Encroaching Upon Another Person's Livelihood
TOPICS IN HALAKHA
In loving memory of Channa Schreiber
(Channa Rivka bat Yosef v' Yocheved) z"l,
with wishes for consolation and comfort to her dear children
Yossi and Mona, Yitzchak and Carmit, and their families,
along with all who mourn for Tzion and Yerushalayim.
Encroaching upon another person's livelihood
Rav Shlomo Levi*
The Gemara in Sanhedrin (81a) records a derasha based on a verse from the book of Yechezkel, according to which one is forbidden to encroach upon another person's livelihood:
Rav Acha the son of Rabbi Chanina gave the following exposition: 'Neither has he defiled his neighbor's wife,' indicating that he did not encroach upon his neighbor's profession."
The Acharonim disagree about how to understand this exposition: Is the derasha referring to forms of economic competition that are forbidden by strict law; or perhaps that this notion does not relate to that which is forbidden, rather it teaches that even practices that out of piety (midat chassidut) one should refrain from these practices even though they are permissible according to the letter of the law. The Chatam Sofer adopted the first approach, whereas the Chavot Yair, the Shulchan Arukh ha-Rav and others followed the second understanding.
The main talmudic passage dealing with this issue is found in Bava Batra 21b:
Rav Huna said: If a resident of an alley sets up a handmill and another resident of the alley wants to set up one next to him, the first has the right to stop him, because he can say to him, "You are interfering with my livelihood."
A certain person earned his living grinding the wheat of his neighbors living in the same alley. Another person living in the same alley wishes to set up a competing mill. The law is that the first person can object to the second person's venture, arguing that the latter is damaging his livelihood.
The Gemara tries to bring support from another ruling:
May we say that this view is supported by the following: "Fishing nets must be kept away from [the hiding-place of] a fish [which has been spotted by another fisherman] the full length of the fish's swim." And how much is this? Rabba bar Rav Huna says: A parsa.
If a person wishes to spread his fishing net in a place where there is already another fisherman, the former must significantly distance himself from the latter, in order that he not interfere with the formers livelihood. At first glance, this would appear to be comparable to the case of the millers. But the Gemara rejects this proof:
Fishes are different, because they look about [for food].
This cryptic answer will be explained later.
In any event, the Gemara concludes as follows:
Rav Huna the son of Rav Yehoshua said: It is quite clear to me that the resident of one town can prevent the resident of another town [from coming to his town and competing with him], not, however, if he [the latter] pays taxes to that town and that the resident of an alley cannot prevent another resident of the same alley [from competing with him in his own alley]. Rav Huna the son of Rav Yehoshua then raised the question: Can the resident of one alley prevent the resident of another [from competing with him]? Let it stand [unresolved].
The conclusion of the Gemara presents the following distinction: The resident of one town can prevent the resident of another town from setting up a competing business in the former's town, but he cannot prevent another resident of the same town from doing the same. And similarly the resident of a certain alley cannot prevent another resident of that same alley from setting up a competing business in that alley, against Rav Huna's ruling at the beginning of the passage. As for whether or not the resident of one alley can prevent the resident of another alley from setting up a competing business in the former's alley, the Gemara leaves the issue undecided.
At first glance, this discussion has no relevance in our time, for businesses are not local in the sense that the Gemara assumes, and anybody can set up a business wherever he wants. And indeed this factor is significant in practice, for the law in such matters depends upon the common practice in a given place. Since nowadays it is generally accepted that anybody can set a business wherever he desires, the Halakha recognizes that as valid. This is especially true in light of the fact that businesses pay property taxes to the local authorities regardless of their origin, and the Gemara specifically states that if a person pays the local taxes, he is permitted to work where he pleases.
It is important to emphasize that there are certain situations in which we say that since the circumstances have changed, and the common practice has changed the Halakha has also changed, as in our case. There is no reason for a person to waive his right to open a competing business based on this halakha, as it does not apply today. On the other hand, in many cases the common practice is irrelevant to the halakha: it is inconceivable that if it were common practice to lie or steal, of if it were the accepted practice among businessmen to engage in fraud, that these would be permitted. The difficulty, of course, is determining where common practice is significant and where it is not.
An example of this ambiguity: Tour guides may choose to take their clients to certain rest stops because they know that the restaurants there will provide them with a free meal. This is a common practice, but is it permitted? There is a certain conflict of interests here, for the clients pay the guide to provide them with the best possible service, and not for him to take them to a place that is good for him. Another common example is that of manufacturers who treat purchasing agents to vacations and the like, so that the latter will buy from them. Once again, it is not at all clear that this is permitted.
Let us return to the Gemara which rejected the proof from the fishermen, noting that there is something unique about the case of the fish. What is special about that case?
Rashi explains that the fish swim towards the food that the first fisherman put in his nets, and therefore they are on their way to him. Therefore, when the second fisherman comes and takes them, it is as if he took them directly from the first one, and therefore it is forbidden.
