Monthly Archives: July 2015

Singing the Mitzvot: Pedagogy with Moshe Rabbeinu

This week’s alumni dvar torah is by Leah Sarna
When we teach people about Halacha, how do we best encourage observance? What about when the mitzvot we are detailing require time, effort and funding? In Parashat Vaetchanan, Moshe Rabbeinu models one answer to this question.
The book of Devarim is more or less a recording of lectures that Moshe presented to the Jewish people immediately before his death and their entrance to the land of Israel. Dr. Jeffrey Tigay in the JPS Commentary to Deuteronomy points out that our parasha, Parashat Vaetchanan, marks the end of Moshe’s first discourse and the beginning of his second. Tigay describes Moshe’s first speech as an “exhortation” about “obedience to [Hashem’s] laws as a way of life in the land.” The second speech is an “exposition of the laws.”
In between the two speeches, we have a short interruption.

(מא) אָ֣ז יַבְדִּ֤יל מֹשֶׁה֙ שָׁלֹ֣שׁ עָרִ֔ים בְּעֵ֖בֶר הַיַּרְדֵּ֑ן מִזְרְחָ֖ה שָֽׁמֶשׁ:

(מב) לָנֻ֨ס שָׁ֜מָּה רוֹצֵ֗חַ אֲשֶׁ֨ר יִרְצַ֤ח אֶת־רֵעֵ֙הוּ֙ בִּבְלִי־דַ֔עַת וְה֛וּא לֹא־שֹׂנֵ֥א ל֖וֹ מִתְּמֹ֣ל שִׁלְשֹׁ֑ם וְנָ֗ס אֶל־אַחַ֛ת מִן־הֶעָרִ֥ים הָאֵ֖ל וָחָֽי:

(מג) אֶת־בֶּ֧צֶר בַּמִּדְבָּ֛ר בְּאֶ֥רֶץ הַמִּישֹׁ֖ר לָרֽאוּבֵנִ֑י וְאֶת־רָאמֹ֤ת בַּגִּלְעָד֙ לַגָּדִ֔י וְאֶת־גּוֹלָ֥ן בַּבָּשָׁ֖ן לַֽמְנַשִּֽׁי:

41 Then Moses set apart on the east side of the Jordan three cities

42 to which a homicide could flee, someone who unintentionally kills another person, the two not having been at enmity before; the homicide could flee to one of these cities and live:

43 Bezer in the wilderness on the tableland belonging to the Reubenites, Ramoth in Gilead belonging to the Gadites, and Golan in Bashan belonging to the Manassites.

(Devarim 4:41-43)

I want to argue that this interruption is a purposeful, pedagogic tool.

The Bavli in Makkot 10a points out that Moshe did not need to set apart these three cities of refuge quite yet. The mitzvah of creating cities of refuge does not apply until all six, including the three on the not-yet-conquered west side of the Jordan River, could be established (Mishnah, Makkot 9b). But Moshe made these three now, because אמר: מצווה שבאה לידי אקיימנה. He thought, if the opportunity to do a mitzvah comes into my hand, I will do it. And this is no small mitzvah. If we feel that building a shul, yeshiva or mikvah is difficult– try building three cities.

But more than that, the Talmud compares Moshe to the money-lover criticized in Kohelet, אוהב כסף לא ישבע כסף– the one who loves money will never be satisfied with his money. The Talmud flips the critique into a compliment about Moshe who loved mitzvot, who was greedy for mitzvot, and who was never satisfied with his quantity of mitzvot, so he did more mitzvot than he needed to– like setting aside these three cities of refuge.

But Moshe was doing more than modelling an enthusiasm, a greed, for mitzvot. Devarim Rabbah tells us that Moshe had a special connection to this mitzvah.

אז יבדיל משה, מהו אז? זה שירה, שנאמ’ אז ישיר משה (שמות ט”ו א’), מי אמ’ שירה, משה אמ’ שירה. למה? שהוא הרג את הנפש.

When the verse says “Then Moses set apart,” what is meant by “then?” It is a song, as we saw “and then sang Moshe” (Shemot 15:1). And who sang? Moshe sang. Why? Because he had killed a person.

The Midrash continues:

ולמה אמ’ שירה? שהוא היה יודע צערו של רוצח

And why did Moshe sing a song? Because he knew the suffering of the murderer.

In Egypt, at the transition point between his childhood and adulthood, Moshe killed an Egyptian. Moshe fled and took refuge in Midian, because Pharaoh wanted to kill him. Although Moshe was not an accidental killer, he knew the suffering of the killer– and, the Midrash suggests, he was particularly passionate about mitzvot which address it.

Moshe, at the time when he designates the three cities of refuge, is about to begin teaching a massive halacha shiur, spanning 24 chapters until Devarim 28. Before he can teach the details, he needs to show the assembled Jews what a life full of mitzvot can mean. He needs to model a life of energetic, emotional shmirat hamitzvot to his audience. By singing as he designates the three cities of refuge, a mitzvah which did not even need to be performed yet, Moshe shows the people that mitzvot, even difficult ones, are personal and sweet. That they can speak to the very core of the Jew who performs them. This is Moshe taking responsibility for the Torah, by teaching it in a way that inspires connection and commitment.

