Since trickery and deception are an unfortunate part of life, we continue our discussion of sheker with the current article on geneivas daas. Geneivas daas translates literally as theft of the heart, which refers, roughly, to giving a false impression.
As we will see, the prohibition against geneivas daas is distinct from the concept of sheker, and it is important to define the parameters of the injunction. In which circumstances does the prohibition apply, and is a degree of deception sometimes permitted?
Take for instance the following scenario. A charity organization wishes to give a donation to a bride (and her parents). In order to spare the family the shame of receiving charity, it is suggested that the money be given as a gift by a close family friend, thereby appearing to be a wedding gift rather than a charity donation. Is this permitted? When is it permitted to engage in deception, and does a person’s intent make a difference?
The Prohibition of Deception
As noted, the halachah of deception, geneivas daas, is distinct from the general concept of falsehood. Rather than stating a falsehood, the concept of geneivas daas relates to the way in which a person presents himself to somebody else. If Reuven presents himself to Shimon as a friend, whereas in fact this is not the case, he “steals the heart” of Shimon.
The term geneivas daas (or geneivas lev) is found in the book of Shmuel (II 15:6) in connection with Avshalom’s rebellion against his father: “Avshalom stole the heart of the nation.” It is also mentioned in connection with Lavan, Yaakov Avinu’s notorious father-in-law: After Yaakov abruptly left his house, Lavan reproached him with the words, “And you stole my heart.”
Although the Torah does not present the concept as a formal prohibition, many authorities maintain that geneivas daas involves a full Torah transgression. According to the Ritva (Chullin 94a), the source of the prohibition is the transgression of theft. Although one might think that theft is limited to stealing money or goods, the Ritva (citing Tosafos) explains that it applies even to theft of the “heart.”
The Semag (Negative Prohibition 155) and the Shulchan Aruch Harav (Onaah 11) likewise state that the prohibition of deception is a Torah law. The Semak (262), however, writes that the prohibition is rabbinic, and this is also the opinion of the Bach (Choshen Mishpat 228).
Some authorities make a distinction between commerce and other matters, writing that the Torah prohibition applies only to sales and commerce (see Sefer Ha-Kovetz, De’os 2:6; see also Shulchan Aruch Ha-Rav, who makes special mention of deception that results in financial gain). Certainly, if a merchant purposely conceals a flaw in the goods he sells, it will be a full transgression of the prohibition (and be classified as monetary theft as well).
One way or another, the Gemara (Chullin 94b) singles out deception as a prohibition, indicating that its severity goes beyond ordinary falsehood: “It is forbidden to deceive others – even a non-Jew.” Moreover, the Tosefta (Bava Kama 7:3) states that of all types of thievery (in one version seven types are given), geneivas daas is the most heinous. Ordinary theft relates to the most superficial part of man – his possessions. Geneivas daas touches his innermost layer: his heart.
Halachic Rulings of Deception
A better picture of the prohibition can be acquired by observing some of the classic examples of geneivas daas. The source of these examples is the Gemara itself, and the cases are cited by later authorities such as the Rambam (Deos 2:6) and the Tur (Choshen Mishpat 228).
After introducing the general obligation to synchronize verbal expression with thoughts, the Rambam adds the following:
“It is forbidden to steal the heart of creatures, even the heart of a non-Jew. How is this so? One may not sell non-kosher meat to a non-Jew under the pretense that the meat is kosher; […] One may not plead insistently with somebody that he should come to eat with him, in the knowledge that he will not do so; […] one may not open numerous barrels in another’s presence, pretending that this is being done his honor, whereas in fact it is being done for commercial purposes. This, and all matters similar – even a single word of deception – is forbidden. Rather, one’s tongue should be true, one’s spirit sincere and one’s heart pure of all corruption and crookedness.”
The common element of all these examples is that a person gives his fellow a false impression. In one example he causes his friend to think that he wishes to invite him, whereas in actual fact he has no wish to do so. In another he makes someone believe that he is prepared to spend a great deal of effort to serve him, whereas in actual fact this is not so. The prohibition is in creating a false impression.
Common Examples of Geneivas Daas
A common example of geneivas daas is cheating on tests. Even when there is no direct financial consequence, cheating in exams “steals the heart” of the examiner or any recipient who is interested in the results, since he is lead to believe that the examinee knows the material. Furthermore, if the examinee obtains some form of certificate through his cheating, his offense may have long-term repercussions: whenever he uses his fraudulently attained certificate, he is “stealing the heart” of whoever wishes to know his past results.
Another frequent application is described by the Ben Ish Chai (Ki Teitzei 9). Arab townswomen used to place large open tubs of yogurt for sale, from which potential buyers could taste a sample. The Ben Ish Chai writes that those who make a tasting circuit without any intention to actually buy yogurt transgress the prohibition of geneivas daas (since they give a false impression of wishing to purchase the goods). He adds that they also transgress the prohibition of gezel (theft), because permission to taste the yogurt is granted only to potential customers, and not to those whose only wish is to eat free yogurt.
A modern-day equivalent is exploiting money-back policies offered by stores. When stores offer a return option for a particular product, they do so specifically for customers who desire to buy the product (or have a realistic thought of doing so), but wish to reserve the option of returning the product should they find it unsatisfactory. If the customer needs the product for one-off use and knows in advance that he will return it after the event, exploiting the money-back policy may be “stealing the heart” of the store.
