The Torah writes that the flood was visited upon the generation of Noah because of the people’s wickedness. The verse singles out the crime of hamas as the iniquity for which the Hashem decided to wipe away the corrupt civilization from the earth: “So God said to Noah: I am going to put an end to all people, for the earth is filled with hamas because of them; and, behold, I will destroy them with the earth” (Bereishis 6:13).
Although the word hamas can be interpreted in a variety of ways, Chazal write that the direct meaning is crime against others’ property. The Gemara cites the flood as proof of the severity of the crime of theft: in spite of the general wickedness of the generation, which also reached lows in lewdness and promiscuity, their final sentence was meted out on account of theft (Sanhedrin 108a).
Later authorities use the word hamas, with some license, in reference to a range of property offenses that involve vice and corruption.
For example, Sefer Hassidim (893) writes that it is prohibited for a group of vendors to form a cartel, and to artificially raise prices for their personal gain (at the expense of buyers), and upon them it is said: “…for the earth is filled with hamas.” Although there is no formal (biblical or Talmudic) prohibition against forming a cartel (though Chazal certainly indicate that it is wrong to hike up prices), Sefer Hassidim asserts that such activity is included in the concept of hamas.
In the Talmud, the word hamas, and the hamsan who performs the crime, has a specific meaning: a hamsan is somebody who takes somebody else’s property against his will, yet by contrast with the regular thief (gazlan), he pays him for it (Bava Kama 62a). The hamsan forces the owner to sell his property against his will.
In the present article we will discuss the prohibition of hamas and the Talmudic hamsan. What are the parameters for this prohibition? What kind of pressure must one apply to a potential seller in order to transgress the prohibition? How is this related to the prohibition of lo tachmod, and can one transgress by merely coveting, even if the item is not taken?
These questions, among others, are discussed below.
Hamas as a Torah Transgression
The Torah prohibition that seems to be involved in the act of hamas is that of lo tachmod. The Gemara (Bava Metzia 5b) relates a case in which a guardian (shomer) wishes to refrain from making an oath concerning the loss of the object deposited with him (where he is in fact exempt from liability), preferring instead to pay for the lost item. On account of the concern that the item is not really lost and he just wishes to keep it for himself, the Gemara says that the guardian must make an oath to the effect that the item is not in his possession.
The Gemara proceeds to question the qualification of the guardian to make the oath. Surely, the very requirement of the oath indicates that we suspect the guardian of monetary fraud, and specifically (as Rav Abba of Difti explains) of lo tachmod, coveting another’s property. Since he is under suspicion of a Torah transgression, how can we rely on his oath? The Gemara responds to this, “People believe the prohibition of lo tachmod applies only without payment.” Since the guarding is offering to pay for the item, his understanding is that he does not transgress the Torah prohibition and therefore he is not disqualified from making an oath.
This Gemara implies that even when a person pays for the item he covets and takes, he really transgresses the Torah prohibition of lo tachmod—yet he is not disqualified from making an oath because of his belief that he does not transgress the prohibition. This is also the implication of the Gemara elsewhere (Bava Kama 119a).
Another source, however, indicates that an act of hamas does not involve a Torah prohibition. The Gemara (Sanhedrin 25b) discusses the disqualification (as a witness) of thieves and of those who commit hamas, and explains that the Sages disqualified the hamsan when it became common practice to snatch others’ property in exchange for payment. If the act of hamas involves a Torah transgression, there would be no need for this rabbinic disqualification.
Tosafos and the Rambam
According to one explanation given by Tosafos (Bava Metzia 5a), the prohibition of lo tachmod applies specifically to cases in which an item is coveted and taken without the offer of payment. That which people say, namely that the prohibition of lo tachmod applies specifically without payment, is in fact the truth!
As for the Gemara in Bava Kama (119a) which implies that hamas is a full transgression, Tosafos explain that this is only an asmachta—a law loosely based on a verse–but is not a full Torah prohibition.
However, another explanation offered by Tosafos (Sanhedrin 25b) is that the prohibition applies even when payment is made. This emerges from the Mechilta, a tannaic source where we find that a hamsan is biblically disqualified from testimony (Mechilta debei Rabbi Yishmael, Masechta Dekaspa 20; the Gemara, Sanhedrin 27a, has a different version of this source). This is also the opinion of the Rambam (Sefer HaMitzvos 286), who cites the Mechilta.
The Rambam and subsequently the Shulchan Aruch (Choshen Mishpat 359, 10), therefore, rules that hamas involves a full Torah prohibition (Gezeilah 1:9): “Anyone who covets a servant, a maidservant, a house or utensils that belong to a colleague, or any other article that he can purchase from him, and he pressures him with friends and requests until he agrees to sell it to him, violates a negative commandment, even though he pays much money for it, as it states: ‘Do not covet.'”
Somebody Who Merely Covets
The Rambam emphasizes that the violation of “do not covet” is only complete if the item is actually seized: “One does not violate this commandment until one actually takes the article he covets, as reflected by the verse: ‘Do not covet the gold and silver on these statues and take it for yourself.’ Implied is that the word tachmod refers to coveting accompanied by a deed.”
This, however, does not imply that somebody who covets without taking the item is innocent of sin. The Rambam (Gezeilah Ve–Aveidah Chap. 1) and the Shulchan Aruch (Choshen Mishpat 359:10-11) stress that there are in fact two prohibitions related to coveting another’s property, one derived from the tenth commandment in Yisro (lo tachmod) and the other from the tenth commandment in Ve’eschanan (lo tis’aveh).