Leah Sarna (SBM 2014) is a second year student at Yeshivat Maharat and a Wexner Graduate Fellow.

Leave a comment

Filed under Uncategorized

Week Four Summary of SBM 2015

by Judah Kerbel and Avram Schwartz

Does halakhah support some monopolies? Last week began with an investigation of the maarufya, an arrangement in which a Jew develops an exclusive money lending relationship with a non-Jewish client. This concept develops in medieval Ashkenaz. To what extent, and on what basis, did halakhic decisors recognize and enforce the exclusivity of the relationship and forbid other Jews from seeking the non-Jews’ trade? On whom was this exclusivity binding? Some of the literature on maarufya follows Talmudic precedent in seeing limits on competition as geographically bounded. Some texts refer to “places which have the minhag to give legal force to maarufya, and places which do not.” Does the term minhag refer to a custom that was adopted for practical policy reasons, or to a minhag hapesak, a custom to adopt one side of an earlier halakhic dispute?

The earliest responsum we studied (Teshuvot Rabbeinu Gershom Ma’or HaGolah Siman 68) addressed the following: Reuven is a talmid chakham with a lucrative maarufya. His students attempt to steal his client. The community puts the students in cherem until they desist, but can they act similarly to others interfering with Reuven? Rabbeinu Gershom deduces that no general custom of maarufya exclusivity exists in their town. However, he decides for Reuven, on the ground that since Reuven is a talmid chakham, the community must avoid competing with him so that he can be engaged in Torah without financial impediments, following a Bava Batra 22a case in which a young scholar is given the right to sell his produce before anyone else enters the market.

Shut HaRashba 3:83 discusses Reuven, a tailor who regularly does business with a wealthy non-Jew. Shimon solicits the non-Jew’s business by offering to charge less. The Rashba rules that the beit din cannot recover damages from Shimon if the non-Jew willingly gives him the trade he formerly gave Reuven. However, the beit din should object to Shimon’s conduct and seek to persuade him to withdraw. Rashba draws an analogy to the case of fishermen. Bava Batra 21a says that if one fisherman has already spread his net, any colleagues arriving subsequently must distance their nets the distance of a league. Rashi explains that this is because the first fisherman reasonably considers the fish to be already in his possession. Here too, Reuven reasonably regards the non-Jew’s trade as already his. When Shimon diverts the customer, his actions are almost gezel (robbery).

The Or Zarua (3:28 Piskei Bava Metzia) rules that it is forbidden to interfere with a maarufya, since there are enough non-Jews who need lending that Jewish lenders can find other customers. He cites Rabbeinu Tam as rejecting maarufya exclusivity on the ground that non-Jewish trade is equivalent to hefker (ownerless property) Or Zarua disagrees on the ground that the  maarufya case is still comparable to the fisherman case above, where Rabbeinu Tam concedes that one “is called wicked” if one spreads one’s net too close. He then cites RI of Dampierre as reporting that Rabbeinu Tam himself agreed with that comparison.

RI’s account of Rabbeinu Tam’s position directly contradicts Or Zarua’s initial report that Rabbeinu Tam permitted soliciting someone else’s maarufya. If we accept RI’s report, Or Zarua’s initial report must be a mistaken deduction from R. Tam’s position elsewhere. The most likely source of that deduction: Bava Batra 54b states that “The possessions of a non-Jew are like the wilderness; whoever comes first, acquires,” and Rabbeinu Tam states, in opposition to Rashbam, that there is no objection to the acquisition. This might be understood as saying that since the non-Jew always has the free choice of whom to do business with, until a deal is concluded, no one can rely on his choosing to do business with them. One might conclude that a Jew can always legitimately solicit the business of a non-Jew, even if the non-Jew is currently in a maarufya relationship with another Jew. However, the specific “wilderness” case under discussion on Bava Batra 54 is narrower. Under halakhah, when a Jew buys land from a non-Jew, the non-Jew’s ownership ceases when he receives payment, but the Jew’s ownership begins when he receives the deed. In the time between, the property is considered ownerless. This has no obvious relevance to other cases of commerce with non-Jews. Mordekhai (Kiddushin 524) cites Rabbeinu Tam as providing a rationale specific to the “wilderness” case. The Jewish buyer should anticipate this problem and arrange the transaction so that he receives the deed before paying; if one was idiotic enough to hand over money without receiving the contract, there are no grounds for preventing someone from taking advantage of that person. Again, this has no relevance to other cases on commerce with non-Jews, such as maarufya relationships.

