Editor's note: The following is an edited transcript of a speech delivered by Rabbi Wieder in the Main Beis Medrash on Wednesday night, October 23rd. The makeup of the initial audience and the oral nature of the discourse enabled Rabbi Wieder to use many Hebrew locutions in place of standard written English. To make the sermon accessible to a wider audience, we have clarified terms whose meaning are not evident from the immediate context in the glossary located at the bottom of this page. The Commentator thanks Menachem Lazar for his transcribing and editing efforts.

The Ramban, commenting on this weeks' parsha on Avraham Avinu's comment, "vgam omna achosi bas avi hi - and besides, she is indeed my sister, my father's daughter", makes an interesting comment.  He writes:  "I don't understand what kind of excuse this is.  Even if it were true that Sarah was in fact his sister and his wife, and when they were interested in a single woman he said "She's my sister" in order to deceive them, he had already sinned by misleading them and entrapping them so they would commit an aveira, and at that point it didn't matter whether what he said was literally true or whether it was literally false, [either way it was a sin] (Breishis 20/12)."

The Ramban goes on to explain Avraham Avinu's actions as a result of the potential danger that faced him.  But absent the danger, despite the fact that what he said was true, it would have been the equivalent of sheker [falsehood].  The comment of the Ramban certainly echoes a well-known halacha that the Gemara quotes in perek gid hanashe (Chulin 94b):"D'amar shmu'el asur lignov da'as habriyose, v'afilu da'ato shel oved kochavim - Said Shmuel: It is forbidden to deceive, literally to steal the mind of, people, even an idolater."

What is the definition of gneivas daas exactly?  The Gemara gives a number of examples, but they all boil down to attempting, through creating a false impression, to ingratiate one's self with someone else, presumably in the hope of gaining some favor or some future benefit.  The Ritva (ibid, s.v. kd'amar) comments that this in fact is an issur d'oraisa of lo signovu [Thou shall not steal].

What exactly is the standard of deception, of gneivas daas?  So the Gemara (ibid.) quotes the following, very interesting, story: Mar Zutra was traveling from one place to another and Rava and Rav Safra were traveling in the opposite direction and they ran into each other.  Mar Zutra was feeling very good about himself, thinking that they came to honor him.  He said to them, "You didn't have to come so far to greet me, it was very nice of you but it wasn't necessary."  R' Safra responded, "Oh, we weren't coming to out to greet you, we didn't even know you were coming this way, but had we known, certainly we would have come."   Rava gives R' Safra a patch and says, "Why did you say that?  You made him feel bad!"  R' Safra responded, "We're deceiving him, because he thinks that we came to honor him; he's going to think that we're such good friends, he's going to do us favors in the future."  Rava responded to R' Safra "[We weren't deceiving him,] he was deceiving himself."

So apparently there is a difference between a situation where one is responsible for deceiving someone else and when someone else is responsible for allowing himself to be deceived. 

What exactly is the standard of deception?  There is a three-way machlokes [dispute] among the rishonim [medieval commentators].  Rashi's opinion (s.v. eehu), which is not accepted l'halacha , on one extreme, is that in order to constitute gneivas da'as one has to engage in some type of verbal deception; one has to say something that may be perhaps literally true but is misleading.  That opinion is not accepted by the [Jewish legal code] Shulchan Aruch in Choshen Mishpat. 

On the other extreme is the opinion of Rabeinu Gershom, who is quoted on the side of the Gemara (s.v. eehu).  Rabbeinu Gershom, whose explanation is a little bit difficult to read into the story, claims that gneivas da'as exists anytime there is deception.  Even if a person does nothing to contribute to another's deception, gneivas da'as occurs once it's clear that another party has been deceived and the deceiver does nothing to correct the misimpression. How does he explain the statement ihu dka mati anafshei [he was deceiving himself]?  So Rabbeinu Gershom says that what Rava was telling R' Safra was that Mar Zutra knew that we weren't coming out to greet him, he was just saying that to flatter himself, so he really knew.  Had he not known, we would have been obligated to clarify, but since he really knew, you didn't have to "pop his balloon". 

