Halakhot of Investing in the Stock Market (4)

 

FOURTH INSTALLMENT - TRADING IN FORBIDDEN FOODSTUFFS 

I.  PREFACE

 

In the first installment of this shiur, we discussed the GENERAL question of the ownership status of the shareholder.  As we explained, one point of view sees the shareholder as an owner of the company and of its assets - like an ordinary partner.  The other point of view views the shareholder as a kind of creditor - he has made an investment and will receive a return, but the true owner of the company is someone else: a controlling interest, the management, or perhaps even the company itself, recognized as a legal person in halakha as it is in the secular law.

 

We also called attention to the many ways in which a shareholder resembles a silent partner (noten iska), whose halakhic status is well established.

 

We concluded that while many lenient opinions exist,  the most prominent contemporary authorities are not willing to create a blanket exemption from halakhic responsibility for the shareholder, but rather view him as a partner to at least some extent.  We also pointed out that the power of the minority shareholder and his SECULAR legal status as owner are rather greater than many people are aware.  However, even the stringent opinions acknowledge the high degree of insulation of the shareholder from company operations.  This insulation may lead to various leniencies which, however, need to be discussed on an individual basis.

 

The second installment focused on problems of forbidden interest between Jews; the third installment discussed chametz on Pesach.

 

This installment will focus on the problem of owning shares in a company which trades in forbidden foodstuffs.

 

II.  DEFINITION OF THE PROBLEM

 

The Mishna (Shevi'it 7) informs us: "We may not trade in fruit of the Sabbatical (shemitta) year; nor in [sanctified] first-born animals, nor in teruma."  All these foods products are permissible to eat (though teruma is permissible only to kohanim), but since eating them is a kind of observance ("kiyum"), therefore we do not reduce them to mere merchandise.  (A comparable rule in secular law is the prohibition in most countries to buy and sell human organs or - in many places - blood.  Any person may donate an organ, and one may donate to anyone the donor desires, but no payment may be given.)

 

The mishna then continues: "Nor in unclean or improperly slaughtered animals, nor in [forbidden] insects and vermin ...  Trappers of animals and birds and fish who happened upon (nizdamnu) unkosher species are permitted to sell them.  R. Yehuda says, likewise someone who found a one-time opportunity in these may buy and sell them, as long as this is not his profession; but the Sages forbid this."

 

The source of the prohibition is traced in the Talmuds to the section in parashat Shemini which deals with the prohibition on eating insects.  In the Babylonian Talmud (Pesachim 23a) the source is found in the words (Vayikra 11:11) "and they shall be abominable TO YOU," indicating that even though they are abominable, they are "for you," meaning that they may be traded if we "happen upon them" (nizdamen).  The Yerushalmi (Shevi'it 7:1) makes a slightly different inference from the same portion, and in addition limits the prohibition only to those animals which are generally eaten, and only to those which are forbidden from the Torah.  These limitations are generally accepted.

 

This prohibition is the subject of siman 117 in Shulchan Arukh Yoreh De'a.

 

Since this law is inferred from Torah verses, it would seem that it is a Torah prohibition, and this is the understanding of the Tosafot and the Rosh (Pesachim 23a) and most Rishonim.  However, the Rashba (Responsa III:223) understands that it is of Rabbinic origin, and this seems to be the understanding of the Shakh (YD 117:2 - though it is possible the Shakh considers it a "gezeira deoraita," a Torah law whose purpose is to safeguard some other law).

 

III.  NATURE OF THE PROHIBITION

 

It is important to understand that the prohibition is not to own the forbidden foods, nor to buy them nor to sell them but rather to "deal" in them.  This is similar to the case of fruits of the shemitta year or teruma which are not forbidden in purchase or sale per se.  Connected with this understanding is a unique leniency and, according to some authorities, a unique stringency.

 

The LENIENCY, as we have already mentioned, is that if we "happen upon" these items we may indeed sell them and even profit from them.  The example mentioned in the Mishna is a trapper who sets his trap for a permissible animal and finds a forbidden one - for example, a fur trapper who sets a beaver trap (beavers being used for fur but not for food) and catches a pig.  This category was broadened by many important rulings in the Acharonim, as we shall see.

 

The STRINGENCY is a corollary of the leniency.  On the one hand, one may buy and sell something without that merchandise being one's business; conversely, one may be considered as doing business in something without actually buying and selling it.  This at any rate is the position of the Terumat HaDeshen (siman 200, accepted by the Rema YD 117:1), who rules that it is forbidden even to lend money using forbidden items as collateral.  Such a lender is acquiring an interest (though not ownership) in forbidden goods as part of his ongoing business, and so he is dealing in them.

 

The Chatam Sofer in two responsa (YD 104 and 108, cited in Pitchei Teshuva 117:6) adumbrates the scope of this prohibition according to the following line of reasoning:

 

1.  If the prohibition relates to the dealing per se, then it would be permissible to come into contact with the forbidden items on a regular basis, as long as the Jew is not buying or selling.  So being a mere broker would be permissible.

 

2.  If the prohibition is a fence to discourage eating the items, then any dealing would be permissible as long as there is no contact with the forbidden items.

