Chancellor's Parashah Commentary
Parashat Be-har-Be-hukkotai 5758
Leviticus 25:1 - 27:34
May 23, 1998 27 Iyar 5758
Ismar Schorsch is the chancellor of The Jewish Theological Seminary.
When in Israel last, I needed to buy a pair of tefillin as a bar–mitzva gift. Deep inside Mea Shearim, my son and I finally found the shop that had been recommended to us, a hole in the wall on the main street, that specialized in tefillin. The space was musty and untidy and cluttered with religious books and artifacts. Behind the counter presided an elderly and diminutive couple, whose vigor belied their years. They bounded from one end of the counter to the other to serve an unending flow of customers.
Eventually I caught the attention of the husband and he offered me a pair of tefillin at $1200. In this speciality shop, you choose the thick coal–black leather straps, a scribe on the premises fills out the parchment for the boxes while you wait and the owner assembles the tefillin to suit your size. We haggled for a while and then settled on a price of $200, when he came to realize that the tefillin were intended for a bar–mitzva boy. I could not have been more pleased because the tefillin were of exceptional quality.
While my son and I waited for the scribe, a riveting scene unfolded to help us pass the time. A young American man, accompanied by an attractive Israeli companion and her mother, came in to purchase a pair of tefillin. It soon became evident that donning tefillin was not his strong suit. He seemed to be on a journey back to Judaism and did not wish to return to the States without acquiring a pair of his own. The women turned out to be relatives, quite secular but very supportive. They also conducted much of the negotiations since he spoke no Hebrew.
The point of the story is that he ended up paying $650 for his tefillin! The owner quickly spotted him for what he was and insisted that he carried no cheaper tefillin. To pay for them, the young man had to supplement his cash with a personal check, suggesting that he had expected to pay far less. When we left, he had moved on to buying a full size tallit, eager to be fully equipped for his new life.
As evidence of Jewish renewal, the episode was heartwarming and symptomatic of larger trends in America. But that is not why I recount it. It is also a striking instance of a prohibition against deceit in business set forth in this week's parasha. The backdrop to the law is the jubilee year when all parcels of land are to revert to their original owners at the time of the conquest of the land. Hence the value of land for purposes of sale must always be determined in relation to the number of years left in the 50–year cycle. In this context the Torah admonishes the seller to ask for no more than a fair price. I quote the passage in full:
In this year of jubilee, each of you shall return to his holding. When you sell property to your neighbor, or buy any from your neighbor, you shall not wrong one another. In buying from your neighbor, you shall deduct only for the number of years since the jubilee; and in selling to you, he shall charge you only for the remaining crop years: the more such years, the higher the price you pay; the fewer such years, the lower the price; for what he is selling you is a number of harvests. Do not wrong one another, but fear your God; for I the Lord am your God (Leviticus 25:13–17).
On the basis of this passage, the Mishna defined a fair price as one that did not exceed or fall short of the market price by more than one–sixth of the value of the commodity. Both buyer and seller are bound by the obligation not to exploit the ignorance or naiveté of the other. And each, according to the Mishna, has a brief period of time after the sale to reverse it ("until the buyer can show it to an expert or a relative").
At the same time, for a reason I don't fully fathom, the Mishna restricts the scope of this prohibition against wronging a buyer (ona'ah) to movable property or consumer goods. Land or promissory notes are not covered. What is clear, however, is that an anti–capitalist ethos informs the legislation. The principle of "buyer beware" does not release the seller from all moral constraint. The hasidic merchant put one over on his gullible religious novice from abroad. Whatever the fair price might have been for the pair in question, there were surely tefillin in his store for less than $650. Should I have spoken up?
In studying the passage from Leviticus, the rabbis went beyond the marketplace. The phrase "do not wrong one another" appears twice (vs.14,17). In accord with their underlying philosophy that there is no idle repetition in the Torah, they applied the second occurrence of the phrase to another form of exploitation, namely verbal abuse (ona'at devarim). We are not to discomfort or mislead someone in our presence. Again, the Mishna stipulates that we shouldn't ask the price of an item if we have no intention of buying it. Or we should not remind a convert of the errant ways of his parents. Indeed, the Talmud claims that verbal "harassment" is more grievous than fraud because it is only in the case of the former that the Torah adds by way of reinforcement the admonition: "but fear your God (25:17)." Moreover, verbal abuse is an assault on one's person rather than one's money, for which restitution is hard to come by.
Yet disturbingly the Talmud sees fit to apply both forms of wrongdoing (ona'ah) only to relations between Jews, taking the word "neighbor" (amitekha in v. 14) to mean fellow–Jew. Put bluntly, it is permissible to deceive or harass a non–Jew; Judaism seems to countenance a double standard of morality. The distinction is still preserved by the Shulhan Arukh in the 16th century ("The [sin] of ona'ah does not apply to gentiles") and thus remains normative for those who refuse ever to depart from its authoritative voice.
How sad to see a glorious instance of expansive sensitivity compromised by a moral lapse. Over the years, antisemites had a field day recycling this law to indict Judaism as ethically inferior to Christianity.
What interests me for the moment is not the historical reason for the slip. Beleaguered minorities are slow to muster much understanding or compassion for the Other. But rather, is the restriction still binding in the world of contemporary Orthodoxy? Meir Tamari, an Israeli author of a fine recent study of Jewish ethics and economic life, tried to defend it weakly.
All the commandments forbidding theft or robbery are understood to include non–Jews as well, whereas ona'ah applied only to Jews. Thus it cannot be understood as fraud or theft, but rather as an extra duty devolving on the Jew to refrain from taking advantage of a position of, say, superior information. This duty could be implemented only in a reciprocal relationship; therefore, it had to be limited to Jews only (With All Your Possessions, p. 96).
I much prefer the eloquent and unequivocal rejection of this position by Baruch Halevi Epstein at the beginning of our century. A paragon of Eastern European Orthodoxy at its best, he took up the subject several times in his incisive commentary on rabbinic passages on the text of the Torah, the Torah Temima. Epstein is acutely aware of the mischief done by antisemites with our passage and is determined to dispose of it. He does so by distinguishing between the gentiles of antiquity and those of his own day. The decadence of the former was notorious. They did not live by any of the seven Noachide laws, which Judaism required of all nations to be deemed civilized. In contrast, the gentiles of modernity, argues Epstein, have attained a high level of justice, morality and monotheism, and thus are to be included in the definition of the biblical term "neighbor." Progress had rendered a biblical injunction time–bound while Jewish law harbored the capacity to grow.
Shabbat shalom u–mevorach,