That opinion is also not quoted in the Shulchan Aruch.  The opinion that is accepted, which is not precise, but usually we can figure out what it means, is the opinion of the Baalei Hatosfos, who explain that in order to violate gneivas da'as, in order for something to constitute gneivas da'as, it's not necessary to actually say something, to verbally create a misleading impression, but anytime a reasonable person would interpret an action in a certain fashion, that too would constitute gneivas daas; therefore if a person is misled under those circumstances we are under the obligation to clarify the misconception. 

Interestingly, there is a Yerushalmi, which I guess is relevant to many bnei yeshiva, which seems to point in the direction of Rabeinu Gershom's opinion.  The Yerushalmi is found at the end of Meseches Shviis and also in Makos in the second perek: Said R' Yoseh - If a person who has learned only one mesechta [tractate], he's a baki [expert] in meseches Megilah, and he goes to a certain place and they think he's a bigger expert than he is, they think he knows Megilah and Ta'anis, so then he must tell them, "I only know one mesechta, you don't have to honor me as if I know two."

And from the Yerushalmi it doesn't sound like he did anything to mislead them. So that would seem to point in the direction of Rabeinu Gershom's opinion, but nonetheless the Shulchan Aruch in Choshen Mishpat decides like the opinion of the Baalei Hatosfos. 

This issur [prohibition] is particularly significant, as I think all the bnei hayeshiva [yeshiva students] can understand, in our context, in the context of cheating and plagiarism.  Cheating and plagiarism, either cheating on an exam or submitting work that does not belong to, that is not authored by, the person who submits it and puts his name on the top, are very obvious forms of gneivas da'as.  The person is submitting work as if it's his own, as if he deserves a certain grade, as if he deserves certain credit; and the same thing is true regarding an exam on which he produces answers which were not his own answers, he's not entitled to that credit, he's not entitled to that impression of what a wonderful student he is, he's not entitled to that grade.  This is a classic form of gneivas da'as and it's an issur d'oraisa [Torah prohibition]. 

R' Moshe Feinstein in his tshuvos [responsa], in perhaps an astounding tshuva, (it is almost a chilul Hashem [desecration of God's name] that it had to be written, in fact R' Moshe wrote something in the tshuva I think to dispel this chilul Hashem) makes the point that gneivas da'as is often not just gneivas da'as.  We're dealing with a question - there was a rumor that there were some yeshiva bochrim [students] who were stealing the regents so that they wouldn't have to waste the time studying for it, and this way they could learn more.  That someone had to write a tshuva to dispel this notion [that this might be permissible] is a little bit frightening.  R' Moshe writes at the end of the tshuva that he doesn't believe that these rumors are true.  He doesn't believe that the bnei hayeshiva were actually stealing the regents, he thinks that people who hate bnei torah are the ones who made these up to discredit them. 

Rabosai, you and I both know, everyone in this room has been to high school, many of you locally, we all know that in fact people didn't make these up.  In fact, R' Moshe probably also knew that people didn't make these things up.  But, how it's yitachen [possible], that someone could say such thing, that it's mutar [permissible] to steal, that it's mutar to steal in order to be able to learn more?!  And R' Moshe goes further in his tshuva.  He writes that if a person steals an exam, if a person cheats on an exam, and now because he cheated he got a better grade, and he got into, let's say, a medical school, and someone else didn't, and now he's a doctor, every penny that he earns is gneivas mamone [theft], not only gneivas da'as but also gneivas mamone; every single penny that the person earns. 

I don't think I need to stand up here and define what constitutes cheating and plagiarism.  Unfortunately there are many students in the college, some who unfortunately perhaps are in this room, who know much better than I do, all the mechanisms and all the machinations that are involved in cheating and plagiarism.  But if someone is msupak [uncertain], particularly in the context of what plagiarism is, there's a whole book that the college publishes (which is also a bizayone [embarrassment], that they have to publish it) to tell us what plagiarism is.  I think we all understand that when we take work that is not ours and we submit it in our name, that's gneivas da'as. 