While lo tachmod is contingent on actually taking the coveted item, the prohibition of lo tis’aveh is transgressed by coveting alone, as the Rambam writes (Gezeilah 1:10): “Anybody who desires his fellow’s house or wife, or anything else that can be purchased for money—once he considers how he will buy the item, and his heart is sealed on the matter, he transgresses a negative prohibition, as it says: ‘You shall not desire’—there is no desire other than in the heart.”
This prohibition is thus transgressed in thought alone, even without an accompanying deed. These authorities rule further that a mere thought of jealousy is not sufficient, and the thought must develop into a practical plan of how to procure the desired object. The prohibition is transgressed after a person reaches the thought of, “how I will purchase this thing.”
The Aruch Ha-Shulchan (359:8) adds that the transgression is contingent on a concrete decision to set the plan in motion: The plan itself is not sufficient, and in order to transgress a person must actually decide to execute it. He adds, however, that it is certainly correct to avoid all such thoughts.
Pressuring the Owner to Sell or Give
Whether a full Torah prohibition (of lo tachmod) or otherwise, the law of hamas raises an ethical dilemma we often encounter.
Upon seeing an item that we need or desire—a house with just the right accessibility options for elderly parents, a well-kept car that seems to hardly be in use by its owner, or a company we think can do better under new management—part of ordinary human interaction is to think about whether the item might be available for purchase, and to make an offer. At which stage does this turn into the prohibition of hamas?
The above-mentioned passage in the Rambam stresses that the prohibition of lo tachmod is contingent on the person, “pressur[ing] him with friends and requests until he agrees to sell it to him.” In Shut Betzel Ha-Chochmah (Rabbi Betzalel Stern, Vol. 3, no. 43) the author writes that this pressuring involves requesting the item at least three times, proving (from Sema 228:8) that any less is not considered pressuring, and does not involve a prohibition.
The actual halachic ruling, however, will depend on the person and his relationship with the owner. For some people, as Rabbeinu Yonah (Shaarei Teshuvah 3:43) points out, even a simple request will at times be considered an application of pressure. This can be true of a rabbi, a boss, or somebody in a position of authority. For ordinary people however, there will be no prohibition in merely asking if the owner is willing to sell the item, unless illegitimate pressure is applied.
Rabbeinu Yonah mentions that the prohibition applies both to one who pressures the owner to sell, and to pressuring the owner to give the item as a gift. Based on this ruling, the Chafetz Chaim (Sefer Mitzvos Hakatzar, Lo Ta’ase 40) writes that a chasan (groom) must be careful not to pressure his future father-in-law to give him gifts beyond those that were agreed in the tena’im, for this will involve a transgression of lo tachmod.
However, the Chafetz Chaim also implies that the concept of hamas is limited to wanting a specific item. The foundation of the prohibition is lo tachmod, referring to coveting, and therefore there must be a concrete object in mind in order for there to be a prohibition. Based on this, the transgression applies only when a chasan demands an item that belongs to his father-in-law. Note that were it not for this qualification, every child who insists his parents buy him something will transgress the prohibition!
I Want to be just as Rich!
A source concerning the matter of wanting a non-specific item can be found in the following question: Does the prohibition of lo tachmod apply to somebody who wants to be as rich as his neighbor, or wants a car like his neighbor’s, but not his specific car?
Relating to this issue, Sefer Derech Pikudecha (of the Benei Yissachar, 38:2) writes, “Even if a person covets riches as those of his fellow, and does not covet a specific item belonging to his fellow, he transgresses the prohibition of Lo Tachmod.” This is possibly also the opinion of the Malbim (Shemos 20:13), who mentions somebody who “covets the wealth of his fellow.”
However, Shut Betzel HaChochma proves from the simple reading of many rishonim and poskim that the prohibition is only transgressed if a person covets an item belonging to one’s fellow. Rabbi Avraham ben Ha-Rambam writes this explicitly, stating that the prohibition applies to “a particular item in the possession of another, and not to something similar to the possession.”
The Orach Meisharim (13) adds that one cannot expect somebody who sees somebody’s [attractive] food and drink not to crave it, and no prohibition applies provided the craving is directed to “general ice cream” and not to that person’s specific ice cream. A similar ruling is given by Shut Divrei Yatziv (Choshen Mishpat 65), who writes, “When a person wants to be as rich as somebody else, no prohibition is involved.”
An Item that is Easily Found
Beyond the rulings mentioned above, we find in Eretz Zvi (4, citing the Imrei Emes) that the prohibition of lo tachmod does not apply to something that can be purchased with relative ease on the market.
The halachah is cited without any accompanying explanation, but it appears that because the item can be found in the market, the coveting does not relate to the specific item belonging to another person, but to the idea of the item in general—not Yaakov’s Ferrari, but a Ferrari in general.
Nonetheless, this ruling involves a significant chiddush, and other authorities do not mention the qualification.
Lo Tachmod for Organ Transplants
Rabbi Yisrael Yaakov Fischer (Shut Even Yisrael 8:105) was asked about whether a person is obligated to donate a kidney for his brother or sister, in particular where parents are pressing him to do so. As part of his response he discusses the matter of whether pressing a son to do so might involve the prohibition of lo tachmod.
In this connection Rabbi Fischer writes, “The prohibition is certainly limited to something that one can see and covet, and does not apply to something that one cannot see.” He also writes, “The prohibition only applies to something that a person covets for oneself, and not to something that somebody covets for somebody else.”
Both of these halachic rulings are significant.
Additionally, concerning the question of organ transplants, it may be that the prohibition of lo tachmod cannot apply, because the transgression is limited to possessions (the verse refers to “your fellow’s house … and all that belongs to your fellow”), and certainly does not apply to the performance of some action (such as playing the piano).
If we assume that a person’s organs are not among his possessions, it follows that performing a transplant cannot be compared to a sale or a gift, but is rather like a physical action, so that the prohibition will not apply.