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Rav Avi: Welcome to Responsa Radio where you ask and we answer questions of Jewish law in modern times. I'm Rabbi Avi Killip, executive vice president at Hadar, here with Rabbi Ethan Tucker, Rosh Yeshiva at Hadar, a center for Jewish learning and community building based in New York City. You can check us out and learn more at hadar.org. Hi!

Rav Eitan: Hi Avi.

Rav Avi: Okay I want to start with this question today. Do you have a favorite item of Judaica?

Rav Eitan: Oh, favorite item of Judaica? I'm kind of a fan of a nice yad that you use for reading the Torah. I actually usually don't use one but I always find they're cool.

Rav Avi: You don't use one?

Rav Eitan: I find it's, I prefer just to look at it.

Rav Avi: I feel disoriented, I feel disoriented just hearing that as a person as a dyslexic person who tracks everything I read.

Rav Eitan: How about you?

Rav Avi: I would say maybe like a hand washing cup. I somehow ended up with several really pretty hand washing cups at different points.
I feel like that's a good this is just a Judaica item. Okay, so here's the question. Yeah, the question is actually written by a listener who is also the owner of a Judaica store. Okay.

I own a local Judaica store. A persistent issue is how to generate more business revenue within the local community. Is there any halakhic obligation for supporting a local Jewish business? If so, how much does a Jew have to pay or how much farther should a Jew travel to support a local retail establishment in their community? And the final question is, is this at all connected to the mitzvah of tzedakah?

Rav Eitan: This is I think a really interesting question. The question is coming from a place of how should the consumer behave? and I'm using that word deliberately because at the end of the day we are dealing with a consumer who is looking to buy things and is considering what are the options on the market and should that consumer's mentality be kind of circumscribed by these other considerations of supporting the business.
That is not where the conversation begins. The conversation here begins with a Talmudic discussion which we'll get into, which is what does the community have the right to do in terms of curbing free enterprise to protect local merchants? That is to say we're not thinking of it from the perspective of the consumer, we are thinking about it from the perspective of the government, if you will, or the local authority. So let me just give you a little live data here from the Talmud itself.

So Rav Huna, this is in the tractate of Bava Batra, which is all about the laws of neighbors. How neighbors behave with each other. So this is sort of a question of commercial neighborhood. So the Talmud's living quarters are generally assumed to be on alleyways.
Sort of courtyards, on alleyways, these are urban dwellers and lots of times there would be little shops in the alleyways. If listeners have been in the old city of Jerusalem or other more medieval arranged towns, you're familiar with this setup. And so we're talking here Rav Huna says let's say there's someone who's a resident of that alleyway and they have a millstone that they set up there. Meaning you bring them the wheat, they'll give you the flour, they sell you the rights to mill.
If some other member of the alleyway decides I am going to set up a millstone of my own.

Rav Avi: Yeah, competitor.

Rav Eitan: Rav Huna says you can stop that guy from doing that because he can say to him you are cutting off my livelihood. Yeah, that's a pretty strict non-compete standard.

Rav Avi: Yeah, right? It's first come first serving?

Rav Eitan: Basically, we can put a little bit of a qualifier on it which is the assumption is that there's not enough customers to go around, right? In other words I think it's fair to say even Rav Huna would say if the first miller is only serving fifty percent of the demand, the second guy can show up. But to the extent this will actually cut into the customer base, totally not allowed to set that up.

Rav Avi: And is the premise there that the second guy is an outsider who just came to town or is it possible that they're both—these are both Judaica stores?

Rav Eitan: Excellent! So actually, the language is pretty clear which is it says Bar Mevoa Chavrei, his fellow resident of the alleyway, which is why then another sage, Rav Huna Beray Derav Yehoshua, then formulates the following sort of larger principle and says here's what's obvious to me and here's what I'm not sure about. The following cases are obvious to me. If you are from a city and some person comes from another city and wants to set up a competing business to you, you can refuse. You can say you can't do that, you're coming in from—you're carpetbagging, right? No traveling salesmen. Can't do it. However, if that external guy is willing to pay the local head tax

Rav Avi: He can buy his way in?