One of my talmidim [students] told me, I couldn't believe such a thing, that some of the yeshiva bachurim were klering a chakira [reasoning] as follows: there's a din by gneivas mamone that shinui is koneh, not that it's mutar to steal and be mshaneh, but that shinui is koneh.  They were klering a chakira that if I took someone else's paper and I changed a few words, is shinui then koneh?  I've never heard anything so ridiculous!  Shinui is koneh by a cheftzah shel gneiva, there's no cheftzah shel gneivah by gnevias da'as! 

I know that there are those people who will taina [claim] that they really want to learn, that's what they want to do all day, all the time, and they would rather not be in college for whatever reasons.  Now for someone who has been accused, and I'll accept the accusation of being an advocate of Torah U'Madda, I will state for the record that there is no issur d'oraisa in not attending college.  There is no issur d'oraisa, no issur d'rabanan either.  But if one is going to attend college, then it's still asur to be gonev da'as.  And I might add that there's no such thing as being forced.  Many of you have learned the sugya of hafka'as kidushin and you know that talyuha vzavin zvinei zvina [a forced sale is legally binding].  The argument that I have to go to college because my parents are making me do it; halacha doesn't accept that.  You can go out and earn your own parnasa [salary] without going to college.  The threat of having money withheld, that's not called anus [coerced] in halacha.

What I've said until now rabosai, I think are dvarim pshutim, leis man dpalig; it's very, very clear.  But I think there are some other issues that are not as clear, and there's a dangerous tendency that people have to make rationalizations and to cut at the margins of gneivas da'as.  I would advise you to heed the words of the Rambam in Hilchose Dei'ose (2/6).  He writes:  "One is not allowed to engage in behavior with slipperiness and deceptiveness.  And one mustn't say one thing with the mouth and mean another in the heart...and it is forbidden to steal the minds of people, even of a non-Jew." 

At the end of the halacha he writes "and even one word of deception."  Even one word!  One word of deception and of gneivas da'as is asur!  "Rather [one must maintain] an honest tongue, a straight heart, and a heart pure from all deception and lying."

I know that there are certain actions that yeshiva bochrim always ask about, legitimately so, that are not in the parsha of cheating.  Getting old exams is not cheating.  However, despite the fact that there are things that are dvarim hamutarim [permitted], that should not become an excuse to cross the line into things that are dvarim ha'asurim[forbidden] . 

There are also unfortunately bochrim who have run around saying things which I consider to be absolute lashon hara [slander] in the name of some rebbeim, claiming that they said it was mutar [permissible] to cheat for talmud torah [Torah study], and all sorts of things cutting into corners.  I've investigated the matter and have not been able to find a single rebbe who claims that it's mutar to cheat.  When you hear such a taana [claim] that's advanced, it's because someone wants to justify his own actions.  I hope I speak and I think I speak for all the rebbeim in this yeshiva [when I say] that cheating is asur. 

I would go one step further.  Lu ytzuyar [were it conceivable] that a person would make a tremendous error, and delude himself into thinking that cheating is in fact somehow mutar, chas vshalom [God forbid], but supposing that it happens for the moment, even if one were to reason that perhaps halachically it is mutar, there is a further consideration. The Smag (mitzvas aseih 74), when he talks about hashavas aveida [returning lost items], he mentions the fact that the Gemara says that the aveida of an akum [gentile] is mutar.  One is not obligated to return the aveida of a gentile, except in cases of chilul Hashem.  After he describes the halacha, he makes a very striking comment.  He writes:  I have already spoken to the Jews of Spain, now that the galus [exile] has dragged on so long, we should separate ourselves from the nonsense of the world, and seize Hakadosh Baruch Hu's seal of truth, and a person should not lie, not to a Jew, not to gentiles, and not deceive them in any way. Even in that which is permitted one should sanctify one's self, as the pasuk says (Zephania 3/13), "The remnant of Israel should practice no inequity and speak no deception, and there should not be found in their mouths a deceitful tongue."  