We next discussed two influential teshuvot: of Maharik and Maharshal. Both dealt with cases in which one Jew was intruding, or attempting to intrude, upon the rights of another. In Maharik’s case, Reuven buys from a local ruler the exclusive right to lend at interest to non-Jews in a certain town. He then leaves that right unused for four years, although he does rent a house in that town. Shimon then buys the exclusive right to lend out from under him. Maharik concludes that this was improper, and his reasoning is particularly novel. He begins with the machloket between Rashi and Rabbenu Tam over the case addressed in the rule (Kiddushin 59a) of ani mehapekh beharara, the “poor person running after a cake.” Rashi understands this to be a paradigm of hefker, ownerless property. He concludes that any case in which one person is attempting to acquire something that has no owner, it is morally objectionable to try to get that thing first. Rabbenu Tam disagrees; the “ani” of the rule is a person who has made themselves available for hire to a wealthy person with the hope or expectation of reward, and the “cake” stands for that reward. According to Rabbeinu Tam, it is permitted to acquire an ownerless cake even when a poor person is pursues it. Rabbenu Tam’s distinction can be understood in two ways. He may be differentiating strictly between found or ownerless objects on the one hand and opportunities to buy or rent on the other. Alternatively, he may be distinguishing between opportunities that the second person can obtain elsewhere (i.e. buying readily available commercial goods) and opportunities that are rare (i.e. finding ownerless objects). Objects for sale and ownerless objects, on the second reading, are merely example of these respective categories.

Maharik follows the second, conceptual reading of Rabbenu Tam. He also defines the permissive situation in an exceedingly narrow way, writing that competition is permitted only when someone is certain that they will not find the same opportunity anywhere else. If there is even a doubt that one could benefit similarly elsewhere, then one must go and seek it there. Maharik also argues that laying out money to obtain an opportunity counts as “pursuing the cake”, and thus creates a degree of presumed right to an object or job. Shut Maharshal 35-6 addresses some of the same conceptual issues as Maharik. His case also concerns two Jews and an exclusive business right, but here the item for sale is whiskey. One Jew bought the exclusive right to sell in a certain town, but after a number of years, the non-Jewish rulers of the town sought out a different Jew to whom they could sell that right. The two litigants disagree on some of the facts, but the basic question is whether the second Jew was allowed to purchase the right (and provide the necessary bribes to the non-Jewish government).

Maharshal is responding to a ruling by a local rabbi in favor of the original whiskey-seller, and is attempting to overturn it. This requires a very high degree of legal certainty, and so Maharshal must go to great lengths to leave no room for doubt. Maharshal performs some impressive textual and legal gymnastics in order to uphold a strong reading of Rabbeinu Tam which would allow for the second person in his case to keep his right. Fundamentally, Maharshal wishes to make the original whiskey-seller’s claim for restitution untenable. A possible reason for this emerges late in the teshuva: should the Jews miss out on this business opportunity, it may pass out of the hands of the Jewish community, as unlike in moneylending, Christians can compete with Jews to sell whiskey. Protecting a weaker Jewish businessperson against a stronger Jewish competitor thus may harm the interest of the Jewish community as a whole, which must be avoided at all costs.

Leave a comment

Filed under Uncategorized

Conquest of Eretz Yisrael in Sefer Devarim

This week’s alumni dvar torah is by Aminadav Grossman

Parashat Devarim opens with an introduction to Moshe’s address to the nation. Verse 1:4 gives the context of the speech as directly following the conquest of Sichon and Og. Why are the battles with Sichon and Og the only events explicitly mentioned in this opening?[1] Several other significant occurrences are recorded in the end of Sefer Bemidbar after the battles with Sichon and Og, such as the battle with Midian, and multiple episodes relating to division of the land. Again, in Devarim 4:46, Moshe mentions the conquest of Sichon before transitioning to a new part of his address. Why is it necessary to invoke this episode yet again as Moshe concludes the opening portion of his address to the people?

Later in the parsha we find further expansion of the battles with Sichon and Og explicated with numerous differences from the account in Sefer Bemidbar chapter 21. The focus in Bemidbar is on Sichon and his land, describing the conquest in three verses (21:23–25) and then the song of the מושלים about Sichon and his land. In Devarim chapter two, Moshe adds a directive from Hashem to initiate war with Sichon, two reassurances that the people will be successful in their campaign (2:25, 31), and a repeated directive and reassurance prior to war with Og (3:2). There is a universal aspect– “this day I will begin to instill your fear and terror in the faces of all nations…” (2:25). Devarim 2:30 mentions G-d’s hardening Sichon’s heart and spirit to embolden him to fight, omitted entirely in Bemidbar. Why the differences?

All of the additional elements in Devarim parallel the broader conquest of Eretz Yisrael as depicted in Sefer Yehoshua. With less fanfare than Sefer Yehoshua, not preceded by splitting of the Yarden or other supernatural miracles, Bnei Yisrael begin their conquest of Eretz Yisrael in the land of Sichon and Og. Indeed, Yehoshua chapter 12, which lists the kings vanquished in the process of conquering and inheriting the land, opens with Sichon and Og and the boundaries of their lands. In describing the process of distributing the conquered land, chapter 13 opens by mentioning the land of Sichon and Og, given to Reuven, Gad and half of Menashe.

