Friday, October 23, 2009

Coercion and the mitzvah of לא תחמד (do not covet)

Some people have commented that my blog posting has dropped off in recent days. That's because I am now a student again. One week of school done, week two starting up tomorrow.

Posts will continue about any and all subjects — don't you worry. Top 5 fans of the blog, and otherwise, should know that I have a West Wing post in the wings, but am waiting for Sarit to watch Season 4 Episode 1, as not to ruin it for her.

I know. What a friend, indeed.

And now back to our regularly scheduled program.

Ari pointed out that a recent podcast of Rabbi Eli Mansour — who is worth listening to for his combo Syrian-New York accent alone, let alone depth and breadth of knowledge — focused on our recent topic of choice.

When does a person cross the boundary of לא תחמד (Do not covet, found in the Decalogue of both Ex. 20 and Deut. 5)? In a case where someone manipulates another person to give him property? Is the line that one cannot transgress even thinking about manipulation, or perhaps when one begins the verbal coercion, when the individual actually gives over the property that he did not want to give?

Additionally, what are some of the practical differences between the two adjacent phrases of the tenth commandment of the Decalogue in Deut. 5, "לא תחמד" and "לא תתאוה" (do not covet and do not desire are rough translations)?

R. Mansour brings a teshuva (legal responsum) from the Ben Ish Hai (Rav Yosef Haim, 19th c. Baghdad), who brings both the position of the Rambam and the Ra"avad (Rabbi Abraham Ben David of Posquieres, 1120-1198), ultimately ruling according to the Rambam.

As you will see from R. Monsour's elucidation of the text, the issues are immediately applicable to our discussion about mandating thought, the place of transfering thought to words and then tangible action.

Immediately below is the transcript from the podcast, below that the teshuva of the Ben Ish Hai and then the sources from the Rambam and Ra"avad, which he cites.

The Transcript

The Ben Ish Hai, in Parashat Ki Tavo (17), discusses the prohibition of “Lo Tahmod” – “You shall not covet” (listen to audio recording for precise citation). He writes that one violates this prohibition by applying pressure upon his fellow to sell him his possession, such as his home or utensils. If a person desires his friend’s property, which the friend does not wish to sell, and he pressures the individual or sends people to pressure him to sell it, and the friend ultimately relents, then the buyer has violated the prohibition of “Lo Tahmod.” Even though the friend ultimately agrees to the transaction, and the buyer pays a fair price, he has violated this transgression because he applied pressure to coerce his friend to sell something he had not intended to sell. The Ben Ish Hai notes that one violates this prohibition only when the owner finally relents and proceeds with the sale.

There is a separate prohibition, the Ben Ish Hai writes, of “Lo Titaveh” (literally, “You shall not desire”), which refers to the feeling in one’s heart. A person violates “Lo Titaveh” when he begins devising a scheme to persuade his fellow to sell him the item in question. Already at that moment, one transgresses this prohibition because he begins thinking in his mind of ways to obtain the coveted object. The Ben Ish Hai emphasizes that one does not violate this prohibition if he simply wishes in his heart that the owner would agree to sell the object. The transgression is committed only when one begins devising practical strategies for convincing the owner to sell.

The Ben Ish Hai’s ruling follows the view of the Rambam, who held that one transgresses “Lo Tahmod” once the owner acquiesces and agrees, under duress, to sell. The Ra’abad, in his critique of the Rambam’s Mishneh Torah, disagrees. He maintains that to the contrary, if the owner consents to the transaction, then the buyer cannot be said to have done anything wrong. Even if the owner agrees due to pressure, the Ra’abad argues, a buyer who purchases an item with the owner’s consent does not commit any offense. Halacha, however, follows the Rambam’s position, that one indeed transgresses this prohibition by pressuring the owner to the point where he relents and agrees to sell the item which he had initially not intended to sell.

Summary: The Torah forbids pressuring somebody to sell a possession which he had not intended to sell. A person violates one prohibition the moment he begins devising a scheme to pressure the owner, and he violates another prohibition if the owner ultimately relents and agrees to sell the possession.

Text of the Ben Ish Chai, Parshat Ki Tavo, 17
בן איש חי, פרשת כי תבוא, אות י''ז

כל החומד ביתו של חבירו או כליו שאין בדעתו למכרם, והפציר בו בדברים או הרבה עליו רעים עד שמכרם לו הרי זה עובר בלאו דלא תחמוד, ואינו עובר בלאו זה אלא עד שיקח החפץ שחמד, ומשעה שנפתה לבו וחשב איך יקנה החפץ עובר בלאו דלא תתאוה כי אין תאוה אלא בלב, מיהו אם רק נתאוה בלבו שאמר הלואי שיתרצה זה למכור ואקנה ממנו אינו עובר בלאו, אבל אם חשב בלבבו לעשות המצאות של השתדלות והפצרות ה"ז עובר משעה שחשב אופני ההשתדלות וההפצרות, וכל זה להרמב"ם, אבל להראב"ד גם בכה"ג אינו עובר אא"כ חשב ליקח החפץ בעל כרחם של בעלים, אבל אם חושב איך יעשה לרצות הבעלים אינו עובר בלאו וקי"ל כרמב"ם ז"ל

Anyone that covets the house of his friend or his property (lit. utensils), and they do not have any intention of selling them, and he pleads incessantly for them or increases berating the person until he sells them, this person transgresses the negative commandment of "Do not covet" (לא תחמד) — Ex. 20:13, Deut. 5:17.

