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 Shabbat Parashat Shoftim| 5767P'ninat MishpatUnfair Competition - Based on Halacha Psuka - vol. 14 - A Condensation of a Psak by the Beit Din of Ashkelon - From Shurat Hadin VII, pp. 218-256
Case: The plaintiff (=pl) bought meat from Argentina to market in Israel with periodically renewed contracts. After a contract period, the producer decided to use the defendant’s (def)marketing company. Pl says that this is what we call hasagat g’vul. Def responds that it is simply free-market competition, that the Argentinean company contacted them, and that, in fact, they had done the marketing before pl took away this client from them.
Ruling: We will take a quick look at different Talmudic precedents related to hasagat g’vul.
The gemara (Kiddushin 59a) says that if a poor man attempts to acquire an item and someone takes it from him, the latter is called a rasha. Rashi explains that the wickedness has to do with depriving another of his livelihood even when the former was trying to acquire it from hefker. Even so, beit din cannot make him return the object. Tosafot says that we have such complaints only if the first was to receive payment from work and the second could have gotten work elsewhere. Similarly, one cannot take a teacher’s position if he is already working in a certain place. However, the Maharshal limits this to cases where there had been an expectation that the teacher would have continued for an extended period, such as in a place with few available teachers. The Maharshal’s criteria do not exist here. The Rama (CM 237:1) says that prior to a potential buyer’s formalizing a sale’s conditions someone else who buys is not called a rasha. The Pitchei Teshuva says that once negotiations have commenced, one should not get involved, but that was not the case in our context.
The gemara (Bava Batra 21b) tried to prove that if one neighborhood resident opened a business, someone should not come to infringe on his business, just as one must distance his fishnet from one which preceded his. The gemara says the case of the fish may be different because the first one attracted fish with bait. One explanation is that the investment and prospects of getting fish make the first fisherman considered a quasi-owner of the area’s fish. Another possibility is that since the first one was expected to land fish and this is his profession, it is comparable to the previous gemara’s case. Either way, our case lacks the level of likelihood that pl would be successful in the business opportunity.
In the post-Talmudic case of merapia where one Jew had a special working relationship with a non-Jew (poskim differ regarding its exact parameters), there are different opinions whether others can take away from it (see Rama, CM 156:5). This type of relationship is rare nowadays and does not apply to the case before us.
None of the rabbinic limitations on free trade apply to the case before us, and, therefore, def’scontract with the Argentinean company is halachically legitimate.
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