The verbs לקח and ירש appear only once in the account of Sichon presented in Bemidbar but are used numerous times in the Devarim account, associating these battles with the broader inheritance of Eretz Yisrael described in Sefer Yehoshua.[2] The term חרם is used repeatedly in Devarim to categorize the absolute war with Sichon and Og, with no survivor from the battles, also a characteristic feature of כיבוש וחילוק ארץ ישראל.[3]

Further, the Canaanite nations’ fear predicted in Devarim 2:25 is manifest in Rachav’s citing the conquest of Sichon and Og along with the splitting of Yam Suf that combine to terrify the nations of Canaan (Yehoshua 2:10). The reassurances Hashem gives Moshe parallel the reassurances to Yehoshua in Yehoshua 1 and 3, and the hardening of Sichon’s heart in Devarim calls to mind the hardened hearts of Israelites’ enemies in the conquest of Eretz Yisrael (Yehoshua 11:20). The gemara in Avodah Zara 25a learns from these similarities that the sun stood still for Moshe during the battle with Sichon, just as it did for Yehoshua in Givon.[4]

According to this perspective that the battles with Sichon and Og and conquests of their land were included in כיבוש וחילוק הארץ, it is significant that Moshe Rabeinu was himself involved in that very process. While he may not have merited bringing Bnei Yisrael across the Jordan, he set the stage for a seamless transition, bolstering the confidence of the people.[5]

Returning to our original question, if we assume Sefer Devarim to be tailored towards preparing Bnei Yisrael for imminent entry into the land, milchemet Sichon and Og is the perfect frame for Moshe’s opening address in 1:4. Particularly on the heels of 38 years of slow erosion of the nation’s self–esteem, characterized only by the death of its אנשי מלחמה due to its mistakes (Devarim 2:14–16), these wars are a source of confidence, faith and practical example for how they are to act going forward into the land of Israel.[6]

Aminadav Grossman (SBM 2012) is currently a YU semicha student and will be returning to learn at Yeshivat Har Etzion in the upcoming year. 

[1] The midrash identifies numerous events alluded to implicitly in the opening verses but only places are mentioned without elaboration.

[2] A couple examples of these terms appearing in Sefer Yehoshua are 11:16, 23; 12:1, 7

[3] Devarim 7:1–2, 20:17; Yehoshua 10:40.

[4] Devarim 2:25 היום הזה אחל תת פחדך  and Yehoshua 3:7 היום הזה אחל גדלך בעיני כל ישראל or, according to a different opinion, Yehoshua 10:12 ביום תת ה’ את האמורי

[5] To be sure, Ramban Bemidbar 21:21 and others (based on chazal) point out that עבר הירדן has a lower level of קדשה from the rest of Eretz Yisrael. However, on Bemidbar 31:23 Ramban develops the distinction between מלחמת סיחון ועוג and מלחמת מדין, arguing that the land acquired in the former is part of the inheritance of Eretz Yisrael as part of the Emorite land that was divinely promised. One halakhic manifestation of this distinction between the different wars is the status of the spoils. Ramban Bemidbar 31:23 asks why the laws of טבילת כלים are mentioned following the war with Midian but not following the war with Sichon and Og. He answers that use of the Emorite vessels was permitted because the spoils of conquest of Eretz Yisrael was permitted for use during war whereas the war with Midian was entirely unrelated to conquering the land. Further, there was no concern of tuma/ ritual impurity following the wars of Sichon and Og unlike the war of Midian because all of the people were commanded in the former as part of Eretz Yisrael and the principle of טמאה הותרה בציבור therefore went into effect.

[6] This also might be the reason for Moshe’s description of the strength of Og and his kingdom in chapter 3:5 and 3:11. If divine providence could lead them to victory in convincing fashion over such imposing enemies surely they would be invincible with the help of Hashem in fighting on the other side of the Yarden. Finally, in 3:21, Moshe directly instructs Yehoshua to take heed in this regard.

Leave a comment

Filed under Uncategorized

Week Three Summary of SBM 2015

by Elliot Dine and Sam Englender

Last week we discussed the geographical limits on competition found on Bava Batra 21 and how early commentators understood and ruled on these issues.  In general, halakhah is more likely to restrain competition that sets up shop locally but belongs to owners from outside.

This week we focused on various conceptions of legitimate and illegitimate competition brought down in Tosafistic and Spanish (specifically Catalonian) commentaries.  In order to fully grasp these conceptions, we first had to look at the other sources in the Talmud that Tosafot bring into this halakhic conversation.

One such source, Mishnah Bava Metzia 10A, rules that even if one falls on an ownerless object, someone else can come, physically take it, and thus legally own the object.  The Gemara extends this principle to cases of poor people picking from pei’ah (grain left unharvested for the poor in the “corners” of fields), meaning that one cannot take possession of Pei’ah just by falling on it.

