Life presents us with challenges as we go about our daily activities: working, shopping, bringing up our families, and more. We try to do all this as ehrliche Jews, keeping to the halachos. Sometimes, though, we are not aware that halacha has something to say about a given circumstance. Take the seemingly esoteric – though actually quite common – situation where one person is trying to obtain something and another person undercuts him or her and takes that item instead. Let’s examine a few such scenarios.
Scenario 1: Rivka and Miri are at a park enjoying the scenery.
Rivka sees a pretty headband on the grass and picks it up and shows it to Miri.
“Should I take this? I am not sure I like it; what do you think?” she asks
Miri. “Yes, it is very pretty; I really like it,” says Miri. “If you are not
sure if you want it, I hope it is okay if I take it for myself.”
Scenario 2: Eli and Moishe are glad to see a familiar face when
they happen to meet at Best Buy’s Black Friday sale. They chuckle to discover
that they are both there to pick up an expensive new phone that has been
greatly reduced in price. As Eli comes to the phone display, he sees that the
phones are nearly sold out. He picks up the last one and shows it to Moishe. Eli allows Moishe to examine it. Eli also
mentions that even though it is a good deal, he is not sure if he wants to buy
it, since his old phone still works. “Actually,” says Moishe, “I need a new
phone and could really use this one. I hope you don’t mind if I purchase it;
I’m sure you will be able to get another one in the future.”
Scenario 3: The Cohen family is badly in need of a bigger house.
They search long and hard, finally finding one that fit their needs perfectly
and is in a popular neighborhood; they put in a bid, which is being considered
by the seller. The Stern family is also interested in this house and upon
hearing about the Cohens’ offer, the Sterns put in a higher bid.
Scenario 4: Yocheved is desperate for a cleaning lady before
Pesach. She knows of an excellent one who works for some of her acquaintances.
Unfortunately, the woman has limited availability. Yocheved offers her higher-than-market
pay, causing her to stop working for another family.
Scenario 5: The Blooms’ son needs help in Gemara. An outstanding
tutor that Mr. Bloom knows of is booked up. He offers the tutor more than the
going rate to come teach his son. The tutor accepts, which effectively makes
the tutor drop another child.
The Halacha: from
Bavel to Ashkenaz
All these scenarios fall under a
halachic concept known as ani mehapech
beharera (a poor man who is looking to acquire a cake), a situation in
which one person undercuts another one who is trying to obtain something.
The Gemara in Kiddushin (59A)
discusses a situation in which an Amora
(scholar of the times of the Gemara) named Rav Giddel was trying to purchase a
field. Another Amora, named Rabbi
Abba, bought the field before Rav Giddel was able to execute the purchase. Rav
Giddel complained about this to Rav Yitzchak. Rav Yitzchak confronted Rabbi
Abba and said to him, “Ani hamehapech becharara
uva acher venatla hemenu nikra rasha – A poor man who is trying to acquire
a cake and someone else takes it is considered wicked.” The Gemara concludes
that Rabbi Abba was not aware that Rav Giddel was looking to acquire the field.
After this incident, however, neither Rav Giddel nor Rabbi Abba wanted to take
possession of the field, so it became dedicated to use of the local talmidei chachamim.
This Gemara states clearly that if
someone is trying to acquire an item and someone else takes it, the one who
takes it is considered a rasha,
wicked. The Rishonim (Medieval commentators) add some parameters to this halacha.
According to Rashi, it is morally
improper – and forbidden – for Person B (Miri or Moishe) to take the headband
or phone away from Person A (Rivka or Eli) – even if Person B is giving up any
opportunity to obtain such an item. (Although the Gemara is discussing a poor
man, the poskim (halachic
authorities) understand that even if person A is not poor, it is still improper
to take the item from him or her.)
Tosafos, however, bring other sources that seem to indicate that it
is sometimes permitted to take an
item that someone else has been looking to obtain. Tosafos, in the name of Rabbeinu Tam, make this distinction: If the
item that Person B is taking is otherwise unavailable to him, he is permitted
to take the item that Person A is looking for. However, if Person B can purchase
the item elsewhere, he should not take it.
In summary, Rashi never allows
person B to take an item that person A is trying to get. Rabbeinu Tam does
allow person B to take an item that is ownerless or if he will not be able to
find it elsewhere.
If the item is being sold and
person B can purchase it somewhere else, even Rabbeinu Tam agrees that it is
forbidden to take the item from someone involved in the process of purchasing
it.
The Shulchan Orach, in Choshen
Mishpat (Siman 237), brings down both opinions. The Rema adds that, although
one who conducts himself according to the opinion of Rashi is praiseworthy, the
halacha follows Rabbeinu Tam, and one may be lenient.
