(5776) Lying in Halacha-Midvar Sheker Tirchak

מרן הגאב"ד שליט"א

 

ויבא עשו מן השדה והוא עיף...ויאמר יעקב מכרה כיום את בכורתך לי [בראשית כה' כט-לא']

ויאמר אתה זה בני עשו ויאמר אני...ויגש...ויברכהו [בראשית כז' כד'-כז']

מדבר שקר תרחק...[שמות כג' ז']

…And Eisav came from the field and was tired…And Ya’akov said [to Eisav]: Sell, as today, your firstborn [status and right] to me [Bereishis 25:29-31]

And he [Yitzchak] said: Are you, this [one], my son Eisav? And he [Ya’akov] said “It is I”…And he [Ya’akov] approached him [Yitzchak]…And he [Yitzchak] blessed him [Ya’akov] [Bereishis 27:24-27]

You should distance yourself from a word of falsehood… [Shemos 23:7]

 

Ya’akov’s Achievement of the Brachos and the Firstborn Status

In this weeks’ Parsha we learn about Ya’akov’s feat of extracting both the firstborn status and the Brachos of Yitzchok from the grip of Eisav. In both instances Ya’akov seems to have employed tactics which fly in the face of the virtues of truth and honesty that embody the Torah. The Possuk in Mishpatim tells us to distance ourselves from a word of falsehood. In no other instance in the Torah are we told to distance ourselves from a given prohibition; we are only warned against transgressing. Moreover, we know that Hashem’s very seal is truth[1]. How was Ya’akov allowed to do what he did?

In order to understand this we have to begin a detailed Halachik analysis of the prohibition of lying.

Only in court or not?

The Gemara in Shevuos[2] derives a multitude of Halachos from the Possuk of Midvar Sheker Tirchak[3]. All of them are exclusive to the courtroom. Some examples:

  1. One who does not have anything to testify may not go up to the witness stand in order to scare the defendant into admitting guilt.[4]
  2. One may not demand from ones’ fellow double the true amount in order that when the other party admits the true amount he will be forced to take an oath in court.[5]
  3. One may not deny the loan in court in order to escape swearing, even if one will admit and pay ones’ fellow outside the court.[6]

Why is this so? Because this Possuk[7] is contextually surrounded by Pessukim which are dealing with the workings of a court.[8]

However, this approach[9] is subject to an argument amongst the Rishonim. The Ibn Ezra[10] and Rashbam[11] are indeed of the opinion that this Possuk is addressed to the courts. This also seems to be the opinion of the Rambam and the Sefer HaChinuch, because both of them quote this Possuk not as a distinct prohibition but rather in conjunction with the prohibition of a judge listening to one of the aggrieved parties when the other is not present.[12]

On the other hand, the Smag[13] counts this prohibition individually; as do the Yerei’im[14] and the Sforno[15]. The Yerei’im, however, says that the prohibition only applies when it is a lie that can lead to harming or causing damage to one’s fellow. However, if there is no damage that can result from the lie then it is only a virtue, not a prohibition.

Two Levels of Mitzvos

There seems to be a difficulty in the opinion of the Sefer HaChinuch. On one hand, we brought above that he seems to be of the opinion that lying is only prohibited within court. However, this seems to be contradicted from the following two sources in Sefer HaChinuch:

Firstly, in the end of the prohibition against the judge’s listening to one of the aggrieved parties’ arguments without the presence of the other party[16] the Chinuch says that although women are not included in the body of this prohibition since they may not judge, they are prohibited from lying just as men. Apparently the Chinuch is of the opinion that lying is indeed prohibited even outside of court.

Secondly, in the prohibition against violating one’s vows[17] the Sefer HaChinuch says that regardless of the nature of the vow that one makes one is forbidden from speaking falsely. As above, this proves that the Chinuch holds that lying is forbidden even outside of court.

We can resolve this seeming contradiction with the following fundamental idea:

As I have expounded in Minchas Osher[18] there are many Mitzvos which have their fundamental, base body, and their secondary implications which is the clear indirect will of Hashem. Here too, the Chinuch is of the opinion that the main prohibition against lying is only in court. However, the general application drawn from the specific is to distance oneself from falsehood in all scenarios.