A second source, Bava Batra 54B, discusses two statements made by Shmuel (the amora, not the prophet). Shmuel’s first statement maintains that land sold by a non-Jew to a Jew is considered Hefker (ownerless) during the time between the non-Jews’ receipt of payment and the Jews’ receipt of the deed.  This allows a second Jew to come and work or live on the land and then claim the land as his own if he does so before the deed is transferred.  The Gemara has a hard time squaring this statement of Shmuel with his more well-known rule of Dina Dimalchuta Dina (the law of the land is the law), as the law of the land at the time said that land could only be acquired via the deed.  Rashbam also finds Shmuel’s statement troubling and thus writes that although the second Jew owns the land he gets the status of “Nikra Rasha,” “called wicked” – language we saw last week and will discuss again below.

Rabbi Klapper showed that Tosafot use these sources to draw out 4 variables that serve as the underlying principles for all Halakhic cases dealing with economic competition.  Seven of these cases are listed below:

  1. From Bava Metzia 10a – A poor person does not acquire pei’ah just by falling on it.
  2. From Bava Batra 54B – If a poor person climbs an ownerless fruit tree and shakes the branches, it is “Rabbinic theft” for someone else to take the fruit that falls underneath it.
  3. From Kiddushin 58B and the first week of SBM – If a poor person is negotiating for a loaf of bread (ani Mehapech BiChrarrah), someone who takes the loaf before from him is Nikra Rasha.
  4. A Jew has the right of first refusal on all land sold by his Jewish neighbor.  This is known as the rule of Bar Metzra.
  5. From Bava Batra 54B – Shmuel’s statement about non-Jewish real estate discussed above.
  6. From Bava Batra 21B – We forbid other fisherman from setting up fish traps within a Parsa of where a first fisherman set up his trap.
  7. The prohibition against entering into someone else’s profession (Yored Leumanut Chavero).

Based on these cases, Tosafot draw out 4 variables that differentiate between proper and improper competition. The variables are as follows:

  1. The amount of effort that went into acquiring an object (based on case 2).
  2. The ease of access to acquiring an object or wages (based on cases 1, 3 and 5).
  3. The effect of competition on the first party’s livelihood (based on cases 3 and 7).
  4. The force given to meta-principles such as Lifnim Mishurat Hadin (based on cases 3, 4 and 5).

Based on these variables, in cases where a second party enters into competition or negotiations when a first party is already engaging in that business or negotiating to do so, Rabbeinu Tam (as we have seen his position presented thus far – Rabbi Klapper warned us that there are multiple and differing reports of his position) rules this competition is improper if any of the following criterion are met:

  1. If the first party made a demonstrable effort to obtain the object or business.
  2. If a similar object or business can be easily acquired elsewhere.
  3. If the competition will be ruinous for the first party’s livelihood.
  4. If there are no meta-principles that need to be considered.

The 13th and 14th–century Spanish Talmudists (School of Ramban) responded both to Rabbeinu Tam’s rulings and to the rulings of earlier Spanish Halakhists such as RIF (R. Isaac of Fez) and Rabbi Yosef Ibn Megas’ (in their comments to Bava Batra 21B) that we began studying last week.

Ramban initially responds to Rabbeinu Tam by declaring case 6 above (fish traps) as a case of Gezel Gamur (full-on theft). His ground is that a fisherman setting up traps within one Parsa of another is engaging in ruinous competition, and therefore it makes sense that it is forbidden as it meets one of Rabbeinu Tam’s criteria, criterion C.  However, Ramban and other Spanish Talmudists also attribute ideas to Rabbeinu Tam that the Tosafist commentaries did not present.  For example, Ramban quotes Rabbeinu Tam as establishing a difference between people who engage in crafts (Omanim) and those who sell other people’s goods (Socherim), arguing that the rules of competition only apply to Omanim and not to Sochrim.  Ritva brings another distinction and claims that according to Rabbeinu Tam people have full rights to compete within a local marketplace if they pay local taxes, even if they have not established local residence.

One can easily see how these rulings might affect how we apply the halakhot regarding competition to modern-day situations, and yet we must also consider how much weight to give these interpretations when we don’t have firsthand access to the original rulings.

(This problem also applies to a responsum reported in the name of Aviasaf, a lost book by RAAVYAH, regarding whether opening up a competing business in a cul-de-sac can be considered ruinous competition and whether we consider ruinous competition illegal.)

