Monday, March 24, 2008

Hasagas Gvul - Yored L'soch Umnaso Shel Chaveiro

Many of the halachos of hasagas gvul are discussed in the gemara in Baba Basra 21b. From certain sources it seems that competition is permitted according to halacha. In other sources, however, there seems to be some restrictions. The poskim discuss exactly where to draw the line between what is mutar and what is assur.

The Chavos Yair (Teshuvos Siman 42) in discussing the issue of hasagas gvul writes as follows:

It is permitted to enter [to compete] the trade of your friend except if you are a member of another town [and hence do not pay taxes to the local authorities] ... so is the custom all over Israel.

In other words, according to the Chavos Yair, one is allowed to compete freely in business and it is not considered as part of the issur of yored l'soch umnaso shel chaveiro at all.

The Chasam Sofer in Choshen Mishpat Teshuva 61 brings this opinion of the Chavos Yair and argues with it. He writes as follows:

Certainly a member of the town [may compete] against another member of the town - even l'chatchila it is mutar and this is not at all called yored l'soch umnaso shel chaveiro... because he can do in his own [property] and he can do in his own [property] and therefore it is not called yored l'soch umnaso shel chaveiro... however in a case like ours where through his entering the profession he pushes aside [the competition] completely that it is impossible for both of them to gather [enough customers], and it turns out that he is pushing aside [the competition] completely this is yored l'soch umnaso shel chaveiro mamash etc.

Thus, the Chasam Sofer is ruling that it depends. If through your opening of a business you will destroy the other person's business, then, in fact, you are "descending" into the other person's livelihood and it is prohibited. However, if there is room for both businesses to exist, there is nothing wrong with competition.

Rav Moshe Feinstein in Iggros Moshe Choshen Mishpat 1:38 quotes this psak of the Chasam Sofer when dealing with the issue of a "breakaway minyan". Rav Moshe in the teshuva is discussing a shul where a number of the congregants no longer like the Rabbi. This particular Rabbi had actually bought the shul property about three years prior and now feared that the breakaway minyan would cause him a great loss of money, as his shul membership would now significantly decrease.

Rav Moshe rules, based on the above Chasam Sofer, that the congregants are not allowed to break away from the shul as they will be cutting off the livelihood of the Rabbi. It is exactly a situation like the Chasam Sofer's where the area cannot sustain two shuls and, therefore, opening a competing minyan would not be allowed. Rav Moshe argues further that in this case the second minyan is not even a business venture in any sense. Thus, the second minyan is essentially destroying the first Rabbi's parnassah not even for the purpose of creating a parnassah of it's own, and thus prohibited all the more so.

In another teshuva in Choshen Mishpat (2:40), Rav Moshe similarly rules that if a certain vaad of Rabbanim are already giving a hashgacha somewhere, another vaad cannot come in and try to take over the hechsher. Again, this is a situation of yored l'soch umnaso shel chaveiro and therefore prohibited.

Along the same lines, Rabbi Yitzchak HaKohen Kook discusses a situation where a community was trying to pressure a Rabbi to resign his position. He writes as follows (Techumin Vol. 5 Page 285, 286):

...On the basic issue...had I not seen these words uttered...I would not have believed ... it has not been seen nor heard in the Jewish community even in relation to a minor position, and certainly not as it relates to the crown jewel of the rabbinate in a great and holy congregation in Israel. It is, of course, a widely held halacha that all publicly-appointed officers, and certainly in matters of sanctity, carry within themselves the aspect of inheritance even after the life of the office holder...and how can we allow such travesty to diminish, G-d forbid, the position of a great Rav in Israel who leads his community in the path of Torah and mitzvot for remove him from his post through pressure. It is certain that all things that are being done to pressure you to agree and submit to this awful step have absolutely no validity and are considered like naught ... And even if you receive some favor or compensation for giving up your rights it is meaningless... For it is well known that the pain of a person to see his honor and dignity taken away and given to others... is a terrible thing to behold... And the pain certainly is great when one's dignity is taken away without any cause... And I am certain that the rabbi [who is trying to usurp] will withdraw.

And Rav Moshe too writes in Choshen Mishpat (2:34):

It is quite simple and certain that whoever was elected as rabbi in any synagogue... cannot ever be removed from his position ...even if the contract stipulates a specific time period.

*For more on this topic see the article on Hasagas Gvul by Rabbi Simcha Krauss in the Journal of Halacha and Contemporary Society Volume 29. And, of course, for final rulings seek the wisdom of your local trusted halachic expert.