Now why is this so important that we need to be extra machmir [stringent] when it comes to issues of sheker, even when the halacha permits keeping the lost object of a non-Jew?  He answers: When Hakadosh Baruch Hu comes to redeem us, the gentile nations will say that He is fair because this is a nation of tzadikim [righteous people], because they are people of truth, and a law of truth is in their mouths.  But, if one is to engage in dishonesty with the gentiles, even in cases that are permitted, they will say, this is the nation that Hakadosh Baruch Hu chose as His nation?!  A nation of liars and thieves?!

There is a bigger problem that exists.  It exists not just in the yeshiva, but I'm addressing myself to the bnei hayeshiva.  It's larger than cheating; it's the result of the cheating and that is chilul Hashem.  There is a reputation that goes around, that there's a lot of cheating that goes on in this institution.  And there is a reputation that there are yeshiva bochrim that do it as well because they've been encouraged to cheat so they can learn more. 

Gneiva, there's a machlokes hatanaim whether or not gneiva is a yehareg v'al ya'avor [a commandant about which we are required to give up our lives before violating].  But everyone agrees that chilul Hashem is yehareg v'al ya'avor.  There's leis man dpalig on this issue.  And every one of us is responsible when there is a climate that is fostered in which cheating is tolerated and where people look the other way or people even sometimes think that it's just fine.  Echad shogeg v'echad meizid bchilul Hashem - both the willing sinner and the mistaken transgressor are liable for desecration of His name - and it makes no difference.

So I ask three things.  The first point is something on which I'm not going to elaborate.  I've spoken about it a little bit before.  It is an issue which is a little bit uncomfortable because we're all told not to tattle, and I don't want to go into the details, but I'm just going to point out one halacha.  There is a din of lo sa'amod al dam rei'acha - one is not allowed to stand by while other people are harmed.  This does not only apply to threat to life but even threat to property. 

The Gemara in the sixth perek of Bava Kama, the beginning of perek hakones, quotes a braisa from R' Yehoshua that there are four things that a person is patur mdinei adama v'chayav bdinei shamayim.  One of those four things is hayodea edus lchaveiro v'eino mei'id lo, if you know that Reuven is a ganav and he stole from Shimon and you don't come forward and testify, yes, you're patur bdinei adam, but you're chayav bdinei shamayim.  If, theoretically, two people saw a person cheat and that person is going to get ahead by their not reporting the cheating, that's lo sa'amode al dam rei'echa; it's a davar pashut. 

Even if, however, someone can't bring himself to report the cheating, or supposing it's only an eid echad [one witness], and that becomes a much more complicated issue, at the very least there's a chiyuv [obligation] to give musar [rebuke] to that person, not only because of hocheiach tochiach es amisecha [the commandment to rebuke], because you may argue that the person is not going to listen, but even when a person is not going to listen, the Gemara in Shabbos (119b) is clear that there's an inyan [matter] of macha'ah [protest], we have to make a protest that such behavior is not acceptable, even if the person is going to spit in your face and he's not going to listen to you, you have to make a macha'ah. If you don't make a macha'ah then everyone walks around and thinks that this is just fine, and I don't think we want individuals who when we observe that they cheat to think that a ben hayeshiva, a ben torah thinks that it's mutar to cheat.  And therefore, a person is obligated, even if he can't report the person or won't report the person, to make a macha'ah, to tell the person that that is wrong and unacceptable. 

My second request - and I say this blev kaved [with a heavy heart] - is that if a person somehow cannot control his yetzer harah [evil inclination], and he has deluded himself to the point were he feels that he must come and cheat, and I know that this is a little bit radical, but I think that one has to heed the advice of the Gemara in Moed Katan.  The Gemara in Moed Katan (17a) says that if a person sees that he can't control his yetzer harah, he should go to a place where people don't recognize him, he should put on dark clothing, and then do what he needs to do, and thus avoid desecrating Hashem's name publicly.  And most of the rishonim say that it means if he's going to do the aveira [sin], do it btzina [privately]. 