Before applying the commentaries of the Spanish Talmudists to modern-day situations, we also must consider whether the economic theory underlying their positions matches contemporary economic theory.  Ri Migash, Ramban and Nimukei Yosef all bring up issues regarding the interests of consumers versus sellers when discussing Rav Huna brei d’Rabbi Yehoshua’s position that foreign merchants can be prevented from entering local marketplaces. Ri Migash, as we saw last week, allows free entry for foreign merchants if their goods are cheaper or of better quality than the ones provided by local merchants.  Ramban objects to Ri Migash’s distinction and claims that local merchants can be ordered to match the outsider’s prices, or failing that, new local competitors can be authorized. Prices should be set at a point that is fair to consumers but nonetheless allows businessmen to prosper.  However, Ramban’s solution only works in a world where the local Beit Din has enough power to set prices and enough economic expertise to set socially beneficially prices.  Nimmukei Yosef endorses the Ramban’s solution with the caveat that foreign merchants may enter if their products are “vastly cheaper” than the ones sold locally.  However, it is not clear what exactly is to be considered “vastly cheaper.”

This past Thursday, SBM had the wonderful opportunity to hear from two economists specializing in competition, Dr. Ted Rosenbaum of the Federal Trade Commission and Professor Martin Gaynor of Carnegie-Mellon University. They helped us understand whether economic presuppositions of the Rishonim match contemporary understandings.  The economists set up an experiment in which all of the SBM fellows were in an ad-hoc marketplace. Through our marketplace haggling we were able to understand how competition leads to lower prices and a more efficient marketplace (one in which every transaction that benefits both parties has taken place) as compared to monopolies, and about different metrics one can use to measure the success of a marketplace.  Ri Migash simply applied the formula “greater competition = lower prices.”  Ramban and Nimukei Yosef recognize the price effects of competition, but nonetheless seek to restrain it under some circumstances.  Why? What advantages might regulated monopolies or protectionist policies have over a fully competitive marketplace?  Dr. Rosenbaum’s and Professor Gaynor’s presentation provided us with a better understanding of modern economic theory that may help answer these questions when trying to apply halakhic sources to today’s economic reality.

Leave a comment

Filed under Uncategorized

Week Two Summary of SBM 2015

This week’s summary of shiur from SBM 2015 is by Avinoam Stillman

Under what circumstances can someone residing in a particular area prevent someone else’s commercial activities in that area? According to the Mishna on Bava Batra 20b, residents of a courtyard can prevent their neighbor from opening a store by complaining about the potential traffic noise. However, they cannot prevent the same neighbor from running a workshop, regardless of the noise. Elementary yeshivot also cannot be restrained even though the students are noisy; the Gemara explains that Yehoshua Ben Gamla enacted a special takkanah mandating public education. The Gemara moves on to discuss geographic restraints on competition: within alleys, between different alleys within the same city, and between cities. The discussion begins with a statement of Rav Huna: “If a resident of an alley established a mill (Rashi: to grind and sell), and a fellow alley-resident set up [a mill] adjacent to him, it is the rule (dina) that the first resident can protest against the latter, because he can say: ‘You impeded my livelihood”’ (Bava Batra 21b).

Rabbi Klapper summarized the meaning of Rav Huna’s statement: “There is a case in which one person has the right to limit competition. The grounds of that right are economic and the limit is geographic.” Beyond that, the limits of Rav Huna’s statements are unclear. Where are the mills located vis-à-vis each other? Is this an endorsement of prior restraint, or does it only authorize post facto complaints? What are the parameters of an “impeded livelihood”?

A baraita is brought to provide support to Rav Huna: “We distance fishtraps from the fish according to the full measure of the run of the fish.” This case has generated a variety of interpretations, but the gist of the baraita is that halacha impedes the rights of fishermen to compete with each other. This restriction has a geographic limit – “the full measure of the run of the fish,” which the Gemara defines as a parsa (equivalent to a league). Rashi glosses that this restraint applies “even though he hasn’t yet caught the fish and it hasn’t come into his hand, because he can say ‘you impeded my livelihood.’” That is, the economic grounds for limiting competition extend to the potential, not just actual, livelihood of the fisherman. Similarly, one can prevent the opening of a competing mill because it will lure away anticipated customers. The Talmud concludes, however, that the fish case can be distinguished from Rav Huna’s statement. Rashi explains that the fisherman “is certain that he will catch [the fish], and it is as if it has already come into his hands, and thus his fellow fisherman is damaging him, but here [in Rav Huna’s alley-mill case] – whoever comes to me will come, and whoever comes to you will come.”

An almost-caught fish is still only potential livelihood, but it is more assured profit than potential customers for a mill. However, Rabbenu Gershom insists that the fish must be enticed out of the trap of the first fisherman for the second fisherman to be guilty of unfair competition, which in this case is tantamount to theft. For Rabbenu Gershom, there are no gradations within the category of “potential,” and the fish case is one of actual livelihood while Rav Huna’s case remains merely in potential. Taking a different approach, R’ Yosef Ibn Megas makes a theological distinction: If one totally obstructs someone’s livelihood, as in the fish case, then one is culpable of unfair competition; but if one only somewhat limits another’s livelihood, as with the mills in the alley, then one can claim that “What comes to you is what is meted out to you by Heaven, and what comes to me is what is meted out to me by Heaven.”

