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.