Rav Eitan: He can buy his way in and then you can't stop him.
If it's a person from another city, he's you can stop them unless they pay the head tax in which case they're basically a member of this city. If they're from your alleyway, for sure you can't stop them because how can you say that a guy can't set up a business in his own alleyway? But what I'm unsure of is if you live in the same city as someone, do they have the right to set up in any alleyway? Or no, I can keep them at bay. Right.
And the Talmud says Teiku, unresolved. There's no answer. We don't know what to do. Which generally for monetary things like this will mean well you can't really stop the guy.

So this gives you I think some sense of these things were discussed and we'll get to a few more details here, but there wasn't total unanimity of how to take this on, which is to say, right, Rav Huna Beray Derav Yehoshua, that last that last opinion is definitely more in the kind of free enterprise direction which is to say you can't come in from some other town where you're not even paying the local municipal tax and get the benefit of the commercial base. But short of that, right, it ends up essentially saying if you live in the same alley you can set up shop and if you take the doubtful case to break in the sort of more free enterprise direction at the end, essentially anyone in the city can compete anywhere else in the city.

Rav Avi: Well I do think it's actually really important for us to acknowledge that nobody said stay out of it, this isn't the job of the government. Right. Or this or Halacha has nothing to do with this, anyone can do whatever they want. So we have to figure out exactly what we can and we can't do but the overall premise across all the opinions seems to be yeah there is some necessary policing of businesses. It's not a all's fair in love and sales.

Rav Eitan: Yeah. Exactly. This is abstractly referred to in rabbinic discourse as Hasagat Gevul, which is based on the verse that talks about not moving a boundary stone. You're not somehow encroaching on someone's territory, which is here a commercial market. And they have other sources like another great source that gets referred to here which appears in the Talmud is let's say a fisherman has set up a net near a place where schools of fish are. You can only fish at a distance away from them where essentially the fish could escape your net. They wouldn't just basically automatically get caught if they come near the first guy's net and that too has a notion of well this guy worked to find the fishing hole, set up at the right distance, you can't then just piggyback and take advantage of his work.

Okay, so again, not totally resolved here. There's some debate in the later Poskim, do we follow that first position of Rav Huna, which essentially means even if it's your alleyway, it's your neighborhood, if someone else already set up their business you can't compete? Or do we follow Rav Huna Beray Derav Yehoshua where the only thing you can't do is sort of carpetbag from coming in from out of town to do it, but you can otherwise you sort of have rights to be there. But I think your takeaway is right here, there this is a concern that has to be regulated to some degree and even in that more free enterprise version of Huna brei d'Rav Yehoshua, there are still limits on what you can't do. You can't swoop into a town where you don't pay taxes and take advantage of the consumers.

Rav Avi: Yeah, and we haven't gotten as you pointed out, we're not speaking about the consumer's perspective.

Rav Eitan: That's right. The predictable next story is real life playing out.
What's going on? But somebody did. So you have basket sellers. Okay, some people say it's interpret the term to mean people selling cauldrons. And they come into Bavel, okay, to the Babylonian Jewish community, and the town that they came into, say the members of the town, say get out of here.

You can't sell like we sell baskets, we sell cauldrons, keep your distance. And the outside merchants come to Ravina, reigning sage at the time, and he says they came from outside, they can sell to those who come from outside. Now, what does he mean there? The Talmud quickly gives a kind of clarification on this, but which seems to actually just be an explication, which is that Ravina is talking about a market day. What do you have that happens on a market day? Think about the farmers market, people drive in from upstate farms, from this and that.

Rav Avi: It's like no no, they're here for the tourists. They are tourists and they're selling to the tourists.

Rav Eitan: Exactly. So you can read Ravina as, right, you sort of have to read him as there's people from other places here and his justification is the outsiders are selling to the outsiders. Okay, and then the Talmud clarifies yeah, and that logic only works on a market day, yeah, but not on a regular day, maintaining what we saw as that earlier standard. Someone from another town can't swoop in, take advantage of the customer base, but if it's already a market day, then that's not an issue. One more qualification the Talmud adds, and on a market day you're only allowed as an outsider to sell in the market but you can't go door-to-door to the residents of the town because then you're targeting the locals in a way that is also pressing an unfair advantage.

