Jayme Vita Roso*
The objective of this article is to show that the consumer rights protection has existed for milleniums, according to the Jewish written and oral traditions. Above all, we shall try to show that tradition has always treated man as God´s living creation, and not just a mere consumer. What is sold is merchandise, not man, who has no price.
lt is interesting to note that the word Bible does not have a counterpart in the Hebrew language, the word Tanach being used in studies, which is composed of the initials of the words Tora, Neviim, Ketuvim, giving rise to TANACH. As such, based on the Tora, which, within the structure of the Hebrew bible, is the equivalent to the Pentateuch (five books), we can find the origin and the source of the ethical and religious precepts that sustain Jewish monotheism. The books of the Tora are: a) Genesis: Berechit (beginning); b) Exodus: Chemot (the names); c) Leviticus: Vayikra (the calling); d) Numbers: Bamidbar (in the desert) and e) Deuteronomy: Devarim (the words). lt is clear is that the Hebrew names of these five books correspond to one of the first words of their respective first verses.
For such, remotely, with the scriptures of the Tora, two clear references to the unlawful use of weights and measurements to deceive buyers can already be found, with the express determination that the act offended the oral revelation made by Moses, at Mount Sinai.
In Leviticus, Chapter XIX, verse 35 and 36, The Eternal, speaking to Moses, says: "You shall do no wrong in judgment, in measures of length or weight or quantity. You shall have just balances, just weights, a just ephah, and a just hin: I am the LORD your God, who brought you out of the land of Egypt”.
The corollary of the oral recommendations contained in Chapter XIX, Leviticus, comes from verse 37, which establishes the relationship between the Creator and man, taking into consideration that ethical behavior (Midot) is indispensable and must be followed at all times in life, with these words: "And you shall observe all my statutes and all my ordinances, and do them: I am the LORD".
In sequence, in Deuteronomy, it is now Moses who says to his people, words of advice, comfort, recommendation and obedience of the law. In Chapter XXV, verses 13 to 16, he advises: "You shall not have in your bag two kinds of weights, a large and a small. You shall not have in your house two kinds of measures, a large and a small. A full and just weight you shall have, a full and just measure you shall have; that your days may be prolonged in the land which the LORD your God gives you. For all who do such things, all who act dishonestly, are an abomination to the LORD your God".
Here, a pause for reference. The event of the revelation is a gift of the Tora, conferred on Moses by the Creator, as the representative of his people. All the rules of interpretation were thus given to Moses at Mount Sinai and later transmitted through oral law from generation to generation, without discontinuity, throughout the centuries, until reaching the Wisemen of Talmud. They were then successively systemized to the Talmud era by wisemen such as Hillel the Ancient, Naum of Gamzo, Rabi Akiba and Rabi Ichmael. The law is inscribed in a manner which makes its interpretation necessary.
Intentionally, the Talmud is a body or set of oral traditions which, simplistically speaking, provides the foundation for the authority of Jewish laws and traditions, accumulated throughout the centuries, that is, until the year 450 of the common era. Its study was elevated to the same level of importance as the Tora, which is an obligation dictated by God or His will, that the Tora be interpreted mainly for the study of the Talmud. lt was responsible for modeling the nature of Judaism and the Jewish identity. Its laws transformed Judaism into a way of life, encompassing all aspects of Jewish life.
The first complete translation, in English, was edited by Isidor Epstein, and published in London by Soncino Press, to which we had access together with the CD-Rom from the Soncino Classics Collection, published by the Institute for Computers in Jewish Life and Davka Corporation.
The Talmudic law expresses that the divine punishment for incorrect and/or false acts is more severe than for incestuous marriage, which it prohibits.
Given that most commercial traffic was formerly carried out through bartering or sale by means of weighing (grain in general) or measurement (oil, wines and derivatives), which was mandatory among the Jews themselves as well as with the "gentiles", without controlling the weights or measuring devices in the case of the latter.
