Some acts are clearly forms of theft, but what about the borderline cases? An expert applies Jewish law on theft to some workplace scenarios and shows its theological underpinnings. Reprinted with permission from The Challenge of Wealth: A Jewish Perspective on Earning and Spending Money (Jason Aronson).
“Who is a thief? One who stealthily takes money [or an asset] that belongs to another without the knowledge [or consent] of the owner; for example, he who puts his hand into the pocket of another and takes out his money, without the owner being aware of it. However, one who publicly takes [another’s property] by force, and against the owner’s will, is not a thief but a gazlan, a robber” (Maimonides, Mishneh Torah, Laws of Theft 1:3,4). In accordance with this definition, Maimonides includes within the laws of theft also fraud through weights and measures, as well as forbidding the buying of stolen goods.
In almost all countries today, legislation exists to prosecute thieves and to prevent theft. Similarly, weights and measures are regulated in many countries by public authorities, and infractions carry penalties, thus protecting society against abuse. The halakhic [Jewish legal] rules, therefore, might seem superfluous were it not for the insistence that theft refers to stealthy and secret acts. Most economic crimes are conducted in exactly this atmosphere.
A whole area of accepted business practices exists within which the distinction between moral and immoral acts is blurred. Gray areas develop within which the individual operates without being able to discuss openly what forms of behavior are permissible. In this secretive atmosphere, a pattern of underground anti-ethical actions is easily developed. Here the rabbinic discussion of theft, stealth, and secretive crimes is a pertinent one as it creates a moral climate within which people are able to operate ethically.
Perhaps two examples will suffice to make clear the halakhic distinction between permissible and nonpermissible actions that may be considered to be theft.
Is Profit on Per Diem Theft?
An employee receives a per diem [daily expense allowance] for work done away from his home base. If he is willing and able to manage on less, using cheaper transport, board, and lodging, does keeping the excess constitute theft?
Perhaps a relevant halakhic attitude may be seen in the talmudic discussion concerning the housekeeping money given to a woman by her husband. “If the husband gave her a sum of money with which to conduct the affairs of the home, and she is thrifty and careful she may keep the difference [between her actual costs and the sum given]. If, however, she is to be reimbursed for money spent on the home, she may obtain only that which she actually spent” (Babylonian Talmud, Ketubot 65b, codified as law in the Shulhan Arukh).
Commission or Kickback ? The Problem of Bribery
Reuven, the buying agent for Shimon, is offered a 10 percent commission by Levi if he will purchase goods from him. Whether acceptance of this commission should be considered theft or not will depend on the effect that the actions of Reuven have on the business of Shimon. In those cases where Reuven is buying inferior goods or paying above market prices, then it definitely constitutes theft. However, it may well be that Shimon suffers no loss, since the goods and prices are the same as those offered by other suppliers. In this case, Reuven would have to pay half of the commission to Shimon, since one may not have a benefit from someone else’s money. After all it is Reuven’s position as buying agent for Shimon, with all the financial and commercial power that flows from it, that enables him to receive the commission.
Levi’s role in this case should not be overlooked. The commission he is offering is an elegant euphemism for bribery, and is a simple variation of an important moral problem in the international trade of the developed countries with states in South America, Asia, and Africa. The United States of America has passed legislation prohibiting American corporations from giving such bribes in order to make sales or obtain contracts in foreign countries, despite the fact that no such legislation exists in most other Western countries. Naturally, this places the American corporation at a distinct disadvantage, the price for a moral decision. Israel has no such legislation, but a survey by the author of exporters there showed the overwhelming majority to be in favor of enacting it.
Bribery for judges is forbidden in the Bible since “it blinds the eyes of wise.” It would seem that the purchasing agent or his equivalent actually has the status of a judge, since he adjudicates between the rival claims of various competing corporations. If this is correct, then it would be halakhically forbidden to offer such commissions. Such moral blindness affects not only the receiver but also the giver.
The legal principles involved in these and similar cases may compensate the injured party for a loss suffered from the theft, yet one wonders just how effective such principles can be in preventing such secret and hidden actions. It would seem that the spiritual dimension seen by the Rabbis in the laws of weights and measures may provide such protection.
The biblical verse in Leviticus (19:36) containing the injunction “Just weights and measures shall you have” continues, saying, “I am the Lord your God who brought you out of the Land of Egypt.”
This linkage seemed strange to the Rabbis of the Midrash, since the Exodus does not seem to be related to weights and measures, any more than any other mitzvot. They explained, “The God who distinguished between the first seed of the Egyptians [the First Born] and other Egyptian sons who were not killed in the plague [a distinction based on the most intimate and secret knowledge known only to God] shall surely punish he who soaks his weights in salt in order to cheat [in secret].”
It is this awareness of the pervading Divine knowledge that constitutes Judaism’s ultimate protection against stealth and secret theft.
When Israel Ba’al Shem Tov, the founder of Hasidism, the spiritual movement that swept eastern European Jewry from the eighteenth century on, was once riding in a coach, the driver said to him, “I am going to stop now and go and cut some oats in that field, for the horses. Please watch out and when you see somebody watching, warn me.” The Ba’al Shem Tov agreed, and the coachman reined in the horses and got down from his seat. He had barely reached the field at the side of the road when the Ba’al Shem Tov called out, “They see, they see.” Needless to say the coachman ran back, got in his seat, and started to drive away. He turned his head and seeing no one, rebuked the Ba’al Shem Tov saying, “Nobody sees, why did you call out?” The latter, pointed to heaven and said, “Indeed, One does see, One does see.”