(2012/5772)

Halacha demands fair competition in the marketplace. A pillar of Halacha in this context is the Gemara’s teaching (Kiddushin 59b) that “Ani HaMehapeich BaChararah Nikra Rasha,” “One who intrudes on an impoverished person’s chasing a crust of bread is regarded as an evildoer.” The Shulchan Aruch (Choshen Mishpat 237:1) codifies this law prohibiting interference with another’s efforts to acquire an item. This law has many applications to contemporary situations. For example, intruding on another’s attempt to acquire a specific automobile might be included in this prohibition. Another potential application of prohibited interference is intruding on another’s pursuit of a particular plot of land, a case already discussed by the Gemara. Rav Moshe Feinstein (Teshuvot Igrot Moshe Even HaEzer 1:91.) extends this prohibition even to intruding on another’s pursuit of a spouse.

The Dispute Between Rashi and Rabbeinu Tam

The precise parameters of this rule are subject to a great deal of debate among commentaries and Poskim throughout the generations. The most fundamental debate regarding this issue is the dispute between Rashi (Kiddushin 59a s.v. ani) and Rabbeinu Tam (cited in Tosafot to Kiddushin 59a s.v. ani.). Rashi interprets Ani HaMehapeich BaChararah broadly and prohibits interfering with someone’s acquiring an item even if it is not readily available elsewhere. Rabbeinu Tam, on the other hand, interprets the rule in a far narrower manner, ruling that it applies only to a situation in which the item is not easily obtainable elsewhere. He believes that only in such a situation is it forbidden to interfere with another’s pursuit of an item since one can obtain it elsewhere.

Rashi’s opinion may be based on the Torah’s teaching to love one’s neighbor as oneself (VaYikra 19:18). The Gemara (Shabbat 31a) understands this as forbidding doing to others that which one would not like done to oneself. Kesef Kedoshim (commentary to Shulchan Aruch C. M. 237) explains that according to Rabbeinu Tam’s view, even though the Torah commands one to love his neighbor as himself, the Gemara (Bava Metzia 62a) states that one’s own interests enjoy priority above another’s interests. Kesef Kedoshim explains that the obligation to avoid doing to others what one would not like done to himself applies only to activities for which one does not sustain a loss. Thus, one may not intrude on another’s efforts to obtain an item that one can easily acquire elsewhere, for, as Rabbeinu Tam explains, “Let him go and obtain it elsewhere.” However, with regard to an item not readily available elsewhere, explains Rabbeinu Tam, “There is no prohibition, for if he (the intruder) does not obtain the specific item, he will not find another one.”

Although Shulchan Aruch (ad. loc.) presents both views, Rama (ibid.) rules in accordance with the opinion of Rabbeinu Tam. The Aruch HaShulchan (C. M. 237:1) concludes that Jewish Law regards Rabbeinu Tam’s opinion as normative. Indeed, Maharshal (Teshuvot number 36) observes that the majority of the Talmudic commentaries subscribe to the approach of Rabbeinu Tam. Nonetheless, Shulchan Aruch HaRav (Hilchot Hefkeir VeHasagat Gevul 10) and Teshuvot Igrot Moshe (Even HaEzer 1:91) rule that pious individuals are advised to follow the stricter opinion of Rashi.

Although Rabbeinu Tam’s ruling is accepted as normative, Halachic authorities place significant limitations on its application. Tosafot (Kiddushin 59a s.v. Ani) explain that Rabbeinu Tam does not permit interference with acquiring an item if the one acquiring the item is doing so in pursuit of his livelihood. In addition, the Rosh (Kiddushin 3:2) rules that Rabbeinu Tam’s lenient ruling does not apply if extraordinary effort was made to acquire the item. One such example is the Gemara’s case (Gittin 59b) of a poor man who has ascended an ownerless olive tree and beats it in order to obtain its olives. Chazal forbid another from taking the olives despite the fact that the poor individual did not yet take title to the olives. Maharshal (ad. loc.) rules that Rabbeinu Tam’s ruling does not apply if the original party already expended a significant amount of money to acquire the item. Rav Dr. Aaron Levine writes that a contemporary application of this principle would be if a business owner has exerted great toil and effort to create customer demand for his product. In such a case, even Rabbeinu Tam would forbid intrusion into the specific market that the business owner has created.

