Bots, Bureaucrats, Interface administrators, Suppressors, Administrators, wiki-admin, wiki-controller, wiki-editor, wiki-reader
1,190
edits
Unfair Competition: Difference between revisions
From Halachipedia
→Stealing Someone Else's Free Item
| (8 intermediate revisions by the same user not shown) | |||
| Line 50: | Line 50: | ||
#If the second person can find a similar deal to buy or rent somewhere else he should not take it away from the first person.<ref>Bet Yosef 237, Pitchei Choshen Geneva 9:15</ref> | #If the second person can find a similar deal to buy or rent somewhere else he should not take it away from the first person.<ref>Bet Yosef 237, Pitchei Choshen Geneva 9:15</ref> | ||
#If the second person is interested to buy a bigger quantity or a piece of real estate that is bigger land than that of the first person he could do so since he isn’t taking the first person’s deal.<ref>PitcheI Choshen Geneva ch. 9 fnt. 29 citing Chikrei Lev CM 103</ref> | #If the second person is interested to buy a bigger quantity or a piece of real estate that is bigger land than that of the first person he could do so since he isn’t taking the first person’s deal.<ref>PitcheI Choshen Geneva ch. 9 fnt. 29 citing Chikrei Lev CM 103</ref> | ||
#If he can't find the same deal somewhere else some hold that he could try to supersede the first person to buy the item first,<ref>Rama CM 237:1</ref> while some forbid this.<ref>Shach 237:3 argues on the Rama based on the Ramban. Avnei Nezer CM 17 sides with the Rama, while the Aruch Hashulchan 237:1 accepts the Shach.</ref> | #If he can't find the same deal somewhere else some hold that he could try to supersede the first person to buy the item first,<ref>Rama CM 237:1. Sefer Ani Hamehapech Bcharara p. 35 follows this even for Sephardim. See, however, Mishpat Shlomo 4:28.</ref> while some forbid this.<ref>Shach 237:3 argues on the Rama based on the Ramban. Avnei Nezer CM 17 sides with the Rama, while the Aruch Hashulchan 237:1 accepts the Shach. Mishpat Shlomo 4:28 is strict like Shach. Igrot Moshe EH 1:91 explains that Shulchan Aruch EH 35:9 holds like Shach, while Rambam Ishut 9:17 holds like Rama.</ref> | ||
#If a person finds a good piece of real estate and someone else was already engaged to buy it there is a dispute whether it is right to try to acquire it first.<ref>Pitchei Choshen Geniva 9 fnt. 36 writes that it is unclear if a person in real estate finds a house on sale and it seems that it is a good deal and it is a big effort to find something similar whether he can supersede someone who already is going for it. He writes that it seems to be a dispute between the Maharshal and Sharit Yosef but he doesn't offer a resolution.</ref> | #If a person finds a good piece of real estate and someone else was already engaged to buy it there is a dispute whether it is right to try to acquire it first.<ref>Pitchei Choshen Geniva 9 fnt. 36 writes that it is unclear if a person in real estate finds a house on sale and it seems that it is a good deal and it is a big effort to find something similar whether he can supersede someone who already is going for it. He writes that it seems to be a dispute between the Maharshal and Sharit Yosef but he doesn't offer a resolution.</ref> | ||
#If a person already had a license from the government to do job doing a certain job it is forbidden to try to outbid him and steal that license to get that job.<ref>Chatom Sofer CM 118</ref> | |||
===At What Point Is It Forbidden to Interfere?=== | ===At What Point Is It Forbidden to Interfere?=== | ||
#Before the parties agreed upon a price it is permitted for someone else to interfere to acquire the deal.<ref>Mordechai Bava Batra 551 writes that there isn't an issue with the second interfering with the first until the first buyer and seller agreed upon a price. Rama 237:1 codifies this.</ref> Some say that the second person | #Before the parties agreed upon a price it is permitted for someone else to interfere to acquire the deal.<ref>Mordechai Bava Batra 551 writes that there isn't an issue with the second interfering with the first until the first buyer and seller agreed upon a price. Rama 237:1 codifies this. However, Erech Lechem writes that the poskim do not accept this Rama. Igrot Moshe EH 1:91 vheneh writes that obviously this Rama is accepted and no one could disagree.</ref> Some say that the second person may not interfere even before the first buyer and seller agreed upon a price.<ref>Prisha 237:1 writes that even if the first buyer and seller didn't agree on a price but would have agreed had they been left to work it out themselves the second person shouldn't interfere. Aruch Hashulchan 237:1 and Pitchei Choshen Geneva 9:16 cite the Prisha. However, Piskei Din Harabbaniyim (v. 6 p. 202) write that the halacha does not follow the Prisha. </ref> | ||