Rav Avi: It's an interesting breakdown especially when we live now in a time where tourism often is actually the primary market for certain places, right, like the Jersey Shore, you would say like many of the businesses on the Jersey Shore including the kosher restaurants, like they are mainly serving people who are coming to visit the Jersey Shore. If you let if they were to choose one market or the other, they would probably say I prefer the tourists to the locals. The locals are going to not spend twenty dollars for chicken nuggets but those tourists, they're definitely going to spend twenty dollars on three chicken nuggets so let's sell to them. So it's an interesting, I guess maybe this is a world in which there aren't so many people coming through?

Rav Eitan: Well, so this is now the question of we have a concept here and then one of the questions will be what is the application of that concept to different circumstances? I agree with you. The plain sense here seems to be every now and then there's a market day and in that context sure we don't really worry about outside people who would otherwise be banned from selling. I mean actually if you think about this even until today in robustly capitalist societies you'll get a permit to have a farmers market operate in a certain place on a certain day doesn't mean you can just show up that's more use of space, right, doesn't mean you can just show up in that parking lot whenever you want and run your stand, which is some degree of regulating that commerce. That said, Yom Ha-shuk, the day of the market, right, is conceptually something that you could extend almost ad infinitum, right? Someone could look at this text and say well today in a broadly capitalist society every day and every place is Yom Ha-shuk.

Rav Avi: Every day is market day.

Rav Eitan: Every bus that drives by has an ad, every taxi cab has an ad.

Rav Avi: So sad, so true. Every Friday is Black Friday.

Rav Eitan: Yeah, and I love how you just said it: so sad, so true. Both of those can be right at the same time. It can be both sad, it can both feel like wow I'm overwhelmed by this commerce, by this capitalism, etc., and it can also just be true that that becomes the environment. As a sort of oral Torah that I saw on this topic, I don't think it was ever written anywhere, Rav Soloveitchik was purported to have said when asked questions about this, oh yeah, like these rules just don't apply in America.

Like this doesn't matter in America. He didn't spell it out, but I think the most intuitive way is he said it's just not the architecture of the market. This is assuming business is fundamentally local. Yeah.

Rav Avi: He's saying there's no such thing as local business anymore.

Rav Eitan: On some level, okay? Descriptive. I don't know if this is a prescriptive thing, but if you read these texts, and now this gets to the tricky thing, if these texts are both assuming a certain architecture of the market, but linked to that architecture of the market they are also assuming we have some control to regulate it. The Jews have some control of regulating it.

There's some ability to enforce this. What happens when you lose that ability to enforce it and the structure of the market is that people don't really think of business as being local in the same way? Now there's a lot of stations along the way. There are lots of municipalities that regulate commerce for the benefit of local merchants.

So it's not like that's gone in any way. But there's also no question we're not living in the small mom and pop mill in the alleyway where maybe some other guy is setting up a mill. We're dealing with more of an interlinked, you know, mercantile economy.

So I mean if you look at like a surface level codification of this, okay? Like the Rambam will just sort of take the material from the Talmud and tell you merchants that bring their merchandise around to sell in different cities, those cities can prevent them from showing up with their produce. But if it's the market day, then you're not allowed to stop them as long as they market in the market, but don't go door-to-door.

Rav Avi: Why do you think, why do you think rabbis have the instinct to say markets are okay? They want people to have access to the goods on market day?

Rav Eitan: It's a great question. One of the questions underlying interpretation of these texts is do the rabbis care about free enterprise and then just want to curb it or do they just sort of care about not overly stepping on people's toes of what they're going to do and then curb it? I don't think that's 100 percent clear.

Rav Avi: Or do they have some reason to want people to have access to those products?

Rav Eitan: Correct, correct, correct.

Rav Avi: Just not unlimited access.