Now, it's very hard to do it btzina here, but if I were to take an analogy, I would make the following recommendation.  That if you have to cheat, please first take off your yarmulka, take off your tzitzis, put them in the drawer, if you have tfillin that are exposed, cover them with a double covering, and then ya'aseh ma shlibo chafetz - do what his heart desires.  And rachmana litzlan [may God save us], on that day that some people do get dragged in front of the Academic Standards Committee, and we have frum Jews there, and non-frum Jews, and non-Jews on that committee, when you've been called in for cheating, please walk in there without your yarmulkah, please walk in without your yarmulkah, so no one should think that it's the yarmulkah, chas vshalom the yarmulkah, that gave you the rshus [permission] to cheat. 

And finally, finally, if a person, again, is ro'eh shyitzro misgaber alav [sees that his desire overwhelms him], please don't say that my rebbe said it's mutar to cheat, that I'm cheating so I can learn more.  Just say I'm cheating because I'm cheating, because I have to.  But, chas vshalom, please do not attribute it to talmud torah, please do not attribute it to the yeshiva, because there's no bigger chilul Hashem than that.  

I would conclude by reminding you that there is no mitzvah in the Torah that fundamentally is a yehareg v'al ya'avor except for chilul Hashem.  I know that we've been taught that there are three aveirose, but if you look at the Rambam in Hilchos Yesodei Hatorah, the Rambam says that the only reason that one cannot violate avodah zarah and gilui arayos and shfischus damim in order to save one's life, or to put it the other way, if one goes ahead and does such a thing to save one's life, the Rambam says you haven't violated avodah zarah, you haven't violated gilui arayos, you haven't violated shfichus damim.  What you have violated is vchilalta es shem Hashem elokecha - you have violated chilul Hashem.  On the other aveiros you are onus, onus rachmana patrei.  However, with regards to chilul Hashem, there is no such thing as a ta'anas ones.

Our responsibility as bnei torah is to create a kiddush Hashem and not chas v'shalom a chilul Hashem.  The description of chilul Hashem in the Gemara in Yoma (86a) is as follows: Someone who engages in talmud Torah but he doesn't deal honestly in commerce, and he speaks unpleasantly with people, what do people say about him?  Woe to that person who has studies Torah, woe to his father who taught him Torah, woe to his teacher who has taught him Torah.  That person who has learnt Torah, how crooked are his ways, how disgusting are his paths, to him the verse refers when it says (Ezekiel 36/20): "These are His people, he will expel them from His land."

What we strive for every day, in everything that we do, whether it's in the beis hamedrash or outside the beis hamedrash, is a kiddush Hashem; that people should look and say this is the way Bnei Torah behave.  And in Abaye's words, in the Gemara's words in Yoma, "And you should love the Lord your God" - that means that Heaven's name should become beloved through you, that you should engage in learning Torah and deal honestly in business.  What do people say about such a person?  Happy is his father who taught him Torah, happy is his teacher who taught him Torah, woe to those who didn't learn Torah.  This person, how pleasant are his ways, how sweet are his actions.  About him the verse says (Isaiah 49/3): "You, Israel, are my servant through whom I will be glorified."

 

Glossary

People

Baalei Hatosfos - a group of 12^th and 13^th century talmudists.  Many of these people were either grandchildren or students of Rashi.

R' Moshe Feinstein - (1895-1986) - European-born leader of the American-Jewish community, he was also the leading halachic authority of his time.

Rabeinu Gershom (960-1028) - early leader of German Jewry.  Wrote a number of decrees, many binding to this day.

Ramban - Rabbi Moshe ben Nachman (1194-1270).  The Ramban, living in Christian Spain, was best known for his commentaries on the Bible and the Talmud.

Rashi - Rabbi Shlomo ben Israel (1040-1105).  The commentaries on the Bible and Talmud of this eleventh century French rabbi are indispensable for both the beginner and advanced student.

Ritva - Rabbi Yomtov ben Avraham Asevilli (1250-1330) born in Seville, was a leading talmudist of his time.

Smag - R' Moses of Caucy, named after his important work which listed the 613 commandments.

Books

Bava Kama - the tractate that deals primarily with torts

Choshen Mishpat - the part of Shulchan Aruch which deals primarily with civil law including torts, property disputes, and the judicial system.

