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Shabbat Parashat Shemini 5774

P'ninat Mishpat: Hasagat Gvul Regarding Franchise Arrangements with the Government

(based around Shut Maharam Padova 74)

[This second installment from the work of Rav Meir Katzanellenbogen of Padua, Italy is partially based on classical halacha, but incorporates elements of the practices of the Italian Jewish community of the time. While we are not used to harsh words such as he uses, we are also not used to the communal structure and the economic strategies adopted at other times under circumstances not all of which presently exist.]

 

There is a new phenomenon which has come to destroy and to be masig g’vul (enter the domain of an existing business). There are stores in the region who have already paid for their franchise from the king to be involved in usury, and now others are coming, some clandestinely and some openly, to buy rights from the king so that they too can lend with interest. In doing so, they have ignored the cherem (ban) that has always been in place within the Italian community on this matter. It is also pertinent that we do not follow the opinion of Rabbeinu Tam which says that it is enough for someone to be willing to take part in the local taxes in order to have the right to compete with local businesses (see Bava Batra 21b). Rather, we hold like Rashi that he must have been taking part in paying local taxes beforehand.

Therefore, these people will be punished for violating the local established rules of following Rashi on the question of hasagat g’vul and for violating the specific cherem in regard to establishments of usury. This is also included in the older cherem of Rabbeinu Gershom not to take away from another Jew’s franchise arrangement regarding the renting of houses, [as this is a similar type of financial construct, as applied to a different time and place]. This is all the more so if the original business paid money while being told they were receiving exclusive rights. The idea of equating the rules for the two different types of franchises was the ruling of my grandfather Rav Yehuda Mintz for the community of Padua.

I have also heard that this bad practice has begun to take place in the community of Orkaneilo, as well. Therefore I am telling them and anyone else who reads these words that whoever has acted in this way requires atonement for their past deeds, and if they will purposely act this way after reading my words, they are to be excommunicated.

If someone who is involved in these practices has reason to think that these rules do not apply in his case, he should go to a nearby beit din to ascertain what the Torah says on the matter. The one condition is that the rabbi should not be under the same government and that the owner of the first business should be present. Let the two present their arguments and follow the ruling they will receive.

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