The same is true of test-drives. One may not take a fancy car for a short spin, under a false pretext of being interested in purchasing it. However, if it is common practice to do so and the showroom owner is therefore not given a false impression of intention to buy, there will not be a problem. There is a similar issue of onaas devarim: It is prohibited to ask for the price of items in a store if one has no intention of buying right away, since this will cause the owner grief.
A further interesting application is given by the Sefer Chassidim (51), who writes that one may not greet a non-Jew [the more so a fellow Jew] with an insult, expressing it such a way that it appears to be a blessing. I once witnessed such an incident in Russia, where an English-speaking tourist greeted a Russian local with a smile and a juicy insult (in English). This is surely not the Torah way.
Guest of Honor
Although deception involves a severe prohibition, the line between transgression and mitzvah can be thin. The Gemara (Eiruvin 100b) writes that that it is proper to appease one’s spouse by declaring one’s intent to buy her an exquisite garment, implying her stature in his eyes as deserving of such. Ultimately, however, the statement is nothing more than a wish, since the husband lacks the means to buy the garment and he makes it clear that he will only buy her the garment if or when he has the means to do so.
We learn from the Gemara that where a person’s intention is to honor somebody the prohibition of geneivas daas does not apply, regardless of the misrepresentation.
This ruling is stated explicitly by the Gemara (Chullin 94a), where we find that it is forbidden to perform actions that give others a false impression, such as inviting them in the knowledge that they won’t come, or creating the impression that barrels of wine were opened in their honor when they were opened for other purposes. Yet, the Gemara writes that where these actions are carried out to genuinely bring honor to the deceived, no prohibition is transgressed.
In fact, authorities note that it is sometimes important to invite a person even where it is clear that the invitation won’t be accepted, to insure that no offense will be taken from not extending an invitation (Sema 228; Aruch Ha-Shulchan 228:3). This applies when it is common courtesy to invite strangers.
The Question of Intention
By contrast with everyday lies, good intentions alone are not enough to waive the prohibition of geneivas daas. This halachah is derived from the teaching of a Mishnah (Demai 4:4), which states that a person should not give terumah to a Kohen or maaser ani to a poor person on Shabbos, but adds that it is permitted to feed them the terumah or maaser if it is normal for them to eat with him on Shabbos. The Mishnah adds a condition: He must first inform them that the food is terumah or maaser, as the case may be.
A number of commentaries (Tiferes Yisrael; Shnos Eliyahu; Mishnah Rishonah) explain that the reason the host must declare the food is terumah is on account of the prohibition of geneivas daas. Thus, we find that in spite of the fact that there is no intention to deceive – the intention is only to fulfill the mitzvah of giving terumah to a Kohen – the prohibition of geneivas daas remains.
Similarly, intention to give the other person a good feeling is certainly not sufficient to permit the prohibition. The classic cases of geneivas daas are cases in which a person wishes to make a good impression which will give the other person a good feeling – but where the impression is false, it is forbidden to do so.
It is noteworthy that the Rambam does not give this interpretation to the Mishna in Demai, and explains rather that if the host does not inform his guests of the food’s status the guests will think it a gift from him and he would wrongfully derive benefit from the terumah.
Due to the fact that the prohibition is potentially a Torah transgression, it is prudent to heed the stringent opinions. Therefore, one should avoid disguising a charity donation as a personal gift (see Shut Binyan Av, Vol. 4, no. 77; Titen Emes Le-Yaakov 5:2). Some authorities, however, are lenient on this point (see Shut Maharam Schick, Yoreh De’ah 230, discussing disguising a donation of maaser money as a gift; see also Tzitz Eliezer Vol. 9, 1:4). Certainly, it is permitted to disguise the donation as a gift if the needy recipient will otherwise refuse it (Kesuvos 67).
Attending a Wedding
The prohibition of geneivas daas applies even where the false impression is not actively created, but is likely and natural under the circumstances. However, if another party receives a false impression of his own accord, where it is not natural that such an impression should be given, there is no obligation to remedy the mistake.
For instance, consider the following case. Reuven, a close friend of Shimon’s, is invited to the wedding of Shimon’s daughter. Arriving at the wedding, Reuven notices that in the adjacent hall Levi, an acquaintance from shul, is marrying off his son. Reuven drops in to Levi’s wedding and Levi, unaware of Reuven’s connection with Shimon, is very impressed that Reuven made the effort to come to his wedding.
Although a false impression has been given, Reuven did not intend it, and took no active measure to create it – he only wanted to drop in to say mazal tov to his acquaintance. Under these circumstances, the question of a violation will depend on the impression conveyed. If Levi could easily imagine that Reuven was there for some other reason and had not come especially for his wedding, it is permitted (based on Tosafos, Chullin 94a; concerning weddings see Titen Emes LeYaakov 5:125). However, if the normal reaction is to believe that the guest went to great pains to attend the wedding, where in truth he hadn’t, the guest would be required to reveal the true circumstances.
For this reason, Rabbi Shlomo Zalman Auerbach, zatsal, when dropping in to a wedding in Bnei Brak (he lived in Jerusalem), was careful to approach the baal ha-simcha and inform him that he was already in Bnei Brak for another reason, so that he should not think that he came specially.
It is important to increase awareness of the prohibition of geneivas daas, which as we have seen is no light matter. Out of a justified desire to give others a good feeling, we may feel an inclination to give a false impression: If somebody will feel better for it, what is wrong?
However, the Torah forbids us from giving false impressions, and this might even be a Torah prohibition. Although out of genuine need we may speak falsely, geneivas daas is more stringent and, with a number of exceptions, one must be careful to avoid that kind of deception.