Responsa of the Week: Morality in Advertising
A weekly series by Dr. Meir Tamari about responsa regarding business ethics issues.
In order to demonstrate the work of the halakhic system and its moral considerations regarding a variety of issues in business and economics, I will present a number of responsa drawn from the literature. These represent questions addressed either by laymen or by rabbis or communities to rabbinical authorities and their answers. They cover a period of close to 2000 years and reflect Jewish life in all the countries of the Diaspora. Even though the answers may vary and conflict with each other so that one cannot draw behavioral conclusions from them, they demonstrate Jewish thinking and values in this field.
False advertising is obviously immoral, but what about advertising that takes unfair advantage of other competitors? The most common form of such competition is the advertising of benefits or gifts to be earned by purchasing the goods or services offered. The extent of this non-price competition is only limited by the ingenuity of the seller. The halakhic problem with this form of competition is to determine whether the other non- advertising merchants have acquired a property right in their customer, in which case the advertiser is guilty of theft.
This problem was discussed in the following Mishna, which became the benchmark for all the subsequent codes and responsa on the topic throughout the ages.
“Rabbi Yehudah said that a shopkeeper may not distribute parched corn or nuts to children, (a different source adds maidservants), because he thereby accustoms them to come and buy from him. (In this way he deprives his competitors of their livelihood). The Sages permit it (the Talmud says this was because his competitors could simply offer other incentives to the customers). [Baba Metziah, Chapter 4, Mishna 12].
However, our interest here lies in the failure of the advertiser to fulfill the obligations spelled out in the advertisement. Our discussion is not concerned with defaulting on the contract or non compliance, rather it is limited to the Rabbis’ view of the spiritual damage involved in not keeping one’s word, whether given verbally or reduced to written contracts.
Furthermore, there is the element of godliness and religiosity involved in keeping one’s word. The Sifre, commenting on the biblical verse in Deuteronomy (25: 15), “just weights and measures you shall have,” interprets the Hebrew words “hen tzedek” that actually mean, “just measures,” to also represent the word “hen,” yes, saying, “let your yes be yes and your no be no.”
“A storekeeper had displayed the prices on the articles in his store. When the market price on these goods rises, may he change the prices without canceling the advertisement he had distributed or would he be guilty of a lack of faith in Divine Providence?”
“According to the ruling of the Shulchan Arukh (Choshen Mishpat, section 23, sub-section 20) when prices in the market move higher, the storekeeper may similarly raise his own prices. Here too, the storekeeper may do so. However, in this case the further question of keeping one’s word is involved. By displaying the prices in his store, he has signified his agreement to these prices, even though the agreement was made in writing (rather than verbally that is considered to be more binding). Now by changing the prices he shows himself to be lacking in trust in divine Providence (to provide him with a livelihood even if he maintains his promise of the lower price level. This is in contrast to the actions of Rabbi Safrah described in the Talmud.” (Teshuvot Bet Avi, part 4, section 185. Rabbi Yitzchak Liebes, New York, 5745- 1985)
The incident referred to by Rabbi Liebes is mentioned in the Talmud (Baba Bathra 85) as an example of one whose speech is truth. It refers to a transaction in which the contract is merely implied by the conduct of one party. Rabbi Safrah was standing in prayer when a buyer approached him to purchase his goods. When the buyer received no reaction to his offer, he raised the original offer taking the rabbi’s silence for rejection. As the prayer continued so the bidding rose, until finally Rabbi Safrah showed that he had finished praying. Hastily, the merchant counted out the coins of his last offer only to find that Rabbi Safrah returned to him the difference between that and his very first offer.
“If a person sins and behaves unfaithfully against G-d, in that he denies to his neighbor concerning that which was entrusted to him or a loan or a thing taken in violence or has oppressed his neighbor,” (Leviticus, 5:21) Rabbi Akiva asked, “Why are such actions seen as being against G-d? This is since the party that entrusted the thing in the hands of another or made them a loan, did so without a contract or without witnesses [otherwise any claims would be difficult to deny]. The only witness was therefore G-d and any denial was therefore a sin against G-d” (Torah Cohanim).
This column presents general principles for approaching business ethics topics. For specific guidelines, please refer to a halachic authority.
Dr. Meir Tamari is the former chief economist of the Office of the Governor at the Bank of Israel, and the founder of the Business Ethics Center of Jerusalem.