be something which he is not. Second, Yoseif Ometz replies that as this person has made a deal with the auctioneer, yet only pays a fraction of the amount if he ultimately prevails, there is again a violation of <i>geneivat da'at</i>, as the people assume that he is paying a sum that he never pays.
Rav Moshe Feinstein (Igrot Moshe, Choshen Mishpat 2, #29,30) deals with two issues concerning schools. The first is with regard to state and federal funding received by schools based on things such as enrollment. The second revolves around the famed New York City Regents exam scandals, when it came to light that the thieves of copies of these state-administered tests may have been individuals in various Yeshivot. He answers both questions by saying that in addition to any actual violation of stealing that exist in such cases, there is an issue of geneivat da'at as well, as the act of robbery had a specific act of deception as part of the process - either proving that a school had more students than it actually did, or falsely improving the grades of various students. (Rav Feinstein, it should be noted, disclaims the possibility that Yeshiva students or Rebbeim actually participated in the Regents scandal)
Finally, there is a responsa from Rav Eliezer Waldenberg (Tzitz Eliezer, vol. 15, #12). He was asked whether or not one may falsify, or at least "enhance" details in articles to be printed in medical journals so as to make the articles more compelling, and to thus improve one's chances of receiving a job in a field where such decisions do take one's publications into account. Rav Waldenberg wastes no time in claiming that this clearly constitutes an act of geneivat da'at, and thus is expressly forbidden by halacha.
In summation, it should be noted that when something falls under the category of geneivat da'at is not always clear. As this is largely a moral issue, there is a lot of gray area. In terms of judging a given case for oneself, one should keep in mind the words of Tosefta Bava Kama 7:3, "There are seven types of thieves, and the first among them is one who steals the minds of others," as well as the words of Rabbeinu Yonah of Gerondi, in his Sha'arei Teshuva, where he reminds us that "Lying lips are extremely guilt-ridden...We have been commanded to circumscribe ourselves to the truth, because it is one of the foundations of the soul."
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