(2012/5772)
Two weeks ago (in an essay archived at www.koltorah.org that now may be accessed at www.tabc.org) we began our discussion of Ani HaMehapeich BeCharrarah (Kiddushin 59a) by outlining some basic issues regarding this most applicable and common Halachic issue. The most basic issue we discussed was the dispute between Rashi (who has an expansive view of this topic) and Rabbeinu Tam (who has a more limited view of this topic). This week we shall conclude our discussion with six more highly relevant points in regard to this Halacha.
A Discounted Item
Rama (Choshen Mishpat 237:1) writes that Rabbeinu Tam would condone interference with a purchase if the item is available at a discount. The reasoning is that a similar item will not be available elsewhere at such a lowered price. Maharshal (Teshuvot number 36) clarifies that the discount must be considerable to qualify for this ruling. The Shach (ad. loc.) disagrees, citing Ramban’s ruling (Bava Batra 54b s.v. U’She’Einah) that no exception is made if the item is discounted as long as the item is available for purchase elsewhere. Aruch HaShulchan (ad. loc.) rules in accordance with Shach, arguing that Chazal did not distinguish between sale prices; availability is the sole criterion. Indeed, it is often difficult to establish whether an item is “significantly” discounted, and if Rama’s ruling were to be followed, the prohibition to interfere with a purchase would be eviscerated. Nonetheless, this matter is also left unresolved, as Shulchan Aruch HaRav (Hilchot Hefkeir VeHasagat Gevul 10) rules in accordance with Rama and Rav Bloi (Pitchei Choshen volume four, chapter nine, section fifteen) does not present a conclusive ruling on this matter. Once again, a rabbinic court is not empowered to enforce the ruling of Ramban, Shach, and Aruch HaShulchan, since many dispute their opinion (Pitchei Choshen ad. loc. footnote 36). Nonetheless, relying upon this ruling of Rama is not regarded as pious behavior.
Rav Bloi (ad. loc.) raises the possibility of intruding on a negotiation for a house available for rent or sale during real estate off-seasons (such as winter) when such opportunities are rare. Rav Bloi does not issue a definitive ruling regarding this issue. Another issue raised by Rav Bloi (ad. loc. footnote 29) is a case where the one who intrudes wishes to make a larger purchase (for example, a larger portion of land) than the first potential customer. He considers the possibility of permitting such an intrusion because Jewish Law forbids interference only when one interferes in the purchase of the same item. Perhaps the larger potential purchase renders it a different purchase, thus placing it outside the scope of the prohibition of improperly competing for the same item. Rav Bloi does not present a definitive ruling about this matter either.
Relief in Beit Din
The Gemara (ad. loc.) refers to one who interferes improperly in an acquisition as an evildoer (Rasha). What are the implications of being classified as a Rasha? Sema (C.M. 237:1) explains that it is announced in the synagogue 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. Is a rabbinic court authorized by Jewish Law to compel the wrongdoer to provide relief to his victim? Ramban (ad. loc.) cites Rabbeinu Tam, who rules that a Beit Din may compel the perpetrator to return the item he obtained improperly. Ramban, however, rejects this opinion, as does Maharshal (ad. loc.). Rav Bloi (ad. loc. section 12) cites both opinions but does not resolve this matter. Nonetheless, Meiri (Kiddushin 59a s.v. Lo Sof Davar) rules that “The behavior of a pious and scholarly individual is to return [the item to the victim of the intrusion].” Indeed, Rav Feinstein (Teshuvot Igrot Moshe C.M. 1:60), in a case of intrusion brought to him for adjudication, pressured (but did not compel) the restoration of the status quo prior to the interference.
Unintentional Intrusion
Chemdat Shlomo (Teshuvot number 4) writes that it is “obvious” that if one unwittingly interfered with a negotiation he is not classified as an evildoer. Aruch HaShulchan (C. M. 237:2) rules in accordance with Chemdat Shlomo. Rav Moshe Feinstein (ad. loc.), however, infers from the absence of such a distinction in the Shulchan Aruch that one is considered an evildoer until he rectifies the situation, even if the intrusion was made unintentionally. Rav Feinstein argues that even Chemdat Shlomo would not excuse someone who had sufficient knowledge of the situation such that he should have clarified that there were no ongoing negotiations.