With the fish case distinguished, the Gemara discusses several other baraitot which might support or oppose Rav Huma’s statement. It concludes that Rav Huna corresponds to the opinion of R’ Shimon ben Gamliel, who states in a baraita that one resident of an alley can prevent another resident from opening a competing business. However, the anonymous position (presumed to represent the majority) in that baraita and in other anonymous baraitot is that one cannot prevent a fellow alley-denizen from competing.

Rav Huna Brei d’Rav Yehoshua (not to be confused with Rav Huna) elaborates the position of Rabanan: “It is obvious to me that the residents of one city can constrain the residents of another city [from setting up businesses]. If they pay taxes (to the same government), they cannot be restrained. A resident of an alley cannot constrain another resident of the same alley.” However, Rav Huna Brei d’Rav Huna asks, What about residents of different alleys (in the same city)? The question ends with a teiku or aporia.

Tosafot Rid brings an obvious question: if an outsider who pays taxes has the right to compete, why isn’t it obvious that a city dweller living in a different alley has the same right? The Tosafist Rabbenu Yitzhak suggested that this city dweller might not pay taxes. Rid rejects this position, suggesting nonresidents are only allowed to open competing businesses at the edge of the city, not in an inhabited alley. Their case accordingly does not settle the issue of whether the resident of an adjoining alley is free to compete. As for halacha l’maaseh, the Rabad quotes an anonymous position that we prevent the competition, because the resident of the other alley “entered the borders of his fellow.” However, most other rishonim decide that, given that the question is unresolved, we don’t prevent this competition.

The Gemara then gives exceptions to the above general rules. One is that if visiting merchants are forced to stay in the city to collect debts, they may continue trading enough to maintain their livelihood. Mordechai, in a related point which resonates with his position in medieval Ashkenaz, and with our current season leading up to Tisha B’Av, remarks that competition restrictions don’t apply to refugees fleeing persecution, at least until they can return to their homes.

Is halacha in these areas driven by a coherent economic policy, or are all these rules constructed ad hoc? This meta-question is addressed creatively by R’ Yosef Ibn Megas. R’ Ibn Megas provides the sevara that the underlying consideration of these rulings is the interest of consumers. Therefore, outside merchants cannot be prevented from doing business in a city if they are offering products that are at a lower price, or are of a higher quality, than those found in the local market. In modern terms, a free market is the best way to drive down prices and benefit customers.

Ramban, however, rejects R. Ibn Megas’ position. His argument is as follows: Rav Huna Brei d’Rav Yehoshua explicitly allows a city to restrain outsiders from competing with locals. But competition automatically lowers prices! Therefore, it cannot be the case that benefit to consumers automatically overrides legal restraints on competition. Ramban contends that if prices seem too high, they should be lowered through internal economic restrictions such as price-ceilings or fostering internal competition. Nimukei Yosef in response offers a version of R. Ibn Megas’ position, arguing that the prices of the visiting merchants must be significantly lower to generate a right of competition.

Rabbi Klapper suggested that Ramban and Nimmukei Yosef represent two sides of a classic economic debate: What should happen when outsiders have a cost advantage so significant that, if they compete freely, they will wipe out local businesses? Ramban held that the local economy should be protected, and local consumers must forgo the benefits of lower prices in such cases. Nimmukei Yosef, by contrast, held that these are the cases in which free competition must be allowed. Both Ramban and Nimmukei Yosef agree, however, that outside competition can be prevented when outsiders have no cost advantages, as the city can, if it chooses, artificially obtain whatever consumer benefits would naturally result from free competition.

Our question, as we continue to study, is to what degree the economic conceptions or values of the various halachic sources correspond to the economy in which we find ourselves here and now. Tentatively, we might relate R’ Ibn Megas to an international laissez-faire approach, while the Nimukei Yosef might give more consideration to the potential damage caused by globalization.

Leave a comment

Filed under Uncategorized

Moshe as Posek

This week’s alumni dvar torah is by Rabbi Elliot Kaplowitz

This week’s double parshiyot of Matot-Masei mark the conclusion of Sefer Bamidbar. One of its central themes is the development of the halachic process and the growth of Moshe and the Jewish people in this regard.

We see this through two key episodes which contain several significant linguistic, structural and thematic similarities. The first is the case of Pesach Sheini in which a number of men complain to Moshe and Aaron that they are unable to offer the korban Pesach because they are impure: “why should we lose out and not be able to present G-d’s offering at the right time…?” (9:7) Moshe does not know the answer and brings their question to Hashem. Hashem tells Moshe that the petitioners are correct and they can offer the sacrifice one month later. The case is precedential and anyone who is impure or too far away is allowed to participate in Pesach Sheini.

The second episode is b’not Tzlopchad – five sisters whose father had died without any sons. According to the rules of inheritance, only males were entitled to a portion in Eretz Yisrael. Tzlophcad’s daughters come to Moshe and the elders with the same complaint of those in the Pesach Sheini story: “Why should our father’s name be disadvantaged in his family merely because he did not have a son?” (27:4) Here too, Moshe does not know and brings their question to Hashem. Here too, Hashem rules in favor of the petitioners and the case serves as precedent for similar situations.

