(2010/5771)

The Case

Last week (in an essay archived at www.koltorah.org) we began to discuss the following case. The Torah Academy of Bergen County’s varsity hockey team won the New York metropolitan hockey league championship in 2007 and 2008. The glove used by the goalie in these games remains within the hockey team as a coveted memento that is passed from one graduating class to the next. In March 2009, at one of the practices close to the end of the hockey season, one student (“glove caller”) “called” (reserved) the right to purchase the goalie glove from the graduating goalie (“goalie”) at the end of the season. Toward the end of the summer of 2009, when “goalie” was at summer camp in the Pocono Mountains, he offered to sell the goalie glove to another member of the TABC hockey team. This student reminded “goalie” that “glove caller” had already “called” the right to purchase the hockey glove. “Goalie” told him not to be concerned with the “call” and subsequently sold the glove to this student (“glove purchaser”) who was with him in camp.

In September 2009, when “glove caller” discovered that “goalie” had sold the coveted glove to “glove purchaser,” he objected to his “call” not being respected. The two students came to me to resolve the dispute. “Glove caller” claimed the right to purchase the glove from “glove purchaser,” and “glove purchaser” questioned that right.

We concluded last week that “glove caller” did not acquire rights to the glove by making the “call,” and “goalie” did not act unethically by not honoring the call. This week we shall conclude this topic with a discussion of whether “glove purchaser” violated the rules of Ani HaMehapeich BeChararah by intruding on someone else’s efforts to acquire the item.

Ani HaMehapeich BeChararah

Halachah demands ethical competition in the marketplace. The Gemara (Kiddushin 59b) teaches “Ani HaMehapeich BeChararah Nikra Rasha,” one who intrudes on an impoverished person chasing a crust of bread is regarded as an evildoer. The Shulchan Aruch (Choshen Mishpat 237:1) codifies this law as prohibiting interference with another’s efforts to acquire an item. What are the implications of being classified as an evildoer? Sema (C.M. 237:1) explains that it is announced in Shul that he has acted in an evil manner. Thus, communal pressure is exerted to persuade the one who interfered to rectify the wrong he perpetrated.

 This Halachah has manifold applications to the contemporary marketplace. For example, intruding on another’s attempt to acquire a specific previously owned 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 (ibid.). Rav Moshe Feinstein (Teshuvot Igrot Moshe Even HaEzer 1:91) extends this prohibition even to intruding on another’s pursuit of a spouse. Thus, “glove purchaser” seems to have violated this prohibition by intruding on “glove caller’s” pursuit of the championship goalie glove.

The Dispute between Rashi and Rabbeinu Tam

However, the precise parameters of this rule are subject to a great deal of debate amongst Rishonim and Acharonim. The most fundamental debate regarding this issue is the debate between Rashi (Kiddushin 59a s.v. Ani) and Rabbeinu Tam (cited in Tosafot to Kiddushin 59a s.v. Ani). Rashi interprets Ani HaMehapeich BeChararah 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 easily obtainable elsewhere.  He believes that only in such a situation is it unethical 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 dictum (Vayikra 19:18) to love one’s neighbor as one loves oneself. The Gemara (Shabbat 31a) understands this as forbidding doing to others that which one would not like done to oneself. Kesef Kedoshim (to Shulchan Aruch ad. loc.) explains that according to Rabbeinu Tam’s view, even though the Torah commands one to love his neighbor as he loves himself, one’s own interests enjoy priority above another’s interests, as the Gemara (Bava Metzia 62a) states. Kesef Kedoshim explains that the dictum 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 he 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, reasons 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 (ibid.) presents both views, Rama rules in accordance with the opinion of Rabbeinu Tam. Later authorities (including the Aruch HaShulchan C.M. 237:1) conclude that Halachah follows Rabbeinu Tam’s opinion. Indeed, Maharshal (Teshuvot number 36) observes that the majority of the Talmudic commentaries subscribe to the approach of Rabbeinu Tam. Nonetheless, pious individuals are advised to follow the stricter opinion of Rashi (Shulchan Aruch HaRav Hilchot Hefkeir VeHasagat Gevul 10 and Teshuvot Igrot Moshe Even HaEzer 1:91).