A similar idea is to be found regarding the prohibition of inflicting pain on any creature[19]. Although the Gemara clearly states that this is prohibited from Torah law[20] it is not learned from any clear statement in the Torah, rather it is derived from stories and other incidents. It is not part of the 613, yet it is equally binding. This is the same principle, that sometimes things are prohibited due to the fact that we know that it is Hashem’s will, even if it is not a clear and separate Mitzva.

Halachik Difference between the two Levels

According to this understanding one may wonder whether there are any practical differences between these two categories. Indeed there are. Let us examine one of them:

In the Gemara in Kesubos[21] we find what seems to be a strange dialogue between Beis Shammai and Beis Hillel. Beis Shammai says that one should only praise the bride to the groom according to her actual appearance. Beis Hillel say that regardless of her real appearance one should praise her to the groom. Beis Shammai argued that if she is ugly then praising her would contravene Midvar Sheker Tirchak. Beis Hillel argued back that if one made a bad choice in their purchase one’s fellow should certainly not deride one for it. What is Beis Hillel’s response to Beis Shammai’s proof from Midvar Sheker Tirchak? If it’s prohibited then it’s absolute!

Apparently, since this is outside of Beis Din we are dealing with the secondary level of the Mitzvah. It is for this reason that Beis Hillel said that in this case it would seem that Hashem’s will is that one should lie to the groom.

So the general principle that emerges is that when dealing with this secondary level of a Mitzvah it is subject to the situation at hand to determine the manner of application.

Let us see five other examples which illustrate this principle.

  1. The Gemara in Yevamos[22] says that one may lie in order to preserve peace. An example of this is that which Hashem left out Sarah’s negative words about Avraham when He spoke to Avraham.[23]
  2. The Gemara in Bava Metzia[24] says that one may lie about whether they know a Masechta. The Gemara also allows for one to lie about his host in order that people don’t try to take advantage of him.
  3. The Gemara in Nedarim[25] brings the story of the terrible poverty of Rebbe Akiva and Rochel. Eliyohu HaNavi came to them disguised as a pauper and requested that they give him straw for his wife who had just given birth. Eliyahu at that time was really an angel. He did not have a wife, nor did he have a child. Even so, Eliyahu lied in order to comfort Rebbe Akiva that there are others who are also suffering, possibly even more than he.
  4. The Gemara in Pesachim[26] says that one who is convinced of a certain Halacha, but is afraid that others will not accept his ruling, may say that one heard this ruling from a certain respected sage even if that sage never said it.
  5. The Gemara in Sanhedrin[27] says that Rebbe once came to give his Shiur and smelled garlic. Rebbe requested that the culprit should leave the room. Immediately, Rebbe Chiya, Rebbe’s prime disciple, got up and left the room. Once Rebbe Chiya left, many other people walked out too. At a later point Rebbe Chiya related that he did not eat garlic, rather he got up in order to give cover for the one who did eat and would’ve been humiliated publicly.

From all these examples we see that the prohibition against lying outside of court is not an absolute prohibition; rather it is a general attitude and virtue. Consequently, there may be other virtues and morals which override lying in certain instances.

Within Court-Closer Definitions

Regarding the Halachos which are brought in Shevuos[28] the Chavos Ya’ir[29] writes that they are non-binding and are the province of those who want to go beyond the letter of the law. However, the Shach[30] writes that they are absolutely binding.

In a related vein: The Shulchan Aruch[31] writes that one may not pressure one’s fellow into compromising if one knows that one is obligated to pay the full amount. The Tumim[32] comments that if one knows that this person owes one money from an old unpaid loan one may pressure the other into a compromise. The Nesivos[33] agrees to this ruling but adds that one must be very careful not to actually lie in the court. This is in accordance with our earlier conclusion; that lying in court is strictly prohibited under all circumstances.

There three cases regarding lying in court which I would like to mention.

The Tumim[34] quotes the Shiltei Giborim that if one has no intention of swearing then one may not say that he would be willing to swear in order to frighten the other party. This is difficult to understand. Why should I lose out because the other party is a swindler? If this is my only recourse to scare him off why shouldn’t it be permitted?[35] Rebbe Akiva Eiger says that it’s based off Rabbeinu Yonah[36]. But Rabbeinu Yonah only forbids one to declare that he is willing to swear when one knows that one would be swearing falsely! It seems to me that this approach of the Shiltei Gibborim is going too far.