Rabbi Moshe Feinstein writes that
it is proper for a G-d fearing individual to be stringent like the opinion of
Rashi. (Igros Moshe Even Ha’ezer 1:91)
What’s the Halacha
Today?
Let’s take the scenarios one by one and see what halacha has
to say about them.
In the first scenario, Rivka is
considering taking an ownerless item, and then Miri takes it for herself.
According to Rashi, this is morally improper and prohibited. According to
Rabbeinu Tam, Miri is permitted to take an ownerless item that she is not able
to obtain elsewhere. The strict halacha follows Rabbeinu Tam, and it is
permitted to take the item.
However, it is worth considering
that, in addition to being commendable to be stringent, it also may not be
worth the ill feeling which is caused. While Miri might be getting a pretty accessory,
she probably will not be gaining a friend.
In the second scenario, the store
is selling an item at a discount. If Eli is trying to purchase the last phone,
is Moishe allowed to take it from him? It is questionable whether we would
allow Moishe to take it from Eli. Eli has not executed a formal purchase, but he
is definitely considering purchasing the phone. Moishe can still buy the item
elsewhere, but it will be cost more. Is the cost savings to Moishe enough of a
reason to allow him to take it from Eli? The Rema rules leniently, since Eli
has not formally acquired the phone, and Moishe will not be able to purchase
another phone at such a low price. However, the Shach brings an opinion to be
stringent in such a case since, ultimately, Moishe can still purchase the item
elsewhere, even though it will cost more.
What about the third scenario, where
the Cohens and the Sterns are competing for the same house? This situation contains
an additional component in that the Cohen’s offer has not yet been accepted.
The halachic authorities discuss whether it is forbidden to make an offer on an
item that someone else is attempting to purchase when that buyer has not
finalized a price with the seller.
According to the Rema, it is
permitted for the Sterns to try to purchase the house so long as the Cohens and
the seller have not yet agreed upon a price. However, once they have finalized a
price, the Sterns may not come in.
However, there is an opinion
mentioned on the Pischei Teshuva that
even if the price between the Cohens and the seller has not been finalized, as
long as they are actively engaged in the process of negotiating a price, the
Sterns may not come in.
The governing concept in all of
these cases is that it is wrong to come along and interfere when the first
party, already in the process of buying it, would have been able to complete
the purchase if not for the second party interfering.
In the fourth scenario, Yocheved
hires a worker who is employed by someone else. In this case, the halacha according
to both Rashi and Rabbeinu Tam is that one should not solicit a worker who is already working
elsewhere. Since there is more than one worker available for a job, Yocheved
should not take this worker, even if she will have to look harder to find a new
worker. This scenario is very applicable to these COVID days, as schools and
organizations are short-staffed and may try to hire employees who are employed
by other organizations.
The psak would change if the worker is looking to switch jobs. If the cleaning
lady is dissatisfied at her first place of employment and is looking to leave, Yocheved
may engage her. In that case it is not considered to be taking someone else’s
worker.
In the last scenario, Mr. Bloom
takes a tutor that someone else has been employing. At first glance, this would
seem to be forbidden as the Blooms can find another tutor for their child.
However, the halachic authorities (SM”A 237:2) explain why this may be
permitted: It is possible that a student will learn better with a given tutor.
The abilities of this tutor may be a better match for the student, or this
tutor has an ability to reach this child in a way that another teacher cannot. If
so, since the labor needed for this job is not
available elsewhere, taking away that teacher or tutor would be permitted
according to Rabbeinu Tam.
The above guidelines about an
employer-employee situation only apply if there is no employment contract or
commitment between the parties for a specific time period. If there is such a
commitment, the halacha will be different (see Nesivos HaMishpat 237-Chiddushim
#5).
It should be emphasized that each
of these situations requires the guidance of a competent halachic authority
before allowing oneself to be lenient. In addition, aside from the strict halachic
component, there is also the likelihood that taking something away from someone
else will cause friction between the two parties, which is always an overriding
consideration.
To conclude, all societies are
faced with the problem of people competing for goods and services. Often, they
solve these dilemmas by resorting to such sayings as “finders keepers, losers
weepers,” “first come, first serve,” “might makes right,” “tough luck,” or
“survival of the fittest.” How fortunate we are to have the Torah, which
infuses even the most mundane occurrences with ethics and spirituality. Ma ashreinu, ma tov chelkeinu…!
Rabbi Rosenfeld is the
Administrator of the Baltimore Bais Din. He can be contacted at RYR@baltimorebaisdin.org. This
article has been reviewed by Rabbi Mordechai Shuchatowitz, head of the
Baltimore Bais Din.
