Fair Dealing In Business

 

In the beginning of this chapter, Rav Ganzfried expands on the importance of charging customers a fair price and providing them with a fair product.  He explains that in dealing with our fellow Jew it is forbidden to overcharge or underpay, and one may likewise not give a lighter weight of merchandise or accept overweight.

 

As citizens of advanced countries we feel a sense of satisfaction at the extensive consumer protection our governments provide us, and as Jews we are likely to feel a sense of pride that the approach of the halakha is so much more advanced than the "buyer beware" rule, which was characteristic of old-time common law. 

 

However, the differences between the rules are as great as the similarities.  In fact, through these laws we can discern a fundamental difference in the approach to the appropriate role of commerce in human life.

 

ENDS AND MEANS IN COMMERCIAL INTERCOURSE

 

What role does commerce play in society?  Our initial instinct is that the social engagement in commerce serves as merely a means to the MATERIAL end of acquiring certain goods.  When I am hungry I can't just reach out the window and pluck an apple from the tree; I have to go to the fruit stand and reach an agreement with the vendor.  And in order to earn the money to give the vendor, I in turn must reach an agreement with my own employer or customer.

 

However, we could explain the interdependence of material and social needs in exactly the opposite fashion. Our material needs may have been planted in us by Hashem in order to actually stimulate the social intercourse required to fulfill them!

 

If we lived in monastic privation, we would be able to maintain monastic ISOLATION.  But in order to enjoy reasonable material comforts, we have to go out to the marketplace and negotiate with others; ultimately, we confront others and reach agreements, which are in our mutual benefit.  This is one way of breaking down the barriers between human beings and creating harmony among them.

 

Indeed, a high degree of mutual understanding is necessary to create a valid commercial transaction, both in secular law and - especially - in Jewish law.  This is because our possessions - if rightfully obtained - become, to some extent, an extension of our selves (See Chullin 91a).  So an ordinary commercial exchange really requires a "meeting of the minds" - a genuine encounter and give-and-take among human beings.

 

According to this approach, the prohibition of unfair dealing is meant not only to AVOID something NEGATIVE - to prevent misleading practices which are tantamount to stealing - but to CREATE something POSITIVE - a genuine connection and communication between the sides.  When the price is unfair, then the agreement, the meeting of the minds, is not fully complete.  Both sides have agreed to pay the specified price for the specified object, but without fully informed consent this transaction falls short of the Torah ideal.  (Based on Likutei Halakhot Breslav on laws of Onaah.)

 

This can help explain the surprising term the Torah uses to describe overcharging.  The word "onaah" usually means "oppression" or "anguishing," as we will learn in the following chapter (63).  If I seek a fair deal with a merchant and he takes advantage of me, I feel cheated.  But if I seek a meaningful relationship with a friend and he takes advantage of me, I feel anguished.

 

This can also help explain the fact that this particular halakha applies only to Jews.  In chapter 63:4, we learn that intentional misleading is strictly forbidden even in dealings with non-Jews.  We certainly want to maintain a basis of fair and ethical dealing with all people.  However, the ADDITIONAL dimension, of strengthening human connections through commercial dealing, is obligatory only among the brotherhood of Jews.

 

DOING WELL BY DOING GOOD

 

In seif 8, Rav Ganzfried cites the words of our Sages (Bava Batra 89a) that integrity in weights and measures leads to wealth, deceit to poverty.  This seems to echo one popular rationale for consumer protection: "doing well by doing good."  The individual merchant benefits from a reputation for fairness, and the economy as a whole benefits when consumers have confidence that they are getting a fair deal.  Traditional Jewish sources also mention this consideration (Chinukh 337).

 

But at the end he adds another consideration which is foreign to this line of thinking: "What should a person do to gain wealth? [Trade much,] deal fairly, and ask mercy from Him to Whom wealth belongs, as it is written, 'Silver is Mine, gold is Mine'" (Chagai 2:8) (Nida 70b).  This is a motif which we have seen before: ultimately, material prosperity is not dependent on our diligence and cleverness, but solely on Hashem's blessing.  The most important way that fair dealing brings prosperity is not material but spiritual: as a fulfillment of Hashem's will, it brings His blessing upon our livelihood.

