Facilitating Payments – Are They Bribes?

Each week Rabbi Yoel Domb writes about issues of business ethics related to the Torah portion of the week.

“Do not take bribes” (Devarim 16:19)

It is the custom in many cultures to give facilitating payments as a way of obtaining business from clients. Some of these payments are made as tips or gifts to government officials in order to expedite clearance of shipments or documents. Other forms of bribery involve the appointment of agents who can facilitate sales in a non-routine manner due to their government connections, and the payment of large commissions to these agents. Many of these payments are demanded as prerequisites for doing business or participating in tenders in a certain locale, so that even an honest company must resort to them in order to promote its business interests. Does this constitute bribery which is forbidden by the Torah?

The biblical prohibition against receiving bribes applies to a judge who is sitting in judgment and not to an individual. Thus, there is no reason why I cannot give a private citizen a free gift in order to persuade him to buy my product, since he is not judging anyone but himself. However, many authorities do extend the prohibition to publicly elected officials, who have to decide issues of public concern. Rabbi Yomtov Lipman Heller writes “Even publicly elected officials who are not coming to decide Torah-related issues must also beware of receiving gifts for their services”.(Pilpula Charifta ,Sanhedrin chap.3) The Rema, Rabbi Moshe Isserles, even equates politically appointed leaders and judges, since both are making decisions which demand total objectivity. (Choshen Mishpat 37)

Accordingly, a government representative who bases his decision as to what to purchase on the size or content of bribe he receives is guilty of bribery and it should be forbidden to give him such a bribe, as this is akin to “placing a stumbling block before the blind” (Vayikra 19:14). However, if the official’s only job is to determine which offers fulfill the criteria for being included in the tender, and has no authority to decide which offer will be accepted, it may be permitted to give him a commission in order to be considered with the other offers.

This actually raises another question: is it considered bribery when I am only doing it in order to have a fair chance of success and not in order to tip the scales in my favor? In this case I am not causing the judge to transgress and may actually be stopping him from sinning by restoring the equilibrium between the sides. On the other hand, I am legitimating and abetting his practice of taking bribes by my willingness to play along with his rules. For this reason, a prominent rabbinic authority forbade giving this kind of bribe, because even where one is not actually placing a stumbling block (as in the case when the judge anyway takes bribes), one is abetting evil behavior and this is forbidden. ( Birkei Yosef, Choshen Mishpat 9:3).

However, this is not a universally accepted ruling, since the end result is still a flawed and unfair judgment. Rabbi Yair Chaim Bachrach suggests that the unique stringency of Jewish law, which does not allow bribing a judge even to reach a true conclusion, may not apply in a secular setting. Thus, if a Jew knows that he has been wrongfully accused and he has the ability to gain a fair trial by giving a bribe (and not to obtain an unfair advantage), he may be allowed to give a bribe to a gentile judge. Even though the judge is forbidden to receive any bribe, the giver has not sinned if his intention was only to correct an inherent bias against him. Interestingly enough, Rabbi Bachrach wishes to prove this from the Torah’s emphasis on taking bribes and omission of the topic of giving bribes. (Chavot Yair 136).

The above analysis presupposes that if a judge receives the same sum or favor from both sides, he will then judge them without bias. Rabbi Menachem Hameiri does not accept this. He maintains that if a judge receives bribes from both sides he will be more inclined to act as an arbitrator between the sides and not to discover who is right or wrong. For this reason the Torah forbade even accepting equal payments from both sides. (Meiri does not deal with the question of gentile courts).

There are two other considerations which should be taken into account here. If a Jew gives bribes he is in danger of desecrating G-d’s name, since bribery is forbidden by all religions and legal systems, and if it were discovered that a Jew gave bribes, his entire spiritual goal would be subverted. A Jew is supposed to represent G-d by acting virtuously and honestly, and if he acts otherwise he disgraces G-d as well as himself.

Moreover, a Jew who engages in shady pursuits in order to support himself is acting in a way which contradicts the core belief that G-d provides an honest living for all living creatures. Three times a day we affirm that “all eyes wait upon You, and You grant them their sustenance in due season”. If we truly believe that G-d is the source of our livelihood there is no reason for us to dabble in occupations which may cause us to sin. Bribery should have no place in our businesses, and we will still succeed in supporting ourselves while bringing credit to our status as G-d’s chosen nation.

Source: Tehumin, Vol.5, p.333

This column presents general principles for approaching business ethics topics. For specific guidelines, please refer to a halachic authority.

Rabbi Yoel Domb is a graduate of JCT and a member of the faculty of the JCT Bet Midrash. He was awarded a fellowship from the Center for Business Ethics for the academic year 2000-2001. He is currently researching topics of business ethics in Jewish Law and is preparing a curriculum to facilitate the teaching of these topics in Rabbinical seminaries (Yeshivot).