Selected Halachos Related to Parshas Ki Savo
By Rabbi Doniel Neustadt
The following is a discussion of Halachic topics related to the Parsha of the week.For final rulings, consult your Rav.
QUESTION: A person is negotiating the purchase of a house or a car. May
another person come and bid for the item?
DISCUSSION: Three factors must be determined in order to answer this
question: 1) The extent of the negotiations; 2) The availability of other
homes or cars of similar [or slightly different] size, location, condition,
etc.; 3) The amount of money that the new bidder will save by buying this
item and not another one which is available to him. Based on these three
factors, the practical halachah breaks down as follows:
If the buyer and seller have agreed [or are very close to agreeing(1)] on a
price, and there are similar items available on the market, then it is
prohibited for another person to bid for the item(2). Bais din has the
right and duty to object to his bidding and to block him from doing so. If
he disregards the halachah and places a bid anyway, he may be referred to as
a rasha, a wicked person, publicly(3). Even if he has already bought and
taken possession of the item, he is still duty bound to return it lest he be
referred to as a rasha(4). Bais din, however, does not have the power to
forcibly remove it from his possession once he has already obtained it.
If the buyer and seller agreed [or are close to agreeing] on a price, but
there are no similar items available on the market, then it is permitted,
according to the basic halachah, for the new bidder to bid for the item(5).
A ba'al nefesh, though, should refrain from doing so(6).
If the buyer and seller agreed [or are close to agreeing] on a price, and
there are similar items available on the market, but the new bidder will
save a big amount of money(7) if his bid is accepted, there are many
poskim(8) who allow him to bid on the item while other poskim do not accept
this leniency(9). Although bais din cannot get involved in such a case, a
ba'al nefesh should refrain from entering into this position.
If the buyer and seller did not agree [or come close to agreeing] on a
price, then it is permitted for the new bidder to put in a bid for the item.
If, however, the item came up for sale only as a result of the first
bidder's effort [e.g., the first bidder convinced the seller to put the item
on the market], some poskim hold that a newcomer may not come and place a
bid on the item(10).
QUESTION: It has become customary for Jewish book publishers and cassette
tape producers to prohibit copying or otherwise reproducing any part of
their materials under any circumstances. What, if any, is the halachic
background for this prohibition?
DISCUSSION: The poskim, in their written works, hardly deal with this issue.
It is important, therefore, to present some of the arguments that may be
made on either side of the question(11):
On the one hand, it may be permissible to copy such material based, in
part, on the following arguments:
Complete Ownership - When one buys a book or a tape he may do with it
whatever he pleases. He may destroy it, lend it to a friend, or make a copy
either for himself or for a friend. Since, after all, he paid for the item
in full, he is entitled to unrestricted use12;
Intangibles - Many poskim maintain that it is halachically permissible for
one to benefit from "intangibles" such as another person's idea or
invention. Once the creator has committed his wisdom or talent to paper or
tape, he no longer owns anything of material value. If so, nothing tangible
is being taken away from the rightful owner(13).
But a strong case may be made for prohibiting copying and reproducing
Benefiting from another person's labor - Although, as stated, many poskim
do not expressly prohibit benefiting from another person's creativity, when
creativity is one's business the rules are different. If by copying someone
else's creation you are causing him a business loss, it may be prohibited
according to the majority of the poskim(14). [According to a minority view,
bais din even has the power to force the copier to pay the publisher
whatever profit he has generated from his copying(15).]
Government law - In many countries the law prohibits copying or reproducing
materials in any form. Halachah follows government law whenever the intent
is to protect the safety and welfare of the citizenry(16).
Retention of Ownership - The publisher may claim that his wares are for
sale subject to certain restrictions on the buyer. This parallels the
Talmudic case where a seller has the right to withhold certain rights from a
buyer(17), provided that he does so at the time of sale. Since the
publishers state explicitly that copying is forbidden, it may be argued that
their statement is tantamount to a "provisional sale"(18). This is known in
halachah as shiur b'mechirah, i.e., a sale with partial retention of
Intangibles - Some poskim do not differentiate between tangible and
intangible possessions. In their opinion, the owner of intangible items has
the halachic power to prohibit others from infringing on his ownership(19).
None of the above arguments, either pro or con, are exhaustive or
completely irrefutable, especially as regards copying for personal use(20).
It goes without saying, however, that one who copies a published or a taped
work against the wishes of the publisher or producer stands a good chance of
transgressing a serious, possibly Biblical, prohibition. Indeed, Harav M.
Feinstein(21) writes that one may not copy a Torah cassette tape without the
explicit consent of the producer. He goes on to say that one who does so
commits a form of theft, but he does not explain the source for his ruling
or the reasoning behind it(22). Other prominent rabbonim have rendered
similar rulings orally(23).
Harav S. Wosner(24) allows copying individual pages from a published book
for classroom use. A careful reading of his responsum implies, however, that
this is permitted only when we can reasonably assume that the publisher
would have no objection. If the publisher, however, clearly objects, it
seems that it is prohibited to disregard his objection(25).
Note, however, that there are certain publishers and producers who do not
object to copying or reproducing their work under certain limited
conditions, such as classroom use. In any case, one must be particular to
ask each company or author if and how they allow copying, for laxness could
result in the violation of a serious prohibition.
