Until now, we have spent our time discussing the prohibition of halanah, of not paying wages on time. As serious as that is, what I hope we have seen is that the consensus of tradition seems to be that that is more about dashing the expectations of a worker who needs the funds than the actual monetary wrong that was committed. This week, we move to another wrong referenced in those same verses, that of oshek.
The Real Wrong of Withholding Wages: Oshek
Remember that in both Vayikra 19;13 and in Devarim 24;14– the verses that spoke of paying wages overnight (before they had slept with you, in the verse’s phrase) or by the end of the day (before the sun set on them)– the verse had started with the warning lo ta’ashok, a word that is obscure enough that I can’t even translate it until we discuss it further.
I can point out that the Sifra to Kedoshim, section 2, wonders whether the verb includes telling people that someone is strong, wise, or wealthy when he is not. From the verse’s connecting oshek to gezel (the next phrase in Vayikra is ve-lo tigzol), which is clearly monetary, Sifra understands that oshek, too, must be monetary. I mention it because it highlights the obscurity of the word.
So, too, Baba Metsia 111a struggles to differentiate oshek from gezel. Rav Hisda suggests that oshek is where the employer repeatedly pushes off the employee, but never absolutely refuses to pay, while gezel is when he finally repudiates the obligation. Because of a source that links oshek and another act of denying a monetary obligation, Rav Sheshet rejects Rav Hisda and says oshek must involve some denial of money.
He suggests, instead, that oshek is where the employer falsely claims he paid already, and gezel is where he refuses to pay. Abbaye objects, because the same source Rav Sheshet had cited also saw gezel as involving some denial of money. Abbaye’s view is that oshek is where the employer denies ever hiring the person, and gezel is where he claims to have paid him already.
Rava is given the last word—and in debates between Abbaye and Rava, normative practice almost always follows Rava—saying that gezel and oshek are really one and the same, the Torah listed both simply to have the person violate two prohibitions. This is a complex claim, in a few ways. First, as Tosafot notes, the Torah splits the two in other contexts as well, such as in the verse that mandates an asham gezelot, a special sacrifice for one who commits gezel or oshek and denies it under oath. Why there, Tosafot wonders, would the Torah need to split them, if they’re really the same?
It is also true that gezel, whatever it means here, has another manifestation that is clearly separate from oshek. As I hope to discuss next week, gezel most simply means that the thief takes an item from the victim openly (we will have to define “openly”). In addition, Rambam in Laws of Stealing and Lost Objects 1;4 defines oshek as situations where the thief originally came into possession of the other person’s money consensually, and then refuses to return it. Our case, where the worker earned the wages, is one good example.
Counting Different Forms of Theft
The approaches of three of the main Sifrei Mitsvot, enumerations of the commandments, capture well the tenuous position of oshek as in independent prohibition. Rambam, prohibition 247, notes three similar ways to wrongly take someone else’s money. Genevah, stealing, is where one secretly and strategically takes someone else’s money; gezel, at the opposite end, is where the criminal takes the money forcefully and openly, and oshek is where the money comes legally to the thief, and then he refuses to return it. For Rambam, Rava’s claim notwithstanding, it seems that oshek does have a distinct place in the pantheon of theft. I think Rambam would say that Rava didn’t mean to equate oshek and gezel so fully that they wouldn’t be counted as separate prohibitions (he may have thought that la’avor alav bishnei lavin, to transgress two prohibitions, literally means they should be counted twice).
The same Gemara in Baba Metsia that cited Rava’s characterization of oshek and gezel has an earlier statement that supports Rambam’s view. The Gemara noted that completely withholding wages violates several prohibitions and a positive commandment. Among the prohibitions, the Gemara counts lo tigzol, and lo ta’ashok separately. For that Gemara, then, the two are distinct.
Sefer haChinuch, as is his way, follows Rambam, and explains further, that although all three forms of theft are similar, they were assigned separate prohibitions. He goes on to assert that wherever God wanted to distance us from a certain kind of conduct— for our benefit—He multiplied prohibitions, to have more opportunities to warn us off of a certain mode of behavior. There are actually two components to this, that the multiple prohibitions will confront us with more warnings against this conduct, as well as that it will increase the severity of the crime in our eyes. In addition, on the positive side, having all those prohibitions increases our reward when we refrain from violating them.