The upshot of these two stories is that the halachic process must be accessible and democratic. In each case people who felt disadvantaged were comfortable to air their complaints publicly. It is likely that Moshe does not know the answer to the question because he had not considered these particular circumstances. Halachic authorities must have the awareness and sensitivity to address every scenario to which a ruling may be applied. For this they must be in tune with their communities.

Moshe’s development is seen in two stories in this week’s parshiyot. First, he answers the tribes of Gad and Reuven who wish to settle in the rich pastureland east of the Jordan rather than cross into Israel proper. Moshe agrees, but only if they join their fellow tribes in battle to conquer the land. Moshe does not consult with Hashem but he convinces Gad and Reuven on his own. His response shows that he has developed a sensitivity for the rest of the nation: “‘shall your brethren go to the war, and you sit here? And will you turn away the heart of the children of Israel from going over into the land…?” (32:6-7). Finally, Sefer Bambidbar concludes by revisiting the story of b’not Tzlophhad, this time from the perspective of their relatives who are concerned that if the daughters marry outside of their tribe then the land will be passed onto their male descendants who will be members of a different tribe. They use the same language prominent in Pesach Sheini and the original encounter with b’not Tzlophchad: “their inheritance will be taken away from the inheritance of our fathers, and will be added to the inheritance of the tribe whereunto they shall belong; so will it be taken away from the lot of our inheritance…” (36:3) Moshe similarly answers on his own without consulting Hashem. His response is that a compromise must be reached: Tzlophchad’s daughters will inherit their father’s portion but on condition they agree to marry within their tribe so that the land will remain in the tribe of Menashe.

With these two answers Moshe shows that he has grown as a posek. He adjudicates difficult cases on his own without consulting Hashem (an option that will not exist once they enter Israel). He relies on the art of persuasion and building consensus. Moshe is able to internalize and account for the emotional and spiritual concerns of the petitioners and all whom the ruling will affect.

Rabbi Elliot Kaplowitz (SBM 2001) is Rabbi of Congregation Netivot Shalom in Baltimore.

Leave a comment

Filed under Uncategorized

Week One Summary of SBM 2015

The 2015 Summer Beit Midrash is underway! This year’s theme is Halakha and economics and this week’s summary of what the 2015 Summer Beit Midrash has been up to in shiur is by Joshua Skootsky

In the first week of the 2015 Summer Beit Midrash, where we are tackling the theme of Halakha and economics, we viewed sources that grapple with the moral-legal interplay of values within Rabbinic literature.
The phrase “descend into the craft of one’s fellow” comes up in two sections of the Babylonian Talmud – Sanhedrin 81a, and Makkot 24a. Are these instances morally exemplary behavior, or legally binding requirements? What would be the punishment for going against these moral or legal teachings?
A Talmudic discussion beginning on Kiddushin 58b offers the possibility that persons engaging in certain kinds of behaviors are “called wicked.” For our investigation into what halakha can say about monetary law, the most relevant category is that of “the poor person going after a morsel of bread,” which is not literal, but appears to refer to someone engaging in the preliminary stages of preparing to buy an item or tract of land. However, there are many other kinds of behaviors, some wholly religious in nature (such as Berakhot 6b, which refers to praying in a synagogue while facing backwards) and others are of a wholly interpersonal nature (such as Kiddushin 59a, which talks about someone raising their hand as if they are about to strike a fellow Jew).
What are the results, practical or legal, of being “called wicked”? We have seen sources that seem to break into two tracks. In the first, wicked acts, or even calling someone wicked needlessly, takes the parties involved into an extra-legal “field of honor,” where it is permitted to the wronged party to avenge themselves by engaging in competitive business practices, and seeking to undermine his or her foe by all means necessary. Some sources question why the Sages permitted being so mean, especially since not holding a grudge is a Torah value. Other sources permit going farther, and punching the wicked person in the face, or burning one-third of the produce in their field (Tosafot Bava Metzia 71a). Wanton property damage as part of a personal feud is viewed by other Rabbinic voices with great skepticism.
Another school of thought focuses on being “called wicked” in terms of one’s legal status. Perhaps Rabbinically or on a Torah level (Pitchei Teshuva to Choshen Mishpat 237:1) one acquires the halakhic status of a wicked person or “Rasha,” and loses the ability to give legal testimony, which almost completely destroys their ability to win a lawsuit brought to a Jewish Court (Beit Din). Hagahot Maimoni (Chovel u’Mazik 5:2) quote the Ra’avan as taking this position about one who merely raises his or her hand against a fellow Jew, and then the Maharam M’Rutenberg as expanding this to “the poor person going after a morsel of bread.” Putting all of these together, taking a supercompetitive stance in business dealings could result in very real moral and legal opprobrium.

Leave a comment

Filed under Uncategorized