 

 

CHAPTER 63 - OPRRESSIVE WORDS AND DECEIVING OTHERS

 

ECONOMIC OPPRESSION, EMOTIONAL OPPRESSION

 

In this chapter Rav Ganzfried teaches the prohibition of "onaat devarim" - teasing or tormenting others.  While these guidelines are in the spirit of the rules of thoughtful conduct in chapters 29 and 30, they are taught here because of their inherent connection to the laws of overcharging.

 

We pointed out last chapter that the word the Torah uses for overcharging, "onaah," usually means oppression.  This terminology shows that the emphasis is not on the ECONOMIC suffering of the person cheated but rather on the EMOTIONAL suffering.  The nature of the prohibition thus goes beyond the economic and even the ethical plane, extending to the humane.

 

The focus on emotional suffering is developed in our chapter, where Rav Ganzfried explains that we need to be especially scrupulous to avoid belittling those whose emotional sensitivity is greater - for instance, a husband must never be insensitive to the feelings of his wife.  Along the same lines, the Kitzur explains that the punishment for this transgression is commensurate with the anguish caused, and that Hashem is especially quick to exact retribution when the victim has been driven to tears.

 

The commercial context of this prohibition shows that commerce too has a human element.  As stated earlier, the halakha views the marketplace as more than just a means to fulfill our material needs; it is an opportunity to forge human connections.

 

MISPLACED APPRECIATION - "STEALING CONFIDENCE"

 

Small and seemingly insignificant distinctions are a very important aspect of friendly gestures.  Slightly used goods may be no worse than brand new ones, but we never give them as presents.  Foreign chocolates may taste no better than local ones, but they send a different message.  In our chapter, Rav Ganzfried explains that these little gestures may never be faked.

 

One example mentioned in the Talmud is giving a non-Jew supposedly kosher meat.  For a non-Jew, kosher meat is the same as treif, but there is a special gesture involved in giving him kosher meat.  Since there is a greater sacrifice on the part of the Jewish giver, who could have eaten the meat himself, a greater message of community is conveyed.  This gesture needs to be genuine, and it is forbidden to give the non-Jew unkosher meat as if it were kosher (Chullin 94a).

 

The Hebrew term for this transgression, misleading someone into thinking that we have made a special gesture on their behalf, is "geneivat daat," which we could translate as "stealing confidence."  According to many authorities, this prohibition is an aspect of the Torah prohibition of stealing property (Ritva Chullin 94a). 

 

Both the terminology and context of the prohibition of "stealing confidence" juxtaposes a purely social slight (an insincere gesture) with a monetary transgression (stealing).  This parallels the juxtaposition of the prohibition of causing emotional suffering (onaat devarim) with causing economic suffering (onaah).  In each case, we see that the world of money and commerce is not meant to be devoid of human values, and dishonesty in business is a personal as well as economic affront.

 

CHAPTER 64 - DOING BUSINESS WITH FORBIDDEN MERCHANDISE

 

In this chapter, Rav Ganzfried explains that it is forbidden to do business on a regular basis in merchandise which is forbidden for Jews to eat.

 

The commentators give two main reasons for this prohibition (see Pitchei Teshuva YD 117:6):

 

1.  The prohibition on dealing is an extension of the prohibition on eating.  Jews must not only refrain from eating certain foods, but they must distance themselves from them.  (In chapter 46, we cited some reasons why the general categories of forbidden foods could be viewed as bearing a negative symbolism, obligating us to avoid them.)

 

2.  Regular contact with forbidden foods creates an immense temptation to eat them.  It would be hard to run a Burger King restaurant without being tempted to take an occasional bite.  At the very least, the dealer would be suspected of eating, since everyone knows how great the temptation is. 

 

In the previous two chapters, we learned that the commercial restrictions of the halakha (overcharging and stealing) are fused with the ethical and humanistic restrictions (causing of anguish insincere flattery).  In this chapter, we see commercial restrictions fused with ritual ones.  In each case the lesson is the same: the world of business is not an isolated area of human activity, cut off from ordinary rules of civility and subject only to the "laws of the market," comparable to the "law of the jungle."  Rather, marketplace activity needs to be integrated into the total context of pious and humane conduct.

 

 

SPECIAL REQUEST

 

I would appreciate hearing from any readers who have used material from these shiurim in teaching others, in any context.  (Shiurim, sermons, shmuessen, and anything else). Please e-mail me directly at [email protected].