Parashas Shelach brings us the tragic tale of the meraglim, the spies that Moshe sent to scout the Land of Canaan in advance of the planned entry of the Children of Israel. As the Torah relates, the spies brought a false and evil report on the Land, turning the heart of the nation against Moshe and against Hashem. The result was a national disaster.
Chazal teach that the sin of the meraglim was to place the peh before the ayin. In the Hebrew alphabet the letter peh, which also means “mouth,” follows the letter ayin, which means “eye.” In the case of the meraglim their mouth came before their eye, rather than following it.
Rav Hutner explains (Pachad Yitzchak, Rosh Hashanah no. 16) that this defines the evil of sheker, falsehood. Falsehood is a barrier “between the root and the branch,” between reality and the story told by the observer. We are charged with placing eye before mouth, i.e. ensuring that our words (and actions) are faithful to reality. Sheker is a deviation from this order, placing mouth before eye. “Before” here means in terms of priority, not temporally. We must give priority to the evidence of the eye and not let the mouth construct its story without the input of the eye.
In this and in coming weeks we embark on a series on the laws of sheker, falsehood. Using sheker can become a negative character trait that we must try, as far as possible, to entirely erase from our selves. Indeed, the Gemara teaches (citing Rabbi Elazar), “One who speaks a falsehood is considered as if he serves idols” (Sanhedrin 92). Only concerning lies do we find the unique wording of the pasuk obligating us not just to refrain from it but also to distance ourselves: “midvar sheker tirchak” (Shemos 23:7).
It is important to be aware of many laws and details that emerge from Chazal and later authorities concerning the concept of sheker. We will, please G-d, discuss these principles and details in the coming weeks.
In the present article we will discuss the basic Torah prohibition against lying: Does it apply specifically to a Beis Din setting, or even outside of Beis Din? Also, does the prohibition become more severe when a financial consequence is involved? Is there a prohibition against passive lying? These, and other matters, are discussed below.
Lying as a Torah Prohibition
In his introductory list of speech-related prohibitions (Asin 13), the Chafetz Chaim mentions that one who adds falsehoods to slanderous speech transgresses the positive commandment of midvar sheker tirchak. Based on the Semag, who numbers it among the taryag mitzvos (Asin 107), he explains that this is a full Torah mitzvah. In addition to the Semag, the Yere’im (235) and the Semak likewise include the obligation to be truthful in their list of Torah mitzvos.
The discussion of the prohibition of midvar sheker tirchak in Chazal, however, is the Gemoro in Shavuos (30b, 31a), in which a number of offenses are extracted from the obligation to distance oneself from falsehood. Notably, all of them relate to cases that involve monetary consequences, and specifically in a Beis Din setting. For instance, a judge must not seek to uphold a wrong judgement, and a witness may not testify with a fellow if he knows that his partner is a thief.
This suggests that this Torah offense is limited to lies in Beis Din, or at the very least to lies that have a real financial implication (see below). In fact, even the placement of the Torah instruction appears to imply this, coming as part of a list of instructions to judges (Shemos 23:7). The Rambam (To’en Venitan 16:10; Sanhedrin 21:7, 21:10, 22:2, 22:3; Eidus 17:6) seems to verify this suggestion, mentioning the prohibition specifically concerning lies (or other dishonest speech) in Beis Din.
In the Book of Mitzvos the Rambam likewise mentions the offense as a part of the prohibition of false testimony. This is also reflected in the expositions of the Rashbam, the Ibn Ezra, and the Seforno on the Torah. This does not imply in any way that the Torah condones speaking falsehood since there are other prohibitions involved-just the issue whether the specific prohibition of midvar sheker tirchak applies outside Beis Din is a dispute.
Dancing Before the Kallah
Concerning the matter of lying outside of Beis Din, we find an important source for the matter in the Gemara in Kesubos (17a).
Here we find that Beis Shammai forbids heaping false praise upon a newlywed bride. The reason given for this is midvar sheker tirchak. Beis Hillel, however, permit giving undeserved praise. Hence we sing that she is a kallah no’ah vachasudah irrespective of the bride’s actual looks and character. But the reason for this, according to many authorities (see Ritva, Kesubos 17a, Sha’arei Teshuvah 3:181), is not because Beis Hillel disagree with Beis Shammai’s basic assumption, but rather on account of a special leniency of darkei shalom (which is derived from Torah verse; see Yevamot 65b).
This implies that without a special permit, this and similar lies are prohibited by the Torah verse of Midvar Sheker Tirchak.
Yet, we find in Maseches Kallah (chap. 10) that Beis Hillel permit giving the bride undeserved praise specifically because there is no (Torah) prohibition on lying outside of Beis Din. According to this, lying outside of Beis Din seems to be a debate between Beis Shammai and Beis Hillel (see also Sefer Hamitzvos le’Rasag, Asei 22, and the illuminating annotations of Rav Yerucham Perlow, who writes at length on the matter).
Note that irrespective of the Torah prohibition, several Rishonim imply that aside from the great disgrace of lying, an actual prohibition is also involved. An important source for this is the Chinuch (nos. 74; 407). Although the Chinuch maintains (like the Rambam) that the full prohibition is limited to a Beis Din setting, he adds that ordinary lies are also included, in a broader sense, in the Torah instruction.
This is echoed by the Rema (Yoreh De’ah 402:12), who rules that even though one should generally avoid transmitting ill news [of a relative’s death], when asked directly one must answer truthfully. The reason for this is midvar sheker tirchak.