The obligation for sellers to have in their businesses, wherever they were, three weight measurements which corresponded to a pound (456g), thus having equivalency: a quarter pound (114g), half a pound (228g) and an actual pound was astute and wise. lt was also an obligation of the merchants to only use weights made of stone or glass, prohibiting the use of metals which could, with the passing of time, and in any form, be affected by friction (brass, for instance, was prohibited). lt was also prohibited for merchants to leave the weights inside salt containers, as they could become lighter.
lt was the prerogative of each city to set standard measurements, with some restrictions, although, in reference to Soncino 37, there is a statement which says: "the inhabitants of the cities have the liberty to establish the weights, measurements, prices and their respective fluctuations". lt was common, in many locations, by delegation of the community administrators, to have authorities responsible for the authentication and sealing of all such measurements. lt was also strictly prohibited, surprising as it may be, the rigid enforcement, for any person to maintain in their own home a measurement found to be higher or lower than the one standardized by the city, as anyone could use it inadvertedly, regardless of the purpose.
The merchants, when not established in the city, were invited to follow local uses and customs, as buyers expected that such would be done when acquiring any merchandize and could thus not be taken by surprise by weights and measurements not familiar to them. In the event of error or oversight in measurements, weight, or the number requested by the buyer, the sale was considered null, that is, considered non-effective between the two parties.
The merchants who worked with liquids (oil, wine, vinegar, etc), as foreseen by the Talmud, would have to maintain the containers clean, recleaning them after use in order to ensure buyers of exact weights, and the measurements would have to be cleaned in the same manner, twice weekly, and the weights once weekly.
The tribunals nominated the inspecting authorities, weights, measurements and scales to be used in commerce. These authorities, in many cities, had the power to maintain prices equal and uniform among merchants of the same sector, and were responsible for imposing pecuniary penalties upon those who inflinged such laws.
In the commercialization of in natura or unfinished products, whether bulk or retail sales (for immediate consumption); Talmudic law provided for the mandatory nature of precision and clarity over the quality of the merchandize sold. Defects which were hidden or unnoticeable in a visual inspection, often conducted in haste, had to be denounced. In the same manner, in a profound preview of what would come centuries later, Talmudíc law prohibited the luring of the buyer through the false impression of superior quality (today, sophisticated publicity techniques are employed to deceive the consumer). At that time, frauds were of common practice, not so different from what recently took place in France, Italy or even the Brazilian state of Rio Grande do Sul: the addition of water to good quality wine, as well as the mixing of old wine from a rejected vintage with a younger wine in order to create a blend or the use of old oil containers for the storage of wine, without any manner of hygienic precaution.
The Talmudic provision for fraud deserves a brief comparison to fraud under the Roman law.
There seems to be no specific work on fraud, under Roman law, which covers it in its multiple aspects, such as fraus legi and fraus creditorum.
Lucio Bove, novelist from Naples University, understands fraud as, “... in general, malicious behavior, contrary to standards, expressed or not, or to custom, in an attempt to obtain an illicit result, even when such act causes concrete and actual damage to some other individual´ (entry, Novíssimo Digesto Italiano).
In Roman classic literature there are allusions to fraud, giving rise to terms such as fraudare, fraudatio, fraudulentus, fraudatorium. The tangent, in this comparative examination, between the talmudic source, which condemns fraud, and the Roman, as described,is also penalized by moralists.
The maxims of Seneca and Fedro became immortal. From the first fraus sublimi regnat in aula (the bad and the powerful never tire from employing fraud and fortune to corrupt truth and cast treachery upon the heedless), from the second, quicumque turpi fraude semel innotuit, etiam si verum dicit, amittit fidem (whomever was once tainted by an act of fraud would never again be believed, regardless of their desire to become truthful).
In commercial relations, the severity of the Talmudic law deals with specific frauds, almost seeking to contain the multifarious variety of frauds. Not only for the curiosity that it arouses, or the human relevance given to the protection of good faith, some practices are worth remembering:
a. soak the meat in water in order so that it weighs more when put on the scale;
b. inflate the intestines and bowels of an animal for sale in order to make it look larger that it really is;
c. repaint objects on sale in order to make them appear new;
d. dye one´s hair or beard in order to obtain a job that requires a particular age.