Intrusion by another Vendor
The Talmud, its commentaries, and Jewish Law codes speak primarily of an intrusion by another potential buyer. However, Rav Bloi (ad. loc. footnote 32) notes that Shulchan Aruch (ad. loc. C.M. 237:2) forbids a tutor from offering his services to one who has already hired another tutor. Accordingly, Jewish Law regards a vendor who intrudes on another’s efforts to make a sale as an evildoer until he rectifies the situation.
Financial Means of the Parties
The Gemara (ad. loc.) phrases the prohibition as “a poor man” pursuing an item. Accordingly, Rama (ad. loc.) restricts the prohibition to interfering with a poor man’s attempt to acquire an item. An exception, Rama notes, is if the item is not available elsewhere. In such a case, one may not intrude even upon a wealthy individual’s efforts. Aruch HaShulchan C.M. 237:3) maintains that the Rama’s ruling applies both according to Rashi and Rabbeinu Tam’s rulings. However, Rav Bloi (ad. loc. footnote 30) cites an opinion that regards this comment of Rama to apply only according to Rashi. However, Rabbeinu Tam would forbid intrusion on a purchase of an item that is available elsewhere even if the first potential buyer is a wealthy man. Thus, Rav Bloi in his Pitchei Choshen does not distinguish between a poor or wealthy individual, since Rabbeinu Tam’s opinion is accepted as normative. However, for one who chooses to adopt the stricter opinion of Rashi regarding intrusion on someone acquiring an item that is not available elsewhere, he need do so only regarding interference with a poor individual’s efforts.
Seller’s Preference
Rav Bloi (ad. loc. footnote number 32) is inclined to believe that a seller is obligated to inform a potential buyer that someone else is in the process of procuring the item. Otherwise, the seller would be facilitating the second customer’s violation of the prohibition to interfere with a sale. However, Rav Bloi suggests, if the new potential customer is willing to offer more than the first customer, he might not have an obligation to disclose the existence of the first customer’s efforts. Moreover, Rav Bloi outlines circumstances where the seller enjoys the right to prefer the second customer. For example, if an agreement was made (but no formal act of acquisition was performed) to rent a home to a large family and subsequently the homeowner discovered that newlyweds were also interested in renting the home. The newlyweds were far more desirable renters, as there would be significantly less wear and tear on the house. Rav Bloi writes, “It appears from the words of the Halachic authorities that the seller enjoys the right to further his own interests.”
Similarly, if someone reached an agreement with a customer to purchase a car and the customer stated he would return the next day to formally seal the deal, the seller might be permitted to sell that car to a customer who arrives and is willing to purchase it immediately. The seller seems to enjoy the right to prefer to sell his wares to a guaranteed customer over a customer whose purchase is uncertain. Moreover, Rav Bloi cites an opinion that permits the seller to change his mind if his son wishes to purchase the item he promised to a potential buyer. Nonetheless, there is an ethical (albeit non-enforceable) imperative in Halacha (Shulchan Aruch C.M. 204:7 and Rama ibid. number 11) for a buyer and seller to honor even their verbal commitments.
Conclusion
Halacha seeks to strike a balance between a free marketplace and ethical behavior on the part of the market participants. Talmudic commentaries and Halachic authorities throughout the generations have limited the full application of the prohibition of unjust interference. In doing so, the goal of maximizing a free marketplace is achieved. Nonetheless, there are a plethora of gray areas in which Halacha offers leaves the ultimate decision in the hands of the parties themselves. There is a baseline standard to which the violator is regarded as evil and there is a higher standard which is regarded as Middat Chassidut (pious behavior). The individual is allowed the choice as to whether he should follow the baseline standard or the pious standard. Thus, while Halacha forbids interference in a purchase in many situations, in many others the decision is left to the ethical sensitivities of the individual to achieve a balance between the Torah’s lofty ethical goals and the practical necessities of life.