Rav Eitan: Right, that's right. Let's say it this way. I do think overall you have two different kinds of questions here that I don't think get fully explored by the Talmud itself and we'll see where some of it goes. One is starting with Rav Huna, right, that sentence of you can't set up your millstone here because you're cutting off my livelihood. That's a very directed thing that is concerned about the business owner and looking out for him or her.

Rav Avi: Is that something that people actually call on now, like if I opened a Judaica store next door to the Judaica store in my city, would a rabbi come and tell me you can't do that?

Rav Eitan: Oh, depending on the rabbi and the robustness of the activity, I would say yes, that might well happen, but it'll depend how the community is structured. The looking out for the business owner is definitely a thing. That's the hasagat gevul. Let's put it this way.
The bad guy in the story of the second business showing up is the second business owner.

Rav Avi: Yeah, hate that guy.

Rav Eitan: We're not there talking about the consumer. You're raising an interesting question of is the concern for the rights of the people coming to the farmers' market to sell their stuff about their rights as merchants? Right.

Or is it fundamentally about the interest of the community in having that market? Yeah. We don't know. That does not appear in an explicit way in Ravina or the Talmud's language. That's the kind of thing I think later voices are going to sort of grapple with and play out.

As we said, Jewish communities kind of lose control over that. Like when the Rambam says it's a facile codification, Bnei Ha'ir me'akvin aleihem. The members of the town can stop these outside merchants. Well, that presumes the members of the town have some real control and that they're Jews.

Rav Avi: Community board.

Rav Eitan: Right. So one other place you get an image on this where the Jews have definitely lost some authority, but they are controlling what they can. You have a really interesting institution in the Middle Ages called Ma'arufia.

This seems to come from an Arabic word that refers to someone as an acquaintance or someone you know well. A Ma'arufia is an arrangement where you basically have a fixed client. Okay, so you're in a certain kind of business and you have a guy who always comes to you to buy the bricks that you make. A second Jew, this was usually a Jew with a non-Jewish customer, okay, who wants to move in on the business that's been established with this customer. The principle of Ma'arufia says, "No, no, no, if that customer is already well established with the first guy, it's almost like he owns that customer, and when you move in on that customer, even by underselling and giving a better price, you are actually engaging in an act of theft against the first guy." If you remember back to the case of the fish, it would almost be like the first Jew in this story found the fishing hole, which was the customer who wants to buy his stuff, set up shop in that place, the second guy can't come with his fishing net and take advantage of this and steal the customer. What's interesting is, so this concept exists, but we encounter it in the Mordechai in Germany as saying, "There's some communities where they render judgment on cases of Ma'arufia and some where they don't." Meaning what? There's some communities where if they catch you moving in on someone else's established business, they will do a combination of excommunicate you and actually say any profits you made off of that are illegal, we are going to seize it and return them to the first guy. Wow.

Okay. And then there's communities that are like, "Yeah, sorry, it's not a nice thing to do, but we're not going to adjudicate that." So you see there are a combination, I think, of they have fewer tools at their disposal, they can't like actually regulate, they don't have the same kind of police power that maybe the Talmud is imagining that some of those alleyways did, but they have these sort of economic and persuasion tools at their disposal, but there's also not full conviction across the board of enforcing this. And there too, I think we come back to your question. Is that because there's a belief in free enterprise? So no, you shouldn't enforce this Ma'arufia rule, or is it a sense of we just can't really get involved to that degree?

Rav Avi: Right, that's a tricky thing to police.

Rav Eitan: And you find like later sources that weigh in on this. The Ba'er Hetev, who's writing hundreds and hundreds of years later, he says, "We don't have this rule anymore." He says, "Bizmanim ha-eleh, in these times, we don't have the rule of Ma'arufia."

Rav Avi: That's like him saying we have free market economy? Now all customers are everyone's customers.

Rav Eitan: Something like that or we've moved more towards it. And, you know, the other distinction that gets made is even if, this is the Sefer Me'irat Einayim, even if we think Jew number two shouldn't move in on the business of Jew number one, if the non-Jewish customer got wind of the fact that Jew number two might be able to provide a cheaper price of his own volition went and approached that person to try to get a better deal.

And asked them to? Then Jew number two doesn't have to refuse the business.