But he does not transgress this negative commandment until he takes the object that he coveted. And from the time that he gave into the temptation and thought how he would buy the object, he transgresses the negative commandment of "do not desire" (לא תתאוה) — Deut. 5:17. Because desiring only occurs in the heart (one's thoughts). However, if the individual does not have thoughts of desire (lit. desire in his heart) to do the acts of the desires, he transgresses at the very moment of the efforts and breach — and all of this is according to the Rambam.

But the Raavad (R. Abraham ben David, Provence, 12th c.) said also in any case that he does not transgress except if he thought to take the object by force from the owner (as opposed through shrewd talk). But if he thought how he would manipulate the owners, he does not transgress the negative commandment — and our law follows that of the Rambam.

The laws of the Rambam and Raavad in context

I note that the Rambam says that it is a violation of "Lo tahmod" to coerce a store owner into selling an object, but he does not say that the buyer should get the punishment of lashes, because he actually pays for the object. Yes, this is a sin, and one that is by definition illegal, but it is certainly not on the same level as outright stealing. It is not on the same level as other manifestations of transgressing "Lo Tahmod," either — though I certainly need to look further into other examples of what might constitute transgressing the commandment.

The Ra"avad finds this argument preposterous, saying that if the Rambam were serious with this declaration, which the Ra"avad find absurd in the first place, then the punishment would be lashes. He thus claims that there is no violation of Lo Tahmod if the buyer paid the worth of the object, even if the seller did not want to sell it in the first place. After all, the seller could have said no — there is no physical coercion involved. Therefore, why should the buyer be punished?

(Note, too, that thinking about coercion is not an issue for this manifestation of "lo tahmod." This is different than previous manifestations of the law that we have seen)

רמב"ם הלכות גזלה ואבדה פרק א
הלכה ט

כל החומד עבדו או אמתו או ביתו וכליו של חבירו או כל דבר שאפשר לו שיקנהו ממנו והכביד עליו ברעים והפציר בו עד שלקחו ממנו אף על פי שנתן לו דמים רבים הרי זה עובר בלא תעשה שנ' +שמות כ' ט"ז+ לא תחמד, ואין לוקין על לאו זה מפני שאין בו מעשה, ואינו עובר בלאו זה עד שיקח החפץ שחמד, כענין שנ' +דברים ז' כ"ה+ לא תחמד כסף וזהב עליהם ולקחת לך חימוד שיש בו מעשה. +/השגת הראב"ד/ כל החומד עבדו או אמתו וכו' אע"פ שנתן לו דמים יקרים. א"א ולא אמר רוצה אני. /השגת הראב"ד/ ואין לוקין על לאו זה שאין בו מעשה. א"א לא ראיתי דבר תמה גדול מזה והיכן מעשה גדול מנטילת החפץ אבל היה לו לומר מפני שהוא חייב בתשלומין שהרי הוא כגזלן שחייב להשיב את הגזלה ולפיכך אינו לוקה וגם זה חייב להשיב את החפץ לבעליו

Rambam Laws of Theft and Lost Objects, 1:9

Anyone that covets the slave, house, utensils, or anything else that it is possible to purchase from him (the seller) and he (the buyer) aggravates the individual, pleading incessantly for the object until he gives it to him — even though the buyer gives a great sum of money for the object, this person transgresses the negative commandment of "Lo Tahmod".

(Yet) we do not give him (the court-sanctioned) lashes as a punishment because there is no specific action involved (ie. it is a violation, even though the "coerced seller" could have said no, and there was money in the transaction). The buyer does not transgress the commandment until he takes the object that he coveted.

Such is the case (where lashes would be sanctioned, however,) in Deut. 7:25, "You shall consign the images of their gods to the fire; you shall not covet the silver and gold on them and keep it for yourselves, lest you be ensnared thereby; for that is abhorrent to YHVH your God."

Gloss of Ra"avad: Any person that covets the slave, etc...(from above).

Despite that he gave him valuable money.

Gloss: And the person does not receive lashes for a negative commandment because there is no direct action.

I have never seen such an absurd case, and why is it such a big deal to give up the object? (my translation accentuated here). The Rambam should have said (if he were truly serious about this being a case of "lo tahmod") that the buyer is required to to return the object's value, for he is like a thief who is required to return the object itself. Therefore, he does not receive the punishment of lashes, because he is required to return the object to its owner.

No comments:

Post a Comment