Acharei Mos-Kedoshim – Fooled a Storekeeper who did not Sell Chametz

Question

I live in a neighborhood which until recently was populated entirely by secular Jews. Recently more and more Torah-observant Jews moved into the neighborhood. However, the local grocery store is owned and has been operated by the same non-observant person for the past twenty years. He has not adjusted to the change in the population. One way this is manifested is the sale of chametz. Since he opened his store, the owner never sold his chametz and even when it became that a sizable percentage of his customers were observant, he failed to sell his chametz. In order to impress upon him that is worthwhile for him to sell his chametz, last year, I and a few others went to his store after Pesach and loaded our shopping carts with many items. When it came to check-out we inquired if he had sold his chametz. When he replied in the negative, we informed him that we cannot buy these goods and returned everything to the shelves. Our tactic was effective and this year Baruch Hashem he sold his chametz. My question is whether we violated the prohibition of geneivas da'as last year since, even though we are customers, we were not planning to buy the items in our carts since we knew he did not sell his chametz and in any case would not have bought so much. We just loaded our carts in order to exaggerate his loss of business due to his failure to sell his chametz.

Answer

There are a number of issues concerning geneivas da'as that require consideration to determine the answer to your question.

One reason you might not have violated this law is that your intention was to cause the storekeeper to cease violating the Biblical injunction to refrain from owning chametz on Pesach. The prohibition of geneivas da'as does not apply when the intent is to prevent a fellow-Jew from violating the law.

There are several proofs that the prohibition is suspended. One can be derived from a case that is brought in the Gemara (Shabbos 139A) where the residents of a town asked three halachic questions and Shmuel said they should be given the wrong answer to all the questions, by telling them that there was absolutely no way that they could do what they asked, even though in fact there was a way that they were permitted to do all three things. The Gemoro explains that Shmuel's reason was that the people were ignorant and if they were given the correct answers they would likely go beyond the law and do things that are really prohibited. Thus, we see that even to prevent someone from violating a prohibition we may mislead him. It follows that if someone is actually violating a prohibition, we may mislead him in order to prevent him from continuing to do so.

Another proof is derived by the Hilchos Mishpot (page 78) from another case in the Gemara (BM 51A) where a seller wanted to charge six coins for an item whose real price was five coins. A customer knew that he could bargain the seller down to five-and-a-half coins. However, he purposely did not bargain the seller down because he knew that if he did so, he could not reverse the sale because the overcharge was less than a sixth. Therefore, he paid six coins knowing that he could get the extra coin back because the overcharge was a sixth. Thus, he tricked the seller who thought that he would be able to keep the overcharge.

The reason he was allowed to trick him was by tricking the seller he prevented him from violating the prohibition to overcharge. Many maintain (Ramban in Chumash, Rosh (BM 4, 20)) that the Torah prohibits overcharging even if the overcharge is less than a sixth. By tricking the seller, the customer prevented him from violating the prohibition against overcharging.

Similarly, the Toras Hayoledes (note at the end of chapter 59) ruled in the case of a person who adhered to the laws of aveilus but was not Shabbos-observant and the last day of the shiva fell on Shabbos. This person asked whether he must sit shiva for the entire seventh day or could end the shiva before the end of the seventh day. The Toras Hayoledes proves that even though one may end the shiva before the conclusion of the seventh day, the Rabbi should answer that he must observe the entire day since that will prevent the mourner from desecrating the Shabbos. Once again, we see that one is allowed and should even mislead someone to prevent him from violating a prohibition.

A third reason you did not violate the prohibition of geneivas da'as last year is that you and your friends are regular customers and would have bought at least some of these products. It was only due to the failure to sell the chametz that you did not complete the purchase. While it is true that you knew that you were not going to buy these products in your shopping cart at that time, nevertheless, that does not constitute geneivas da'as since there were no lasting unjustified impressions. In all the actions that the Gemoro (Chulin 94B) classified as geneivas da'as, the result of the action was that the victim was left with a false impression.

For example, the Gemoro rules that if a guest comes to a person who had already contracted to sell a large amount of the wine that was in an unopened wine barrel, the host may not open that new barrel for his guest in front of him. The reason is because he will thereby leave his guest with the impression that he is a dear friend since it would seem to the guest that he opened the barrel just for him. Once one opened a barrel of wine in the time of the Gemoro, the wine began deteriorating. Thus, the guest was given the impression that his host was willing to spend much money in order to honor him, when in truth the host was not spending anything more than the cup of wine that the guest was served, because he had already contracted to sell the remaining wine.

Similarly, one may not give the impression that he is fulfilling a mitzvo when he is not, since he will be given respect that he does not deserve. For example, the Gemoro (Moeid Koton 26B, see Rashi and Nimukei Yosef) rules that one who is required to tear his garment because a close relative passed away, may not wear a garment that was previously torn to appear as if he tore it now, since he is giving the impression that he fulfilled the law when he did not.

Similarly, the Gemoro (BM 61B and see Dorash Moshe end of Beshalach) rules that one may not wear blue colored tzitsis that were not dyed blue with techeles since he will give the impression that he bought expensive techeles threads to fulfill the mitzvo of tzitzis (when it was known what techeles is) when in fact he did not do so.

In contrast, you live in the neighborhood and the storekeeper sees every day, both before and afterwards, how good a customer you are. Even if this one time you gave the impression that you are a better customer than you really are, it will not leave a permanent impression.

Even though we have explained why your actions were not geneivas da'as and even if they were, they are not prohibited, there is one more issue to consider.

The Mishna (BM 58B) rules that one who enters a store and asks the storekeeper the price of an item that he does not intend to buy violates the Biblical prohibition of ono'as devorim (causing pain to a person with his speech). Thus, maybe you violated this prohibition since you gave the impression that you might buy items that you knew in advance that you were not going to buy.

However, if we understand the reason for that Mishna's ruling, we see that certainly if there were no other customers present at the time when you refused to buy, or if there were other customers present but the reason you did not buy was clear to everyone, you did not violate this prohibition. The rationale for this prohibition is because the customer harms the storekeeper. For example, the Rashbam (Pesachim 112B) says that the harm is that while the one who did not intend to purchase held onto the items, other prospective customers could not buy them causing the storekeeper a loss of business. This does not generally apply today since almost always a store has more than one item for sale.

Rabbeinu Chananeil (ibid.) says that the storekeeper's loss is that the customer’s refusal to buy indicates to the storeowner that for some reason his merchandise is unattractive which can have negative repercussions, whereas you told him why you did not purchase these items.

Another possible loss is that other customers may refrain from buying the item because they think it is not worth the price or that something is wrong with this item. However, if no customers are present or if those who are present are aware of your reason, they will just realize the truth. If as a result they too will refrain from buying because of the halachic issue, that is desirable.

In conclusion: We have seen that there are two prohibitions that you could have violated: geneivas da'as and ono'as devorim. However, both do not apply in your situation. Geneivas da'as does not apply because there is no geneivas da'as, and even if there is geneivas da'as it is permitted to prevent the victim from sinning. There is no ono'as devorim because the storekeeper will not suffer any loss beyond what he deserves to lose.