Hilchose Dei'ose - the section of Maimonides' code of law which discusses beliefs and moral conduct

Hilchose Yesodei Hatorah - section in the Rambam's code of law which discusses fundamental beliefs of Judaism

Makkos - the tractate dealing primarily with the laws of false testimony, cities of exile, and corporeal punishment.

Moed Katan - the tractate the deals primarily with the laws of the intermediate days of the holidays

Shabbos - the tractate that deals primarily with the laws of Sabbath

Shulchan Aruch - this widely-accepted Code of Jewish Law was written by R' Yosef Caro in the late fifteenth century.  It deals with both religious and civil law.

Shviis - the tractate dealing primarily with the laws of the sabbatical year

Yerushalmi - or the Palestinian Talmud, a predecessor to the Babylonian Talmud, this commentary on the Mishna oral law was composed in Israel during the fifth century C.E.

Yoma - the tractate which deals primarily with the laws and rituals of the Day of Atonement

 

Terms

 

akum - idolater

aveida - lost object

aveira, aveirose - sin(s)

avodah zarah - idolatry

baki - expert

beis hamedrash - house of study

ben Torah, bnei Torah - literally son(s) of Torah, those who study Torah

bizayone - disgrace

ben hayeshiva, bnei yeshiva, bnei hayeshiva - students of the yeshiva; literally: children of the yeshiva

braisa - statement of rabbi who live in the first or second century C.E.

btzina - privately

chas vshalom - Heaven forbid

cheftzah shel gneiva - a physical object that is stolen

chilul Hashem - desecration of G-d's name

chiyuv - responsibility

davar pashut, dvarim pshutim - simple matter(s)

din - law

dvarim ha'asuriim - forbidden matter

dvarim hamutarim - permissible matter

frum - observant

galus - exile

ganav - thief

gilui arayos - illicit relations

gneiva - theft

gneivas da'as - deception; literally stealing the mind

gneivas mamone - stealing money

hafka'as kidushin - cases when marriage is not legally binding

Hakadosh Baruch Hu - the Holy one, blessed be He

halacha - law

hashavas aveidah - the obligation to return a lost object

inyan - issue

issur d'oraisa - biblical prohibition

issur d'rabanan - rabbinical prohibition

klering a chakira - reasoning

l'halacha - in law

lashon hara - gossip

leis man dpalig - there is no opposing view

lu ytzuyar - were it the case

macha'ah - protest

machlokes - debate

machlokes hatanaim - argument between rabbis of the first and second centuries C.E.

machmir - scrupulous

meseches, mesechta - tractate

mitzvah - commandment

mshaneh - change it

msupak - in doubt

musar - rebuke

mutar - permitted

onus - coercion, forced

onus rachmana patrei - the law exempts transgressions committed under coercion

parnasa - livelihood

parsha (1) - weekly Torah portion

parsha (2) - realm

pasuk - verse

patch - a light smack

patur mdinei adama vchayav bdinei shamayim - exempt in human courts though liable in the Heavenly one

perek - chapter

perek gid hanashe - the seventh chapter of tractate Chulin, which deals mostly with ritual slaughter

rabosai - ladies and gentleman

rachmana litzlan - G-d should save us from such

rebbi, rebbeim -  teacher(s)

rishonim - the group of early commentators on the Talmud, usually referring to those who lived between the eleventh and fifteenth centuries

rshus - permission, license

sheker - dishonesty

shfischus damim - murder

sugya - topic

taana - claim

talmid, talmidim - student(s)

talmud Torah - studying Torah

talyuha vzavin zvinei zvina - a forced sale is legally binding

tfillin - phylacteries

tshuva, tshuvose - responsum, responsa

tzadik, tzadikim - righteous person(s)

tzitzis - four-cornered garment

yaharog v'al ya'avor - commandments about which we are directed to rather die than transgress.  Most prominent among them are murder, idolatry, and illicit relations.

Yerushalayim - Jerusalem

yeshiva bochrim - students who learn Torah, not exclusively from Yeshiva University

yetzer harah - evil inclination