There Is No Mitzvah To Be A Freier

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by R. Gil Student

Nice guys do not have to finish last. Nor must they suffer from people who refuse to play by the rules. Jewish law allows for self-defense in many different ways, including financially.

We once discussed physical self-defense. Judaism does not require someone who is hit to turn the other cheek but allows you to hit back. According to some, only if there is danger of you being hit again. The Gemara (Yoma 23a) says that the prohibition against taking revenge does not apply to physical violence. This would allow you to hit back. However, the Rambam (Mishneh Torah, Hilkhos Dei’os 7:7) omits this limitation on the prohibition, apparently forbidding physical revenge, as well. (He either interpreted the Gemara differently or had a variant text.)

The Rosh (Bava Kamma, ch. 3 no. 13) rules that if someone is hitting you, you may hit back and are completely exempt from damages. He started it so you may defend yourself. While you must use minimal force to end the situation, you may physically defend yourself or others against an attack.

Similarly, if someone tricks you into agreeing to an unusually low price, you do not have to be the “freier” (Israeli slang for sucker) and pay for it. The Gemara (Bava Metzi’a 49a) that your “yes” and “no” should be righteous, meaning you must fulfill your words — when you say “yes” or “no,” follow up on those agreements. The Gemara continues that if you agreed to buy something and then change your mind, you have not violated a technical prohibition (since there was no formal acquisition) but you are still subject to a curse (He who exacted payment for the generations of the Flood and the Dispersion will eventually exact payment from someone who fails to keep his word). Seemingly, even if you are tricked, once you agree to a price you must pay it or suffer the curse.

Rav Asher Weiss (Responsa Minchas Asher, vol. 2 no. 112) addresses this question in contemporary Israel. “Shimon” offered to buy the residence he had been renting from “Reuven.” Shimon offered a lowball price and Reuven, who remembered the prices from before recent rises in real estate values, agreed. Before proceeding, Reuven learned that the real value of the residence was much higher and realized that Shimon had intentionally tricked him. Is he required to sell at the lower price?

Aside from other details that relate to this specific case, Rav Weiss argues that Reuven is not required to honor the earlier price. There is no mitzvah to be taken advantage of by dishonest people. Rav Weiss quotes the Chinukh (338) who says that the prohibition to insult someone does not apply when someone insults you first. While it is praiseworthy to hear your own insults and refrain from responding, this practice is not obligatory.

The Rema (Shulchan Arukh, Choshen Mishpat 228:1) writes that if someone is insulting himself, you may insult him also. Later authorities struggle to understand this ruling. Most follow the Sema (ad loc., no. ), who explains that this person is acting so improperly that the prohibition no longer applies to him. The Be’er Ha-Golah (ad loc., no. 5) reads the Rema as referring to “him,” meaning the second party who is now allowed to insult the first. In other words, the Rema follows the Chinukh, who allows responding to an insult with another insult.

Rav Weiss then takes a big step, applying this principle broadly. The Torah does not require you to suffer someone’s insults. Similarly, you do not have to be someone’s sucker in a financial deal. “The rules of justice and morality do not require someone affronted to quietly accept someone else’s trickery.”

He briefly quotes the Gemara (Megillah 13b) that asks why Ya’akov, on meeting Rachel, said that he was her father Lavan’s brother (Gen. 29:12). Ya’akov was Rachel’s cousin, not her uncle. The Gemara explains that the following conversation ensued between the two. Ya’akov asked Rachel to marry him. She replied that he cannot marry her because her father is a master of trickery. Ya’akov replied that he was Lavan’s brother, i.e. peer, in trickery.

Is it proper for Ya’akov to (try to) trick someone who is going to trick him? The Gemara defends this practice with a passage that appears twice in the Bible:

With the merciful you show yourself merciful, with the upright you show yourself upright, with the pure you show yourself pure; and with the crooked you show yourself shrewd. (2 Sam. 22:26-27; Ps. 18:27-28)

While Rav Weiss does not quote this, the Meiri (Bava Kamma 123a) offers a succinct application of this principle:

It is forbidden for the righteous to walk in a path that has any aspect of trickery… However, if they have business dealings with tricky people and are concerned that if they [the righteous] proceed simply, the tricky people will prevail, they may [use trickery] in order to protect themselves from the others.

No one is permitting dishonesty. They are permitting leveling the playing field, realistic behavior that does not automatically disadvantage those who are honest. The Torah does not require you to be a freier.

About Gil Student

Rabbi Gil Student is the Editor of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student currently is serving his third term on the Executive Committee of the Rabbinical Council of America and also serves as the Director of the Halacha Commission of the Rabbinical Alliance of America. He serves on the Editorial Board of Jewish Action magazineand the Board of OU Press. He has published four English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

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