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On the Talmudic Prohibition against Giving Gifts to Gentiles

Published online by Cambridge University Press:  04 July 2014

Hanina Ben-Menahem
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Extract

Examination of the institution of the gift in the Talmud reveals that giving gifts to Gentiles is prohibited. The prohibition is generally believed to be motivated by the desire to restrict social intercourse between Jews and Gentiles. Gift-giving, it is argued, might lead to, or indicate the existence of, overly-close social relations. On this understanding of the institution, then, it is the potential consequences of the gift-giving that are problematic, rather than the act itself. I will argue that this social account of the origin of the prohibition is unsatisfactory, and that while social considerations did play a role, to regard the inhibition of fraternization with Gentiles as the sole or primary factor underlying the prohibition is a facile oversimplification. Further, I will argue that the explanation for the prohibition must be sought in the act itself, rather than in its consequences.

Type
Ancient and Jewish Law
Information
Israel Law Review , Volume 29 , Issue 1-2 , Winter-Spring 1995 , pp. 95 - 104
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1995

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References

1 See Cohen, Y., The Attitude to the Gentile in the Halacha and in the World in the Tannaitic Period (unpublished dissertation, Jerusalem, 1975, Hebrew) 252.Google Scholar

2 Yaron's, Reuven classical study, Gifts in Contemplation of Death in Jewish and Roman Law, (Oxford, 1960) is an instructive example.Google Scholar

3 Mauss, Marcel, The Gift, (New York, 1967).Google Scholar

4 Emerson, Ralph Waldo, Essays, first and second series, (New York, 1990) 305.Google Scholar

5 Nietzsche, Friedrich, Daybreak, Thoughts on the Prejudices of Morality, trans. Hollingdale, R. J., (Cambridge, 1982)Google Scholar sec. 112. But cf. Bourdieu, Pierre, The Logic of Practice, trans. Nice, R., (Stanford, 1990) ch. 6.Google Scholar Bourdieu embraces the Nietzschean insight of the power play inherent in gift-giving, but applies it in the context of the traditional analysis of the dynamic of gift-giving.

6 bBaba Batra 144b; Maimonides, Code, Laws concerning Original Acquisition and Gifts, 7:1–2.

7 Aristotle appears to have taken this connection for granted, see Ethics 1122–3.

8 Mauss, supra n. 3, at 15–16.

9 bBetza 37a.

10 Maimonides, Code, Laws concerning Evaluations and Things Votive 8:12.

11 bBerakhot 5a and parallels.

12 bShabbat 10b; bBetza 16a.

13 bEruvin 54a, bNedarim 45a; cf. jMaaser Sheini 1:1—“Just as manna was given as a gift, so too the second tithe is given likewise”.

14 Wisdom of Ben Sira (Ecclesiasticus), Segal edition, (Jerusalem, 1958) ch. 35.

15 The Hebrew language is rich in gift-giving terminology, an indication of the centrality of the institution in daily life. It appears that the number of terms denoting gift-giving well exceeds that denoting other common activities, such as selling. The list includes: matana, korban, etnan, doron, teshura, shai, nedava, minha, shohad, tzedakah. However, some of these terms, such as etnan and shohad, eventually assumed specialized meanings, and no longer simply denoted generic gift-giving.

16 E.g., minha, matnot kehuna, and matnot aniim.

16a bZevahim 7b.

17 Siphre Zutta, ed. Horovitz, H. S., (Jerusalem, 1960) 232; jMaaser Sheini 4:4 and parallels, cf.Google ScholarLieberman, S., Siphre Zutta 2 (The Midrash of Lydda), (New York, 1968) 72–74.Google Scholar

18 Sifre on Deuteronomy, ed. Finkelstein, L., (New York, 1969) 114; cf. Ben Sira, supra n. 14, ch. 7; Tanna De-Vei EliyahuGoogle Scholar, ed. Shalom, Meir Ish, (Vienna, 1902) parashah 24.Google Scholar

19 See Heyd, D., Supererogation. Its Status in Ethical Theory (Cambridge, 1982) 147–8.Google Scholar

20 Derrida and other deconstructionists write at length on the paradox of gift-giving. They argue that in the final analysis it is impossible to give a gift, because the donor always incurs some benefit from the purportedly unselfish act of gift-giving. See, for example, Bennington, G. and Derrida, J., J. Derrida, trans. Bennington, G., (Chicago, 1993) 188ffGoogle Scholar; Derrida, J., Given Time: I. Counterfeit Money, trans. Kamuf, Peggy, (Chicago, 1992) ch. 2Google Scholar; The Gift of Death, trans. David Wills, (Chicago, 1995) 112.

