Breaking a Monopoly

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by R. Gil Student

I. Competing Bids

In approximately 1547, one litigant (“Shimon”) bought a region’s liquor monopoly for three years from the local nobleman. Before the three years were done, someone else (“Reuven”) bought the monopoly for the next three years for a higher price. Shimon complained that Reuven elbowed into his territory and stole his livelihood. The two litigants agreed to have their dispute adjudicated by the rabbi of Ludmir. Rav Yitzchak ben Betzalel of Ludmir, whose grandson is known as the Taz, was the chief rabbi of the region and a leading Torah scholar of the time. Maharshal sent two of his responsa (nos. 1 & 15) to Rav Yitzchak for approval. Both litigants agreed that Rav Yitzchak would judge the case by himself, serving as a court by himself. Rav Yitzchak ruled that Shimon can retain the monopoly. Additionally, since Reuven raised the price, he must compensate Shimon for the extra cost.

Reuven was not satisfied with this conclusion and sent the case to Maharshal, Rav Shlomo Luria. Maharshal does not mention the name of the original rabbi (which we know from elsewhere) but strongly disagrees. In fact, he wrote such a lengthy treatise that it is divided into two in his published responsa (nos. 35 & 36). Maharshal is famous for his harsh critiques, even of leading Torah scholars whom he otherwise seems to have held in high esteem.

II. A Pauper’s Loaf

Earlier, we saw Maharshal’s criticism of Rav Yitzchak for judging this matter alone. In responsum 36, Maharshal addresses the actual question. He invokes the Gemara (Kiddushin 59a):

“Rav Giddel was engaging in the acquisition of a certain plot of land. In the meantime R. Abba went and purchased it. Rav Giddel went and complained about R. Abba to R. Zeira. R. Zeira went and complained about R. Abba to Rav Yitzchak Nappacha. Rav Yitzchak Nappacha said to him: Wait until R. Abba ascends to visit us for the pilgrimage Festival, when all come to hear the Festival sermon, on which occasion we can discuss this matter with him.

When R. Abba ascended Rav Yitzchak Nappacha found him and said to him: If a pauper is engaging in the acquisition of a loaf of bread that he found, and another came and took it from him, what is the rule? R. Abba said to him: The one who took it away is called wicked. R. Yitzchak Nappacha replied: But if so, what is the reason that the Master acted this way? Rav Giddel was negotiating the purchase of this land and you purchased it. R. Abba said to him: I did not know that Rav Giddel was trying to acquire the land.” (Koren Steinsaltz)

III. Finders Keepers

If someone is preparing to acquire something, you cannot quickly take it first. That is like taking the load of bread that a pauper is looking at. While the primary case is someone poor, the Gemara generalizes it to anyone who is ready to acquire something. However, Rashi and Rabbenu Tam fundamentally disagree about the application of this rule.

Rashi (ad loc., s.v. ani) says that it applies whether the person is looking at a potential purchase or something ownerless he happened to find. For example, you are teaching toward the last piece of potato kugel at a kiddush. According to Rashi, someone else can’t stick in his fork quickly and take it before you do. That would label him wicked, as described in the Gemara.

Rabbenu Tam (Tosafos, ad loc., s.v. ani) disagrees with his grandfather. He believes this rule only applies to a purchase. If you see something that you think you can buy now and sell it to someone else at a profit, no one is allowed to interfere with your business opportunity. They have to go looking for other opportunities. But when you find something ownerless, which is basically a gift, we can’t tell you to go look somewhere else for a gift. Gifts don’t come frequently.

Rabbenu Tam quotes as proof the Gemara (Bava Metzi’a 10a) that throwing your jacket or your body on an ownerless item does not acquire it for you. If you do not pick it up or perform some other formal acquisition, someone else can take it for himself. Clearly, even though you were in the process of acquiring the object, someone else can beat you to it without being called wicked. Rabbenu Tam explains that an ownerless item is different.

IV. Permission to Sell

Maharshal argues at length that most authorities agree with Rabbenu Tam. Rav Yosef Katz (She’eris Yosef, no. 17) disagrees and argues that most authorities follow Rashi, which is how Rav Yitzchak of Ludmir ruled. Maharshal further points out that we are dealing here with buying the right to sell liquor. There is no actual item under discussion, just a right. Therefore, it does not fall under the category of an acquisition and someone else may take it before you, according to Rabbenu Tam.

Rather, at most, Reuven caused Shimon indirect damage, for which he is not liable. Furthermore, Shimon had not yet agrees to terms on the next three years so everyone agrees that Reuven could intervene.

Rav Yosef Katz attempts to defend Rav Yitzchak, or at least to make his position defensible. However, Rav Katz considers this case different from that of the pauper. These rights do not guarantee a product or a profit. You still have to buy the liquor and sell it, possibly losing money.

Shimon only bought the monopoly for three years. It is a temporary purchase that automatically ends After that time period, the monopoly goes back for sale and anyone can buy them, even a gentile. Shimon has no more right to the monopoly than anyone else.

Rav Katz ends with a note of caution worth repeating. Reuven had argued that it is common practice to buy someone else’s after the time period ended. Rav Katz says that this does not automatically give permission to do so. You still have to follow halachah, even if common practice is to the contrary.

For some reason, Rav Yosef Katz’s responsum was not quoted by later authorities. Rav Binyamin Slonik, an influential student of Maharshal, faced a similar question (Masas Binyamin, no. 27). He quotes Maharshal but not She’eris Yosef, but rules like the original owner because of differences between his case and that of Maharshal. Shakh (Choshen Mishpat 237:1) quotes Maharshal and Masas Binyamin, but not She’eris Yosef.

About Gil Student

Rabbi Gil Student is the Publisher and Editor-in-Chief of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link of New Jersey, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student serves on the Executive Committee of the Rabbinical Council of America and as Director of the Halacha Commission of the Rabbinical Alliance of America. He also serves on the Editorial Board of Jewish Action magazine and the Board of OU Press. He has published five English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

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