Lying for the Sake of Truth
An interesting dilemma arises when a defendant knows that a claim against him is false, but has no way of defending his position without telling a lie. May he lie in order to reach a true verdict, or must he tell the truth, despite his knowledge that his telling the truth will lead to an untrue verdict? The same applies to a plaintiff: Is one permitted to make a claim that is untrue, if that is the only way to reach a true judicial verdict?
In the case of giving testimony, there is no question that a witness may not testify falsely, even when this would lead to a true verdict. The Torah prohibits all forms of false testimony. Even if one hears something from an absolutely reliable source, he may not testify as an eyewitness before Beis Din (see Rambam, Eidus 17:1). The end does not justify the means.
In the case of false claims, however, the matter is not as clear. The Ritva (Kesubos 21a) implies that this is sometimes permissible. Concerning a case in which the plaintiff used a forged promissory note to prove his case, the Ritva rules that it is permitted to claim that the debt was repaid. Since asserting the truth—that there never was such a debt—would result in a false judgment based on the promissory note, it is permissible to claim an untruth for the purpose of establishing a true ruling.
The P’nei Yehoshua (Kesubos 28a) adds that one may even forge a counterfeit document testifying to the repayment of the debt, thus defeating forgery with forgery. Both sources imply that these halachos are obvious, and require no proof.
On the other hand, the Rashba (Responsa 3:81) rules that in a Beis Din setting it is forbidden to use a falsehood to procure a true judgment. In his words, “[Heaven] forbid for the offspring of Avraham to speak a lie, even when it is a matter of loss.” The Rashba proves his point from the Gemara in Shevuos (31a) which prohibits three lenders without proof of their debts to split into two groups, one of them acting as the plaintiff and the other two as witnesses.
According to the Rashba, it is forbidden to mislead Beis Din into passing a true judgment by means of false claims. A plaintiff must tell the whole truth, disregarding the potential counterclaims of the defendant. However, after a false claim has already been introduced, it might be permitted (based on the Ritva) to counter with a falsehood. This false statement comes to dispel a lie, and thus to uphold the truth.
Naturally, Rabbinic counsel should be taken before any practical application of these Halachos, which touch on severe Torah prohibitions.
Lying for Financial (or other) Gain
In all of his nine degrees of liars—nine levels of gravity in lying—Rabbeinu Yonah (Sha’arei Teshuvah 3:178-186) does not mention the Torah words midvar sheker tirchak, citing instead other verses in Tanach. As noted above, most authorities agree that the Torah prohibition applies specifically to a Beis Din setting. Rav Chaim Kanievski shlita (Maseches Kutim, note 30) derives from here that everyday lies (that is, outside of Beis Din) do not transgress midvar sheker tirchak.
However, in matters of commerce a separate prohibition against falsehood applies. Beyond the general obligation of distancing oneself from falsehood, the Gemara (Bava Metzia 49a) notes that there is a prohibition of acting (in matters of commerce) as “one in word and one at heart.” This is derived by the Gemara from a Torah verse ( …hin tzedek, Vayikra 19:36) demanding honesty in business transactions.
Based on this source, the Shulchan Aruch Harav (Mechira 2) writes that somebody who promises to give a gift (the same applies to making a sale) while not intending to actually do so, transgresses a full Torah law—not midvar sheker tirchak, but rather the obligation of being honest in one’s speech.
Among the first questions a person is asked upon reaching the Divine tribunal is: “Did you do your business dealings with honesty?” (Shabbos 31a). The obligation to be truthful in our transactions and dealings is absolute.
Is there a prohibition against passive lying? A source for this matter is found in the Gemara (Shvuos 31a), which as noted above gives many halachic ramifications of the instruction to distance ourselves from falsehood. Among them, we find a case of a rabbinical student, who sees that his rabbi and mentor is about to make a mistaken judgment.
The Gemara teaches that he may not wait for the mistaken judgment to be passed, only then to refute the judgment and lead the way to a new conclusion (so that the new ruling will be said in his name). Rather, he is charged with pointing out the error as soon as he hears it. The reason for this instruction is given as midvar sheker tirchak. To allow the wrong judgment to be passed, even if it is somebody else who is passing it, violates the Torah obligation to distance oneself from sheker.
We see from here that a passive transgression of midvar sheker tirchak is also considered a transgression. In the case of the Gemara, the student is considered to be participating in the lie of the false judgment by refraining from correcting it. Likewise, if listening to untruthful words demonstrates solidarity with them, or if through lending our ears we encourage the lies from the mouth of the speaker, it is forbidden to hear the falsehood.
Lying with Gestures
Of course, any form of communicating a lie—verbal, written or by means of any actions or gestures—is likewise forbidden.
This also emerges from another of the Gemara’s cases (Shevuos, ibid.), in which a rav asked his student to stand next to a solitary witness, so that the adversary will be led to believe that there are two witnesses on the rav’s side. This is forbidden on account of Midvar Sheker Tirchak.
In line with the above, the Sefer Chassidim (1058), Orchos Tzaddikim (Sha’ar Ha’Emes), and Kovetz Shiurim (Vol. 2, p. 64) all mention that one’s smallest gestures and gesticulations must be absolutely truthful.
The Sefer Chassidim even mentions specific verses that allude to the various actions of man, such as winking an eye and nodding the head, which imply that all of them must be clear of falsehood. Even one’s silence, writes Rav Elchanan Wasserman, must be truthful.