21 Atiyah, P. S., Promises, Morals and the Law, (Oxford, 1981) 212.Google Scholar

22 bBeitza 26b, bGittin 50b, bBaba Metzia 15b, 16a, bBaba Batra 156a.

23 See supra n. 12.

24 Deut. 7:2.

25 bAvoda Zara 20a (cf. jAvoda Zara 1:9). In his article “On the Transfer of Property from Jew to Non-Jew in Amoraic Palestine (200—400)” ((1973) 4 Dinei Yisrael, 17–34, pp. 21–22), Daniel Sperber argues that this Baraita is a relatively late Amoraic teaching and does not reflect the Tannaitic position. The fact that the Baraita is preceded by the phrase “it was likewise taught” (tanya nami hakhi) might be thought of as supporting this view. However, Sperber's contention cannot be sustained for a number of reasons. First, the idea expressed in the Baraita is also found in the dispute quoted below between the Tannaites R. Meir and R. Judah. Second, as was convincingly demonstrated by Hauptman, Judith in her Development of the Talmudic Sugya (Lanham, MD, 1988)Google Scholar, passages containing a teaching preceded by “it was likewise taught” are actually composed of a Baraita — a Tannaitic teaching — and a late Amoraic source; the Baraita usually stands on its own and is merely appended to the Amorate teaching for rhetorical purposes. Third, the fact that in the Palestinian Talmud this teaching does not appear as a Baraita is not decisive, since it is by no means rare for the substance of a Tannai tic tradition to be asserted by an Amorate Sage.

26 Deut. 14:21.

27 bAvoda Zara 20a (bPesahim 21b; bBaba Kama 41a; bHulin 114b). The halakhah follows the view of R. Judah.

28 jAvoda Zara 1:9; bAvoda Zara 20a.

29 The term “gratuitous gift”, with the same connotation, is found in mMaaser Sheini 1:1, which states “The second tithe may not be sold or pawned and may not be exchanged commercially but may be given as a gratuitous gift”. That is, any business transaction is prohibited, including the giving of obligation-discharging gifts. The only permissible form of transfer of the second tithe is that of the gratuitous gift, as was pointed out by Albeck in his commentary on the Mishnah ad loc: “one which is given without the giver's having any obligation he intends to discharge thereby.”

30 tAvoda Zara 3:14.

31 See, for example, Hasdei David ad loc.

32 The distinction between acquaintance and non-acquaintance is also made, in a different context, in jAvoda Zara 1:1.

33 Notice the play on words between the two phrases used here: makiro and mokhro.

34 Or. 1080 Box 13. 69.

35 Code, Laws concerning Worshippers of Stars and their Practices, 10:4; Laws concerning Original Acquisition and Gifts 3:11, 9:10. It is noteworthy that Maimonides does not cite the Tosefta in any of these places.

36 Deut. 14:26.

37 Code, Laws concerning Original Acquisition and Gifts, 3:11.

38 See tPesahim 1:7, 1:24; tAvoda Zara 3:16; jAvoda Zara 1:9; bShabbat 18b; bErubin 64a; Tosafot on bErubin 64b.

39 Hoffman, D., Der Schulchan Aruch und die Rabbinen über das Verhältnis der Juden zu Andersgläubigen, (Berlin, 1894) 164Google Scholar; Guttmann, M., Das Judentum und seine Umwelt, (Berlin, 1927) 233, note 1.Google Scholar

40 Cohen, supra n. 1, at 252.

41 jShabbat 1:4.

42 Lieberman, S., Hayerushalmi kifshuto, (Jerusalem, 1934) 45.Google Scholar Lieberman apparently rejects the view of M. Lerner in “Die 18 Bestimmungen,” (1882) 9 Magazin, cited in Knohl, I., “Kabalat Korbanot min Hanokhrim” (1978–1979) 48 Tarbiz 343.Google Scholar

43 Gulak, A., Yesodei Hamishpat Haivri, (Tel Aviv, 1967) vol. 1, p. 43.Google Scholar

44 R. Joseph Caro, Beit Yosef on Tur, Hoshen Mishpat 249 (2); Shulhan Arukh, Hoshen Mishpat 249 (2); Sefer Meirat Enayim, Hoshen Mishpat, 249 (2).

45 Tertullian, , De Idololatria, 13, 2–5.Google Scholar