#If the buyer left because they couldn't agree on a price the second buyer can interfere.<ref>Perisha 237:1</ref> | #If the buyer left because they couldn't agree on a price the second buyer can interfere.<ref>Perisha 237:1</ref> | ||
#It is a pious practice for a second person never to interfere with an original buyer even if it technically isn't ''Ani Hamehapech Bcharara''.<ref>Pitchei Choshen Geneva 9:16</ref> | #It is a pious practice for a second person never to interfere with an original buyer even if it technically isn't ''Ani Hamehapech Bcharara''.<ref>Pitchei Choshen Geneva 9:16</ref> | ||
| Line 63: | Line 64: | ||
#If someone has made an effort to acquire a free item, some say it is wrong for someone else to beat him to it and "steal it."<ref>Rashi Kiddushin 59a s.v. ani, Ramban Bava Batra 54b. See also Rashbam Bava Batra 54b</ref> Others permit this if there's only one of the kind of that free item.<ref>Tosfot Kiddushin 59a s.v. ani</ref> | #If someone has made an effort to acquire a free item, some say it is wrong for someone else to beat him to it and "steal it."<ref>Rashi Kiddushin 59a s.v. ani, Ramban Bava Batra 54b. See also Rashbam Bava Batra 54b</ref> Others permit this if there's only one of the kind of that free item.<ref>Tosfot Kiddushin 59a s.v. ani</ref> | ||
#Everyone agrees if the first person put in effort<ref>Masat Binyamin 27 writes that the amount of effort necessary for it to be considered forbidden for the second to take the free item is only if the first person anticipated that he would certainly get it. See Chatom Sofer 79.</ref> to acquire the free item and he anticipated getting it the second one may not take it from him.<ref>Mordechai Kiddushin 524, Ritva Kiddushin 59a</ref> | #Everyone agrees if the first person put in effort<ref>Masat Binyamin 27 writes that the amount of effort necessary for it to be considered forbidden for the second to take the free item is only if the first person anticipated that he would certainly get it. See Chatom Sofer 79.</ref> to acquire the free item and he anticipated getting it the second one may not take it from him.<ref>Mordechai Kiddushin 524, Ritva Kiddushin 59a</ref> | ||
#Sephardim hold that the second person shouldn’t even take a free item, | #Sephardim hold that the second person shouldn’t even take a free item,<ref>Shulchan Aruch CM 237:1 quotes Rashi and Rabbenu Tam and Rabbenu Tam as second. Mishpat Shlomo 4:28 rules like Rashi for Sephardim because Shulchan Aruch quotes him second. He also quotes Divrei Binyahu agrees with this. Rav Ovadia Toledano (Mishpat Hakinyan v. 4 p. 77) writes that Sephardim are strict for Rashi, but the primary halacha is like Rabbenu Tam even for Sephardim. Those who think that Shulchan Aruch held like Rashi: Bet Yehuda CM 52, Erech Hashulchan 237, and Zichronot Eliyahu (Ayin p. 161). However, many think that Shulchan Aruch held like Rabbenu Tam since in C.M. 237:2 he quotes the Ri who is said on Rabbenu Tam. This point is made by Sma 237:8, Netivot Mishpat 237:2, and Paamonei Zahav 237. He also cites Maharam Elshiech 67, Rama Mpano 67, and Rav Chaim Palagi (Chafetz Chaim 45) who hold like Rabbenu Tam. However, theoretically it is possible to distinguish between CM 237:1 and 237:2 and only in a case of mitzvah Shulchan Aruch is lenient, as Aruch Hashulchan writes. Sefer Ani Hamehapech b'charara p. 24 is lenient even for Sephardim to rule like Rabbenu Tam. Mishpat Shlomo cites Yam Shel Shlomo (Kiddushin 58b) who says a logic like this as well. Chatom Sofer CM 118 and Aruch Hashulchan EH 35:39 note that Rambam Ishut 9:17 agrees with Rashi and Rashbam. However, Igrot Moshe EH 1:91 s.v. lama argues that Rambam agrees with Rabbenu Tam. </ref> while Ashkenazim hold that the second person could take a free item and the principle of ''Ani Hamehapech Bcharara'' only applies to sales or rentals.<ref>Rama CM 237:1 side with Rabbenu Tam. Igrot Moshe EH 1:91 s.v. yatza writes that a yireh shamayim should be strict for Rashi. Piskei Din Harabbanayim v. 6 p. 202 writes that even Ashkenazim should try to be strict for Rashi. Also, Maharsham 2:25 writes that initially bet din should stop someone from following Rabbenu Tam and stealing a deal from someone else. </ref> | ||