The Shulchan Aruch[37] says that one may not give testimony with another witness whom one knows is invalidated for bearing witness, even though one knows that one’s testimony is absolutely true. The Shach[38] argues on this and gives a new interpretation of the Gemara. To me it seems clear that one should not be able to cause the court to give an incorrect ruling based on one’s testimony.

A third illustration is that the Tumim[39] quotes in the name of the Chavos Ya’ir that if one is invalid to testify, yet knows that they saw an event happened, and Beis Din is not aware of his invalid status: If one is invalid Rabbinicaly then they should testify. If it is from Torah law then they should not testify. This seems very difficult. It is at least as bad as going up to the witness stand without testimony just in order to frighten the witness[40]. A fortiori in this case.

However there is one exception to this rule. The Gemara in Kesubos[41] prohibits one from throwing away one’s signature, because another person may find it and forge an IOU. The Ritvah[42] asks that it would be useless because one could say that he paid up the loan. This would seem problematic. How can one lie in court? We see from here that against a swindler it would be permitted, as the Possuk in Tehillim[43] tells us “עם עקש תתפתל-with a crooked person act crookedly.” This is in line with a famous principle laid down by the Sefer HaChinuch.[44] One has complete right to respond to another’s verbal abuse. We are not expected to “turn the other cheek” when others are abusing us.

Lying-Conclusion

In court, unless one is being swindled, one is forbidden to lie or create a false impression. Outside of court, under certain specific circumstances it may be permitted.

Ya’akov’s Actions

Let us now go back to where we started. We now see that it was out of court, so it was not strictly prohibited. But what was the specific justification?

The answer in to be find in the Zohar HaKodosh. The Zohar[45] says that Ya’akov knew that the Brachos will only go the firstborn, and that he was the real firstborn, as the Possuk states בני בכורי ישראל-My child, My Firstborn, Yisrael.[46] Furthermore, the Zohar[47] states that Ya’akov did not get these Brachos for his own personal benefit. Rather, says the Zohar, Ya’akov got this Bracha-and two others[48]-for the benefit Bnei Yisroel throughout the generations. It is only in this merit that we left Egypt, and only through these Brachos will we be able to leave this Galus. The other, lesser Bracha which Ya’akov got from Yitzchak before fleeing[49]-that was the only Bracha which he took for himself.



[4] Rambam Hilchos Eidus 17:6

[5] Rambam Hilchos To’en Venit’an 16:9

[7] Midvar Sheker Tirchak-Shemos 23:7

[8] 23:6-Careful judging of the poor. 23:7-Careful judgement in general. 23:8-The prohibition against accepting bribes

[9] I.e that the prohibition is limited to falsehood in court

[12] Rambam Sefer HaMitzvos Lo Ta’aseh 281; Sefer HaChinuch Mitzvah 74

[15] Shemos 23:7

[18]Minchas Osher Bereishis Siman 44 Os 4

[19] See Minchas Osher Bereishis 21 Os 4 for a fuller exposition

[21]Kesubos 16b-17a

[23]Bereishis 18:13; see Rashi

[26]Pesachim 112a according to Rashi ibid

[28] Shevuos 30b-31a. We quoted some examples on page 1

[30]Choshen Mishpat Siman 75 Se’if Katan 1

[31]Choshen Mishpat Siman 12 Se’if 6

[32]Urim Vetumim Siman 12-Urim 8, Tumim 5

[33]Nesivos HaMishpat Siman 12 Se’if Katan 8

[34] [Ed. Note: I could not find this source]

[35] See last example, on next page, from Kesubos

[36]Sha’arei Teshuva Sha’ar 2 Se’if 45

[38]Choshen Mishpat 34 Se’if Katan 3

[39]Urim VeTumim Siman 28 Urim 3

[40] See page 1

[42]Kesubos 21a VeDavka Achaspa

[45] Ed. Note-I could not locate this

[46] Shemos 4:22

[47]Zohar Hakodosh Parshas Toldos, Sula ed. , pages 86-87, Ma’amarim 199-203

[49]Bereishis 28:1. [Ed. Note-This Bracha involved no trickery].