Predicting the Future

Q. Our company makes projections and forecasts -- some have been remarkably prescient, some have missed the mark. Is it ethical to mention only our successes in our promotion?

A. Predicting the future is certainly a challenging task. Whether you are predicting economic growth, weather patterns, or consumer tastes, we can be certain of uncertainty. The fact that you miss the mark every so often doesn't mean your forecasts are not of value. Still, your promotional materials have to be suited to your line of business.

In general, there is nothing wrong with a salesperson emphasizing only the positive aspects of his or her product. A salesperson is an advocate, not an objective advisor; the customer knows full well that the seller is trying to present the best possible case for the sale, just as an advocate in court is trying to present the best possible case for the client. The consumer is then judge. So for example, if my firm makes a car with great power and poor gas mileage, I can point out the impressive horsepower to the customer, without bothering to mention the bad mileage.

Of course even an advocate is not allowed to lie or mislead. You can't say that the car gets good mileage if it doesn't, and if the customer asks about the mileage you should reply honestly.

However, the leniency of emphasizing the positive is subject to two important caveats:

1. If there is an actual deficiency in the good or service, it must be actively disclosed. A deficiency is a lack of any feature the customer has a reasonable expectation of obtaining. Since many cars get poor gas mileage, this is not considered a blemish. But if the brakes were bad you would be obligated to mention this fact on your own initiative. According to Jewish law, an undisclosed blemish generally renders the sale fraudulent, thus nullifying it altogether. The blemish has to be disclosed in a forthright way, not in the "small print".

The Talmud teaches:

One who sells a cow to his fellow and states: This cow butts, bites, kicks and stalls -- if she had only one of these deficiencies and he stuck it in with the others, this is a null transaction. (1)

The modern day equivalent is the overly broad disclaimer, in which the seller disclaims responsibility for every kind of defect, including far-reaching or irrelevant ones. Consumers readily sign (or click on) these disclaimers, assuming they are meant to protect against unexpected deficiencies. When such a disclaimer is used to camouflage a known problem it is invalid in Jewish law.

2. Selective disclosure is forbidden if the characteristics you disclose are represented as being somehow representative of those you conceal. The mishna tells us:

[The seller] may not sift the beans, according to Abba Shaul, but the sages permit it. But they concur that he may not sift only on top of the bin, for this is only to deceive the eye. (2)

When beans are customarily sold with the husks or other debris, Abba Shaul forbids selling them cleaned and sifted. His concern is that he may present them as a premium product and ask an exaggerated price when in fact the consumer could easily obtain the same result at home with little effort. This is still a common and perhaps objectionable practice, but this is permissible because the customer sees what he gets and can decide if the added price is worth it. But if only the beans on top are clean, then the clean beans on top will be considered representative of the unsifted ones underneath; then the sorting is deceptive.

The first problem above is not really relevant for you. Making an occasional bad forecast is not a deficiency in your product; it goes with the territory. But the second problem is quite relevant. Even the most naïve "prediction" will be right at times. That's how racecourse touts make a living; they give bettors "hot tips", and ask for payment only if the horse actually finishes in the money. But of course even if their predictions are only average the tips will pan out many times, thus they make a living from making worthless forecasts. (If they could really beat the odds they would be betting with their money, not yours.)

There would be an exception if some of your predictions were so extraordinary that they even considering the entire set of predictions they display significant ability. If you predicted scores of winners, that's unimpressive if you've been around the track a long time. But if you've predicted a bunch of trifectas, chances are good you're on to something. Of course this could also be chance, and the customer will have to decide, but the information that you've predicted some rare events is interesting and not misleading to the customer.

A salesperson is allowed to be an advocate for the product, emphasizing its best qualities and the ways in which it can benefit the consumer. When you sell the beans, emphasize the beans, not the debris. But you can't hide the debris. When your less favorable outcomes reflect directly on your favorable ones, as they do in most forecasting businesses, picking and choosing your good picks is akin to putting the clean beans on the top of the bin.

SOURCES: (1) Babylonian Talmud Bava Metzia 80a (2) Babylonian Talmud Bava Metzia 60a