Anticipating the famous disclosure act, talmudic law, in profound understanding of the human soul and the existential tragedy of the eternal conflict between being and having, becomes increasingly specific, making the supply of precise information on the product on sale obligatory. An example would be the obligation to inform a buyer of a leather shoe of the animal whose skin was used for the manufacture of the shoes.
Not only the pretense of subterfuge was safeguarded, but the form by which modern visible or semi-visible defects are presented, although a sale is considered valid when a visible defect is clearly shown or mentioned and others not easily detected, because the buyer received enough information to reject the purchase at first sight.
In the same way, depending on the location, the existence of an obvious fact would not be a motive for the annulment of the sale. Thus, in certain regions, where the clay was not good quality, or difficult to work with, breakage inferior to 10% was admitted because the buyer was not deceived.
The control of prices is not the creation of state guidance. This instrument which caused so many injuries, generally formulated by people who dreamed of governing, had already found certain works in talmudic law formulated with discernment, good sense and strong human feeling.
The so called merchandizing techniques, were usually condemned by talmudic writers of treatises, when they were aimed at inducing the buyer to spend more or return to the same establishment, having been seduced by “something more", such as the children receiving nuts (as gifts) while the parents made purchases.
In addition, despíte such a practice having being ferociously combated, the merchants allowed themseives to lower the price of some articles, not only to please the buyer, but also to ensure their own survival.
The attraction of buyers by fraudulent means, however, was considered illegal. Thus, a product that had been on sale with a certain discount could not lead the merchant to convince the buyer that such a discount was special, and in the same manner, if the merchant promised more for the money spent by the buyer in his shop, he could not offer products that were lower in quality or even in quantity to those of his competitors.
To Talmudists, the paternal formula fell to degradation upon being left in the hands of people delegated by tribunals to set the measurements and maximum prices because: a) they always hesitated in placing stops to free competition; b) always agreed that it was the privilege of each one to sell his merchandize for the price judged best, when the merchant believed his goods to be superior to those of others.
However, the reiteration of fraud and the practice of unlawful acts lead the talmudists to recognize the setting of prices ad altera. One such act, of flagrant curiosity, consisted of forcing other merchants to lower the prices of certain goods and then, when such goods were exhausted, they would raise prices of their own stocks, compensating for the previous alterations in an abusive form.
There was another formula for setting the prices: through buyers´ common sense. There would be intervention when the prices were raised outrageously or lowered, confusing the consumer.
The talmudic legislature, by protecting the consumer, in a manner, in issues of price annulment, facilitated complaints through the absence of bureaucracy; there were no judicial costs, attorney fees, nor legal proceedings on paper: the oral tradition and immediate decision-making predominated.
As such, proceedings were simplified, without bureaucracy, emphasizing, however, religious aspects and their implications in daily life at all times, as the integrity of each person was the most valued virtue.
The Talmud provides a vision of the world in which free competition among men is respected, with the exceptions that we have tried to show. However, wisely, weights and measurements were set beforehand. lt always insisted that good faith should prevail between buyers and sellers. For such ends, very well distributed agencies were established to support daily activities, regulating market prices and providing an efficient and cheap judicial system, as well as establishing forms of conduct, always bearing in mind the promise of divine punishment to infractors.
The Talmud ended monolithic thinking, which had its apex in modern liberal capitalism, and its boldness, centuries old, made it understood that, though atheist, there were important Jews (Mark, Lenin, Trotsky) who gave shape to modem socialism, proposing the possible rebirth of man, supported by the talmudic tradition, although diverging from the real religious support.
Regarding the great Jewish plans, Golda Meir expressed: "Never have I accepted that the Jews were the chosen people, as it is said. lt seemed, as it still seems, more reasonable to believe, not that God has chosen the Jews, but that the Jews were the first people to have chosen God, the first people in history to have actually accomplished revolutionary feats, and as such, the only ones”1.
To conclude, by taking into consideration the Eternal plan, the Jews, upon practicing an entire set of rules and standards that defend man, harmonizing society, above all in commercial relations, felt and were sensitized by the precariousness of the human condition, in its brief period of earthly existence.
1 My Life, Nova York, 2nd edition, 1977, pages 13114.
* Advogado do escritório Jayme Vita Roso Advogados e Consultores Jurídicos