##If someone already bought a property that someone else was already trying to buy, even if some poskim hold that is improper, bet din cannot force a person to return it.<ref>Rav Ben Tzion Abba Shaul (Kiddushin v. 3 p. 15) writes that it is possible to apply kim li to this topic after someone already did buy something that someone else was trying to buy. He explains that it isn't considered isur. The isur is only because of mamon and we apply kim li to gezel. However, Mishpat Hakinyan (v. 4 p. 78) quotes Mahariv Angel who writes that bet din can force the person to return it and kim li does not apply to ani hamehapech bcharara.</ref> | ##If someone already bought a property that someone else was already trying to buy, even if some poskim hold that is improper, bet din cannot force a person to return it.<ref>Rav Ben Tzion Abba Shaul (Kiddushin v. 3 p. 15) writes that it is possible to apply kim li to this topic after someone already did buy something that someone else was trying to buy. He explains that it isn't considered isur. The isur is only because of mamon and we apply kim li to gezel. However, Mishpat Hakinyan (v. 4 p. 78) quotes Mahariv Angel who writes that bet din can force the person to return it and kim li does not apply to ani hamehapech bcharara.</ref> | ||
#According to Sephardim it is only relevant once the first person already put in effort to acquire the free item and not just if he saw it.<ref>Pitchei Choshen Geneva ch. 9 fnt. 30</ref> | #According to Sephardim, it is only relevant once the first person already put in effort to acquire the free item and not just if he saw it.<ref>Pitchei Choshen Geneva ch. 9 fnt. 30</ref> | ||
#Even according to Ashkenazim, there is a principle of the second person not stealing the free opportunity from the first person if he already put in an effort and was confident that he would acquire it.<ref>Pitchei Choshen Geneva 9:13 based on Rosh</ref> | #Even according to Ashkenazim, there is a principle of the second person not stealing the free opportunity from the first person if he already put in an effort and was confident that he would acquire it.<ref>Pitchei Choshen Geneva 9:13 based on Rosh</ref> | ||
| Line 72: | Line 73: | ||
#It is halachically permitted to hire a worker who currently works for another similar job if they have a special talent that you doesn't think he will find in another worker.<ref>Tosfot Kiddushin 59a concludes that based on Rabbenu Tam it is permitted for someone person to hire a teacher who is already hired by someone else because he can claim that this teacher is unique and can do the best job. Shulchan Aruch CM 237:2 codifies this as the halacha.</ref> Regarding the legality of poaching employers from competitors see [https://www.pashalaw.com/legally-poaching-employees-company-and-preventing-it/ here] and the article on [[Dina Dmalchuta Dina]]. | #It is halachically permitted to hire a worker who currently works for another similar job if they have a special talent that you doesn't think he will find in another worker.<ref>Tosfot Kiddushin 59a concludes that based on Rabbenu Tam it is permitted for someone person to hire a teacher who is already hired by someone else because he can claim that this teacher is unique and can do the best job. Shulchan Aruch CM 237:2 codifies this as the halacha.</ref> Regarding the legality of poaching employers from competitors see [https://www.pashalaw.com/legally-poaching-employees-company-and-preventing-it/ here] and the article on [[Dina Dmalchuta Dina]]. | ||
##Some only allow poaching employees for a mitzvah.<ref>See Mishpat Shlomo 4:28-9 and Aruch Hashulchan 237</ref> | |||
##Some forbid poaching an employee while he's in the middle of a contract.<ref>Netivot 237:5, Aruch Hashulchan 237</ref> | |||
#It is forbidden to get someone hired by a employee if by getting the job someone who currently works there will get fired unless the employer either way was going to fire that worker. Doing so is an issue of "stealing" the first worker's job.<ref>Tosfot Kiddushin 59a, Shulchan Aruch CM 237:2</ref> | #It is forbidden to get someone hired by a employee if by getting the job someone who currently works there will get fired unless the employer either way was going to fire that worker. Doing so is an issue of "stealing" the first worker's job.<ref>Tosfot Kiddushin 59a, Shulchan Aruch CM 237:2</ref> | ||