 

The Chatam Sofer concludes that we need to avoid both problems, so OWNERSHIP and CONTACT are both forbidden.  But being a broker who does not come into contact with the food items is permissible even on a regular basis, if there is an irreplaceable earning opportunity in this business.

 

The Chatam Sofer further rules that there is no "ownership" for the purposes of this prohibition if it has not been acquired by one of the traditional acts of "kinyan" - halakhic acquisition.  (This ruling is very surprising, because the Chatam Sofer explains in another responsum (II-YD 314) that the acquisitions customary among merchants (sitomta - we learn these are valid from the gemara BM 74a) are as valid as Torah kinyanim; he further asserts that acquisitions recognized in the secular law also enjoy this status.  I urge anyone who can find a solution to this question to write me with their ideas.)

 

To this we may add a third consideration:

 

3.  It is unseemly (mekhu'ar) for a Jew to make his regular living from forbidden items.  This is the basis for the Terumat HaDeshen's ruling that even using these items as collateral is forbidden; however, since this consideration is more subjective in nature, the THD rules that one may be lenient in the face of loss.

 

We mentioned before that the Acharonim considered the definition of "happenstance" (nizdamen) to be a flexible one.  For example, the Taz (YD 117:4) discusses the case of someone who buys an entire town (a kind of tax farming) and part of the income of the town is from pigs.  The Taz permits this since the pigs are an incidental part of the deal.  The Pitchei Teshuva (YD 117:6) discusses Jews who grow or trap animals for their skins, but after skinning sell the meat as well.  In this case, the Jew is selling forbidden meat on a regular basis in his ongoing business, but several Acharonim permit this since the main intention is for the hide.

 

We have pointed out the similarity of a shareholder to a silent partner.  Silent partnerships where the non-Jewish dealing partner deals in forbidden merchandise are discussed in many responsa.  The Zera Emet (YD 94) cites a dispute between the Devar Shemuel (144) who forbids this and the Devar Moshe (YD 13) who is lenient.  The Zera Emet himself tends to the lenient view.  The Beit Yitzchak (YD 144) cites the Zera Emet, but rules stringently.

 

IV.  APPLICATION TO A SHAREHOLDER

 

In the previous shiurim, we explained that one approach views a shareholder as a mere creditor and the company assets as collateral, and that according to this view there is little problem in owning shares of a company which lends and borrows at interest or owns chametz during Pesach.  However, this approach does not get us off the hook completely when we are talking about dealing in forbidden foods, since, as we have seen, even lending against collateral of forbidden merchandise is considered unseemly.

 

On the other hand, even if we view the shareholder as an owner/partner, there is much room to be lenient:

 

1.  If the forbidden foods are not the main line of business of the company, then it seems that this would fall into the category of "nizdamen" according to the rulings found in the Taz and the Pitchei Teshuva. 

 

2.  Even if they ARE the main line of business, the shareholder certainly never carries out a customary acquisition on the forbidden merchandise and never comes in contact with it, so according to the Chatam Sofer we may be lenient if there is a unique profit opportunity.  (The same line of reasoning would seem to apply to commodity options and futures.  The vast majority of these instruments are "closed" - settled for cash - and not "exercised" - used as a way of actually acquiring the commodity.)

 

In this case we may ask if the problem of "unseemliness" exists.  If the Terumat HaDeshen was worried about the APPEARANCE of unseemliness - that everyone knows that Yaakov Israel goes around putting liens on people's pigs - then there is no problem in our case because stock ownership is so anonymous.  If the problem is with respect to the investor himself - a Jew should not be depending for his livelihood on pork bellies - then the problem exists with any company whose MAIN line of business is forbidden foodstuffs, and then we are inclined to be lenient only if there is a case of loss.

 

Once the shares have already been acquired, it may be that we may view the shares THEMSELVES as "happenstance" - nizdamen, and then there is no need to sell them even if the business of the company is PRIMARILY involved in forbidden foods.  This is particularly true if the shares were acquired as a gift (see She'elat Yeshurun YD 16), or if they are part of a "standard" portfolio such as a mutual fund.

 

V.  RELATED PROHIBITIONS

 

This discussion relates only to products which are in themselves permissible to buy, own, sell and benefit from, but may not be traded in.  We have not discussed the problem of "issurei hana'a" - items which a Jew may not benefit from at all.  Common examples include forbidden mixtures of meat and milk (obviously relevant to the question of a Jew purchasing stock in MacDonalds) or ordinary non-Jewish wine according to the Shulchan Arukh (but the Rema is lenient - YD 123:1).  Other items of forbidden benefit such as "orla" or corpses and their appurtenances are less common.  The problem of issurei hana'a - on the Torah and rabbinic level - was discussed in the previous installment, regarding chametz on Pesach.

 

The prohibition of anything relating to idolatry is much more severe.  There are two reasons for this.  One is because the nature of the forbidden benefit is different and more serious, as the Torah says (Devarim 13:18) that no trace of the ban - "me'uma min ha-cherem" - "may cling to one's hands."  The other reason is that idolatry is forbidden even to non-Jews, so trading in its appurtenances may involve us in encouraging them to sin.  We will not discuss this problem.