Rav Avi: In other words, I shouldn't steal your customers, but if you're like, "I don't like my dentist, I'd like you to be my dentist."

Rav Eitan: Exactly, then I don't have to say, "No, you're already claimed by that person." Right. So there too we see some degree of weakening of it. And that kind of sets up a distinction that I think can be helpful of offering a competitive product as opposed to actively stealing customers.

In other words, you might offer something as a product, someone might say, "Hey, I saw that ad, that looks like a good product, I'm going to go, you know, check that out," as opposed to "I got the database of your customers and now I'm going to go and call them up." Let's go to a fun case, which I think is sort of shockingly parallel to what the questioner says and it opens... opens up a debate of what we haven't yet gotten to, which is seems pretty clear, little bit of debate around this, but you there's some regulation of the market that's meant to happen to prevent outright theft of customers from business owners that have invested in building up a customer base, right? Yeah. But what happens when you operate in an environment where no one's regulating that guy who moved in illegally? Like you might condemn him, you might yell at him. Right.

Does some almost proxy enforcement of this commercial code fall to the consumer? The Talmud addresses it as we don't allow that second millstone to move in.

Rav Avi: Right. But once it has, should I not shop there?

Rav Eitan: Do the members of the alleyway have to not go there? If they did, right, fundamental question of is this my responsibility as a consumer at all? Yeah.

Okay. So here's a fun story. The Rama, Rav Moshe Isserles, famous Ashkenazi codifier, you know, half of the Shulchan Aruch as it were, he details the following case. That his colleague, Rav Meir Katzenellenbogen, who was also known as the Maharam MiPadua, he, this the Maharam, printed a version of the Rambam's Mishneh Torah, the Rambam's major code, and invested a lot of money and assumed he was, you know, going to make it, the plan was make back the investment through sales, okay? And then a non-Jewish businessman comes along and essentially, clearly someone who is wealthy, has more resources, etc., jumps in and prints his own version of the Mishneh Torah at a cheaper price.

Rav Avi: Yeah, this is a great example, right, because it's like Judaica, right? It's a uniquely Jewish product that a Jew developed, understood the market and wanted to sell, and then somebody else is coming in copycatting it and maybe undercutting the price.

Rav Eitan: That's right. But here's what's super interesting. The entire premise of the Rama in this responsum is we have no power to stop this guy.

Yeah. This is where the guy being not Jewish is particularly important, because if he were Jewish they would at least be able to do some kind of social pressures, maybe excommunicate him. So there's nothing that they can do to stop this from happening, but the question is, can we issue a ruling that it is forbidden for Jews to buy that version of the Mishneh Torah? Basically you have the consumer responsibility, right, to cut this off.

So the Rama, really interestingly, says it is absolutely forbidden to buy from that non-Jewish vendor. He actually has a whole range, he comes up with like four different reasons, okay?

Rav Avi: Yeah, what are they? So we won't go into all of them, but, you know, one of them is actually this goes to the Jewish business piece, he says if you're dealing with someone who's a non-Jewish merchant and someone who's a Jewish merchant, already when the Torah and the Midrash on it says kanoh miyad amitecha, you should buy from your fellow, there's some sort of inner communal solidarity.

Rav Avi: Yeah, that's sort of what I was saying I grew up with, the Zeitgeist of like buy from the Jewish.

Rav Eitan: Exactly.

So and that's a version of, you know, buy American or buy local, right? People have different versions of that. So, you know, he gives that, right, which is obviously specific to the case of the other guy being a non-Jewish merchant. But the main thing that really the first thing he comes charging out of the gate is he essentially says yeah, you know all those regulations in the Talmud in Bava Batra that are regulating who can come in and have a business or not, well if you can't regulate that, the responsibility devolves on the consumer. So he makes really this very clear statement where he says, you cannot essentially be a party to a purchase that depends on the commercial zoning laws been violated. Ideally you would have been able to enforce those commercial zoning laws, but if you can't it still devolved upon you.

Rav Avi: These all sound very logical to me. And, they want to push me to this part of the question, which is, How much does a Jew have to pay? How much farther do I have to go?