Semag, R. Moshe of Coucy’s Sefer Mitsvot Gadol, deals with the two as separate prohibitions, like Rambam, but then notes Rava’s statement, which to him implied that they should be counted as one. He suggests, for that view, another prohibition to include among the 613, the prohibition against fomenting needless arguments within the Jewish people (I say needless, because there are causes and reasons to oppose others’ actions; our distaste for machloket should not be confused with apathy or a pluralism that has no bounds). In any case, the Jewish people clearly have not accepted Semag’s view that fomenting needless dispute is a Torah prohibition. It does show us, though, what another reading of Rava might look like.
Does Whom We Withhold From Affect the Prohibition We Are Violating?
The idea that oshek and gezel were delineated separately to make a point about the severity of this wrong brings us back to the Gemara I noted a moment ago, which said that completely withholding wages violates multiple prohibitions. Our text says five prohibitions, but Rambam only lists four, and his text apparently read five shemot, five kinds of wrong, with one being the neglect of a positive commandment.
The difference between our text and Rambam lies in whether we count the two references to oshek as distinct. Our text cites both lo ta’ashok re’acha, you shall not cheat your fellow, as well as lo ta’ashok sachir ‘ani ve-evyon, you shall not cheat a poor and impoverished worker. Rambam seems to have assumed the second was a repeat of the first (or his text of the Gemara read that way.
I don’t want to make too much of it, but it strikes me as raising the question of how different the poor are from the more economically privileged. Withholding wages is wrong regardless of the victim, but it seems reasonable to suggest that the Torah was implying that it is qualitatively different for a poor or desperately poor worker. Even someone with a million dollars in liquid assets wants, expects, and has the right to be paid for services rendered. But the added element of wages being the difference between homelessness and not, or hunger and not, or proper clothing and not, offers plausible reason to think the Torah might have wanted to make that added element clear when it invoked the ‘ani ve-evyon in Devarim.
Priority in Wage Paying
Torah Temimah to Devarim 15 notes that when the Torah discusses charitable giving in 15;7, it refers to an evyon, leading the Sifra to comment that the more needy person has priority. In our verse, however, the Torah places the ‘ani before the evyon. Torah Temimah suggests that perhaps the ‘ani is more hesitant to raise a ruckus about not having been paid—the evyon is so poor that he has lost all embarrassment about his situation, but the ‘ani still clings to some of his original dignity, and might think twice about coming back repeatedly to collect money he is properly owed. To counter that, the Torah mentioned him first.
Here, we see that even the different gradations of poor experience their travails in different ways; I think that our Gemara, too, understood the Torah to mean that they experience being cheated differently than those who are not poor, and therefore mentioned them separately in a verse.
A Creeping and Universal Wrong
Two comments on the verses in the Torah remind us that another problem of oshek is that it tends to take root and build on itself. R. Moshe Alshich, who lived in Tsfat in the 16th century, saw oshek as a rung in the ladder from failing to tithe properly (since, people convince themselves, those priests and Levites hadn’t earned their gifts), through oshek, a failure to pay what someone had earned or had given me, but is still a lack of action, to gezel, the forced expropriation of someone else’s property.
He is reading the Torah as noting that one tends to lead to the other—first, we convince ourselves we don’t have to give the mandated gifts, then that we are within our rights to withhold wages (perhaps only temporarily), and we end up having fooled ourselves into thinking we are justified to steal outright.
I note that Or haChayyim thinks the Torah mentioned oshek explicitly because people might claim the Torah only prohibited actual theft, or would claim that because we are all brethren, the cheated worker would forgive the failure to pay—like the Alshich, Or haChayyim knows that we are all too prone to find ways to tell ourselves we’re right.
Sifrei to Devarim 278;14 gives us one last way to see that oshek is simply and universally wrong, in that it notes that the Torah refers to not doing it to the stranger in our gates, the ger toshav, the non-Jew who has joined Jewish society by abandoning his idolatrous ways. Last week, we noted that the ger toshav did not have the same rights in terms of absolute on-time payment of wages as a Jew—there was a positive commandment to pay on time, and, according to some, one of the prohibitions applied (to pay before sunset), but the prohibition of bal talin did not.
To me, this suggests that the question of paying on time, or some forms of it, might be an extra favor that Jews are required to do for each other, which is why the prohibition might not extend to how we treat non-Jews. Oshek, though, is wrong, and therefore is disallowed in how Jews treat Jews and non-Jews alike.