 “Glove purchaser” seems to have acted improperly even according to Rabbeinu Tam, since goalie gloves are readily available in any sporting goods store. However, the item was not an ordinary goalie glove; rather, the glove was a legacy from the two TABC championship seasons. Thus, “glove purchaser” acted properly only according to Rabbeinu Tam, and his action, while not technically prohibited, would nonetheless seem to be regarded as impious behavior.

The Stage of the Negotiations

Nevertheless, there are two potential considerations to further defend the actions of “glove purchaser.” Halachic authorities differ as to when specifically in the purchasing process the prohibition commences. Rama rules that it starts only when the parties have agreed upon the terms of the deal and only a formal act of acquisition (Kinyan) to make the sale legally binding is lacking.  Sema (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, since another buyer would be forbidden to interfere.

Perishah (237:11), however, records that the custom has emerged to regard the interference as improper even if it occurred at an earlier stage in the negotiations. Perishah writes, “When one individual comes to acquire an item 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 (ibid.) also approvingly notes this custom but limits it to a purchase in a market that consists of many sellers and buyers. However, he rules in accordance with Rama regarding a sales negotiation that is conducted outside such an environment. Aruch HaShulchan’s approach seems to be based on the aforementioned approach of Rabbeinu Tam to restrict the prohibition of interference to a situation in which another similar item does not exist. Accordingly, in a marketplace that consists of ample opportunity for purchases, there is no legitimate reason to intrude on someone else’s negotiation. However, outside of such a circumstance, another such item might not be available, and thus one may interfere with the negotiation as long as the deal has not yet been concluded.

 Thus, according to Rashi, “glove purchaser’s” interference is unjustified and seems to be regarded as impious behavior even though negotiations between “glove caller” and “goalie” had not been completed. Indeed, Pitchei Choshen (4:9:16) rules that proper ethical behavior is to refrain from interfering with ongoing negotiations. This is especially true in our situation, since it is customary among Modern Orthodox adolescents to refrain from interfering in a negotiation when someone “calls” an item. Thus, Rama’s ruling does not adequately defend the behavior of “glove purchaser.”

Seller’s Preference

A more effective defense of “glove purchaser” is that he is not at all guilty of violating Ani HaMehapeich BeChararah even according to Rashi, since he did not interfere with the purchase. Recall that it was “goalie” who initiated the negotiation with “glove purchaser” and that we concluded in last week’s issue that he was completely entitled to do so. Indeed, Teshuvot Avnei Neizer (C.M. 17) writes that the prohibition of Ani HaMehapeich BeChararah applies only to the buyer and not to the seller, and Pitchei Choshen (4:9 footnote 32) records that Chazon Ish agrees. Pitchei Choshen also observes that no authoritative Teshuvah has stated the contrary. Moreover, the Gemara states, “Ani HaMehapeich BeChararah UVa Acheir VeNatlah (and another came and took it) Nikra Rasha,” implying that the prohibition applies only when another buyer interferes and not when the seller initiates the negotiations with another buyer who is a more desirable purchaser. Thus, since “goalie” was fully entitled to initiate the negotiation with “glove purchaser,” the latter did not violate Ani HaMehapeich BeChararah even according to Rashi.

Conclusion

The final ruling was that “glove purchaser” is fully entitled to keep the glove and that “glove caller” cannot demand that the glove be sold to him. This ruling was not only in accordance with strict Halachah but was also quite fair in keeping with the TABC tradition to pass the glove from the graduating goalie to the goalie of the incoming twelfth grade. This story has a happy ending in that when “glove purchaser” graduated in 2010, he sold the glove to “glove caller,” who is the current twelfth grade goalie in 2010-2011.