Rav Eitan: Yeah, so I think even before we get to that, not everyone agreed with the Rama.
Like this may be a reasonable step to take, which is to say, yeah, this is sort of an outcome we have to get to. Ideally we enforce it from top, otherwise we enforce it from the bottom by the consumers. But you have a number of Yitzchak Zilberstein in the Chashukei Chemed he quotes a whole bunch of other authorities that just say, hey guys, look at the Talmud, it doesn't talk about the consumer. Nice theory that you passed on the responsibility to the consumer, but Talmud actually never talks about that, which is correct, the entire discourse there as we mentioned is on the merchants.

And as you pointed out, the discourse of, well, the market day let them come in may actually have an implicit thing of well, we're not going to force people to pay more money than they have to on the open market. It's too bad that these elements of the picture weren't enforced, but that don't pass that on to the consumer, figure out how you change society. Sometimes what's so interesting about the Talmudic corpus is what's not said as much as what's said. We see the case that was given was if you set up a millstone and some other guy brings in his millstone you can say stop.
The Talmud did not say if a second guy brings in a millstone and someone goes to shop from them you can ostracize that guy, don't go there. And the Rama wants to say that's incidental that it didn't say that. That's the implied next part of the story. And these opposing views want to say no it didn't say that for a reason. You didn't tell that story because that's not where the emphasis goes.

Rav Avi: Yeah. So our questioner, the local Judaica store owner, he has a real side to this. He wants you to say, yeah, don't shop there.

It meant obviously don't shop there.

Rav Eitan: So here's what I'll say and link back to another thing the questioner said about Tzedakah so to give you my take on this.

Rav Avi: Yeah, I am curious to hear does this have any Tzedakah connection should I feel like I am giving either obligated or should I feel good about myself when I'm like, oh, I'm so proud of myself I bought it from the Jewish store or is that not the same thing as Tzedakah?

Rav Eitan: Yeah. So look, first of all to affirm the questioner, I hope the questioner is excited to hear about this response of the Rama and to the extent the questioner wants to go around and chastise people and this and that you can wave around this text as a great authority from the past who thought very similarly and essentially just to play it out to say look, I'm running a local Judaica store.

To the extent there are online Judaica offerers, forget Amazon, also maybe other Jewish businesses that operate out of town and they're undercutting my business. That's an important source that's out there. Asking me personally, given that that is it's disputed, there's not unanimity on this. And given that on some level, some of the principle of the day of the market also gets played out in other sources as well, it's not undercutting someone's business if you offer a product they don't offer, right? And sometimes what is going on with whether it's Amazon or other national businesses, they actually offer a delivery to home service that the local business doesn't or any number of other things which are genuine conveniences and things that people want.

I don't feel comfortable saying you are forbidden from buying from those other places under the rubric of you're cutting off the first person's business. But I do think the following. I do think it is reasonable to say it is a good thing to support those local businesses and to the extent that you're going to spend more as a result, I think it makes some degree of sense to say that added amount that you spend counts as Tzedakah money. What do I mean counts as Tzedakah money? Assuming you're doing some degree of tithing your income every year which you should,

Rav Avi: which you should have a budget that you're giving away.

Rav Eitan: Yeah. You can then say, you know what? I did the comparison. I would have saved $150 this year had I not gone to the local Judaica store. When I decided to go here, that 150...

That hundred fifty dollars is towards my tzedakah budget. And that I do think is an appropriate way of reading. I don't think the Rambam can be read as saying you must support a local Jewish business, but the Rambam does say one of the highest forms of tzedakah is if there is someone who needs a livelihood and you are able to help them sustain a livelihood, that's tzedakah.

Rav Avi: I'm really grateful that we got to take on this question, and it's obviously something that could feel really specific and could feel really broad and have huge implications for how we live our lives, especially, as we said, every day is market day, and we are facing a question like this every every single day.

And to the questioner, we wish you just the best of luck with your local Judaica store.

Rav Eitan: Yes, thank you for the service to our community, and hopefully folks who are listening will redouble their investment in the value of what you offer.

Rav Avi: Thanks.

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