Interestingly, Ramban (Bava Batra 54b s.v. U’She’Einah) writes that even according to Rashi, one may interfere with another’s efforts to acquire an item if that item is made available for all to take. For example, it is permissible for a poor person to grab some Pei’ah (grain set aside for poor individuals) in a case where another poor person has made an effort to acquire the grain. Ramban argues that even Rashi would sanction such competition, because one poor individual does not enjoy a right to the grain more than any other poor person. Thus, it seems that issuing a competing bid at an auction (whether conducted live or on the internet) is entirely permissible even according to Rashi, since the bids are open to all and the first individual who issues a bid does not enjoy priority to the item over anyone else who is invited to engage in the bidding.

On the basis of Ramban, Rav Dr. Aaron Levine (Moral Issues of the Marketplace in Jewish Law, pages 164-166) explains that establishing a competing establishment does not constitute unjust interference if the competitor enjoys the right in Halacha to open his business. Since the new enterprise enjoys the right to offer their services as much as the previously established business, there is no violation even according to Rashi’s opinion. Since in such a situation neither business person is entitled to the business of the potential customers more than his competitor, it is analogous to the Pei’ah set aside for the poor, in which case even Rashi permits competition.

The Stage of the Negotiations

There are seven other significant areas of discussion regarding the parameters of the prohibition to interfere with another’s acquisition of an item. Halachic authorities differ as to when in the purchasing process the prohibition commences. Rama (ibid.) rules that it starts only when the parties have agreed upon the terms of the deal and only a formal act of acquisition to make the sale legally binding is lacking. Sema (C. M. 237:7) explains Rama’s ruling as a means of protecting the interest of the seller. If another buyer would be forbidden to interfere before all terms are settled, the seller would be trapped into accepting the terms of any offer made to him.

Prishah (C. M. 237:1), however, records that the custom has emerged to regard interference as improper even if it occurs at an earlier stage in the negotiations. Prishah writes, “When one individual comes to acquire an item from another, and the terms of the purchase are in dispute, and the two parties are in the midst of the negotiations, and had a third party not interfered the deal would have been completed – this constitutes improper interference.” Aruch HaShulchan (ad. loc.) approvingly notes this custom but limits it to a purchase in a market where there are many sellers and buyers. However, he rules in accordance with the Rama regarding a negotiation that is conducted outside of such an environment. Aruch HaShulchan’s view seems to be based on the aforementioned approach of Rabbeinu Tam to restrict the prohibition of interference to a situation in which there is no other similar item that is available. Accordingly, in a marketplace where there are ample opportunities for purchases, there is no legitimate reason to intrude on someone else’s negotiation. However, outside of such circumstances, another such item might not be available, and thus one may interfere with the negotiation as long as the deal has not been concluded.

Nonetheless, this matter is an unresolved issue in Jewish Law, since Shulchan Aruch HaRav (ad. loc. number 11) does not cite this ruling of the Prishah. Even Prishah does not record this custom in his commentary to Shulchan Aruch C. M. chapter 237 (Sema). As noted above, Sema explains (and seems to endorse) the ruling of Rama. Even Rav Moshe Feinstein adopts varying approaches to this issue in his Teshuvot (compare Teshuvot Igrot Moshe C. M. 1:60 and Even HaEzer 1:91). Thus, a rabbinic court is not authorized to compel compliance with the custom recorded by Prishah. However, Rav Yaakov Bloi writes (Pitchei Choshen volume four, chapter nine, section sixteen) that proper ethical behavior is to refrain from interfering with ongoing negotiations. Nonetheless, Rav Bloi rules (ad. loc. section 37) that the prohibition to interfere undoubtedly exists if a market price is well-known and not subject to negotiation. The prohibition also applies in a situation in which the buyer and seller have agreed to the sale at a price they will determine at a later date.

One wonders as to the propriety of intruding on a negotiation to purchase a house where the parties have reached an agreement to purchase the property but the customary three days for attorney review of the process has not been completed. It seems to this author that Rama would permit such an intrusion, since he forbids an intrusion only when the formal act of transaction is the sole component lacking to complete the deal. Accordingly, Rama would permit the intrusion if the attorney review period has not passed. Nonetheless, such behavior is not regarded as pious.

Conclusion

In two weeks (after Purim) we shall IYH and BN conclude our discussion of Ani HaMehapeich BaChararah with a discussion of six more issues pertaining to this common Halachic concern.