Rabbenu Gershom explains that the Gemara is discussing a case where the fish are already in the first fisherman's net, but when the second fisherman spreads his net, the fish go to it, and therefore it is a case of robbery, because the first fisherman already acquired them.
Among the Acharonim, there are two important responsa on this issue: Responsa ha-Maharshal, no. 36, and Responsa Chatam Sofer, Choshen Mishpat, no. 79.
The Chatam Sofer cites three viewpoints of the Rishonim on this issue: Rashi, Ramban and Ri Migash. We shall not go into the details of this responsum, but only summarize the conclusions that emerge from it:
1) The ruling regarding the fishermen was accepted as law.
2) The Ri Migash explains that in the case of the fish, the second person totally destroys the first person's livelihood, and this factor leads to the prohibition to compete. That is to say, the law depends on the circumstances only if the first person will continue to earn a living may the second one open a competing business in close proximity to him. Many Posekim accept this approach and rule that if the opening of the competing business will make it totally impossible for the first person to earn a livelihood, it is forbidden.
In the United States, a synagogue rabbi receives a salary from his congregation. Rav Moshe Feinstein was asked about a case where a certain person opened a competing synagogue, a move which seriously impaired the livelihood of the rabbi of the existing synagogue. He ruled that this was forbidden.
It should be noted that the injunctions mentioned above relate to cases where the first person is unable to compete with the second person due to circumstances beyond the control of the first person. But if everybody prefers to patronize the second business, because, for example, the service there is better this is certainly permitted, even if it totally destroys the first person's livelihood, because he can compete by improving his service.
In addition, we must consider the practical ramifications of Rashi's viewpoint, in cases where people are already in the middle of a certain process, e.g., they are in line to board a bus, and someone comes and convinces them to go with him at a cheaper price according to Rashi, this should be forbidden.
There is another factor that must be taken into consideration: The Rema (Choshen Mishpat 156) rules that if the community needs a certain service, somebody may open a competing business, even if he lives outside that community. This is a common phenomenon, e.g., where grocery stores in small communities charge unreasonably high prices.
Another talmudic passage dealing with this topic is found in Kiddushin 59a:
Rav Gidal was negotiating for a certain field, when Rabbi Abba went and bought it. Thereupon R. Gidal went and complained about him to Rabbi Zeira He said to him: If a poor man is examining a cake and another comes and takes it away from him, what then? He said to him: He is called a wicked man. Then why did you, Sir, act so? He said to him: I did not know [that he was negotiating for it].
If somebody planned or prepared to make a purchase, it is forbidden for another person to come and "snatch" it from him, even though no theft is involved, strictly speaking.
The Tosafot (ad loc.) ask what the connection is between the case involving the field and the case of the poor man examining a cake. Rabbenu Tam explains that the case of the cake does not involve an ownerless item, but rather with a poor man who wishes to buy a cake. But if the cake is ownerless, it is permitted. The Tosafot ask: But surely in the case of the fishermen, the fish are ownerless, but nevertheless the second fisherman is forbidden to spread out his net in close proximity to that of the first fisherman!
The Tosafot explain that the case of the fish is different, because it does not deal with a one-time purchase, but rather with disrupting a persons profession in an ongoing manner, and that is the reason for the stringent ruling.
An important principle emerges from this: In the case of the poor man examining the cake, the prohibition falls not on the seller, but on the buyer, i.e., that a person who wishes to buy something is forbidden to interfere with the purchase of another person. This implies, among other things, that if a person applied for a job and is close to getting it, or if a person tried to enter into a contract on a purchase, having reached the final stages, another person may not come and try to block the agreement with a better offer.
The Shulchan Arukh (Choshen Mishpat 237) rules on this matter as follows:
If someone was trying to purchase or rent something from another person, whether landed property or movables, and another person came and purchased it, the latter is called a wicked person. The same applies to someone who wishes to hire himself out to another person.
The Rema rules similarly in Choshen Mishpat 386:3:
If Reuven lent money to a non-Jew with collateral, and Shimon went and told the non-Jew that he would lend him the money at lower [interest], and [the non-Jew] returned the money to Reuven, [Shimon] is exempt from liability, because it is [only] indirect damage, but nevertheless he is called a wicked man.
The Rashba in a responsum (cited by the Bet Yosef) was asked about a person who regularly bought his clothing from a particular tailor, and a competitor came and tried to steal the client away from him. The Rashba writes that while a monetary claim cannot be brought against the second tailor, he is to be strongly rebuked and reproached.
To summarize, competition is permitted, for not every competition is regarded as unfair interference with another person's livelihood. When, however, action is taken that will clearly lead to the economic collapse of another person, it is absolutely forbidden.
(Translated by David Strauss)
* Rav Levi did not review this version of the shiur.