A possible exception to the above is when a book is out of print and no
plans for reprinting are underway. One can argue that in such a case the
publisher or author has nothing to lose, for there is no possibility for
making a sale. Indeed, some poskim advance the argument that the author is
pleased when his work is studied or heard by additional people. A rav should
QUESTION: When faced with a choice, is there any reason to patronize a
Jewish-owned store rather than a non-Jewish-owned store?
DISCUSSION: Rashi in Parshas Behar(26) quotes Toras Kohanim that states that
one should patronize a Jew when possible. Although this is not recorded as
law in the Rambam and Shulchan Aruch, the Chofetz Chayim(27) rules that one
should follow this policy. Even if the Jewish-owned business is located a
bit further away and it will take longer to shop there, it is still a
mitzvah to give preference to the Jewish-owned establishment(28).
One must shop at Jewish-owned store, however, only when the price is the
same or slightly higher. If the price is much higher, then there is no
mitzvah to patronize it. The poskim do not give a precise definition of what
is considered "much higher" and what is considered "slightly higher"(29),
and it may, therefore, be up to each individual to decide this for himself.
When judging what is considered much higher or slightly higher, the
judgment may be based on the total outlay of money, not on the price
differences per item. For instance, if shopping at the non-Jewish store will
yield an overall savings of $20, even though the savings per item is only a
few cents, $20 may be considered a significant difference and it would be
permissible to shop at the non-Jewish store(30).
The same ruling applies to differences in quality of goods or service. If
there is only a slight difference, then it is a mitzvah to support the
Jewish businessman. If there is a great disparity, then it is not a mitzvah.
There is no mitzvah to patronize a Jew who is classified as a mumar(31).
The rules of preferring a Jew over a non-Jew apply to retail trade only, not
1 See Pischei Teshuvah 237:3 and Aruch ha-Shulchan 237:1 quoting Perishah,
who maintains that as long as the two parties were near agreement on a
price, it is considered as if an agreement was reached in regards to this
halachah. See Igros Moshe C.M. 1:60 who explains that this is the position
of the Rama as well. Shulchan Aruch Harav, however, does not mention this
2 C.M. 237:1. Even if the new bidder did not realize that a previous bid was
placed on the house, he is still required to withdraw his bid once he finds
out about the previous agreement.
3 If the new bidder did not follow the halachah and bid on the item and now
the seller is ready to sell to him, it is permitted for a third person to
bid on the house at this time; Aruch ha-Shulchan 237:2.
4 In the case when his bid was made while yet unaware of the previous
agreement, some poksim (Pischei Teshuvah; Aruch ha-Shulchan 237:2) maintain
that he cannot be referred to as a rasha if he refuses to return the house
once he has obtained it. Other poskim, however, disagree and hold that even
in that case he may be referred to as a rasha (Keneses ha-Gedolah, Tur 19;
Igros Moshe C.M. 1:60).
5 Rama 237:1; M'harshal 36; Ma'asas Binyamin 27, based on the view of R' Tam
who permits this type of bidding. According to the Nesivos 237:3, Shulchan
Aruch, too, agrees to this ruling.
6 Shulchan Aruch Harav (Hasogas Gevul 10), Har Tzvi O.C. 2:8 and Igros Moshe
E.H. 1:91 based on the view of Rashi who prohibits this type of bid. See
also Maharal (Nesivos Olam, Nesiv ha-Tzedek 3) who strongly endorses Rashi's
approach to this question.
7 This is defined as being a "real bargain", savings that are undisputedly
substantial. When it is unclear if the amount being saved is substantial, a
bais din must be consulted.
8 Rama C.M. 237:1; Avnei Nezer C.M. 17. [Igros Moshe C.M. 1:60 seems to rule
in accordance with this view.]
9 Shach 237:3 based on the view of the Ramban; Aruch ha-Shulchan 237:1.
10 Teshuvos M'Rashdam 259. See, however, Teshuvos Chasam Sofer C.M. 79 who
seems to disagree. See also Masa'as Binyamin 27, Nachlas Tzvi C.M. 237 and
Minchas Yitzchak 5:77.
11 See The Journal of Halacha and Contemporary Society # 21, pg. 84-96, for
an excellent review of this subject by Rabbi Yisroel Schneider.
12 See Chasam Sofer C.M. O.C. 2 who debates this question.
13 See Beis Yitzchok Y.D. 2:75 who discusses this theory.
14 There is a Talmudic basis for this claim based on the view of Tosfos
Kiddushin 59a, in the name of R' Meir, which is endorsed as practical
halachah by many of the authorities, see Rashdam 259; Chasam Sofer C.M. 79;
Parashas Mordechai C.M. 67; Nachlas Tzvi C.M. 237. M'harsham 1:202.
15 Masa'as Binyomin 27.
16 Beis Yitzchak Y.D. 2:75, based on the Shach Y.D. 165:8.
17 See Bava Metzia 34a where the concept of shiur is mentioned, concerning
one who sells sheep yet retains for himself its fleece and offspring. See
also Bava Basra 63a. The comparison, though, is not exact, since in our case
the seller retains something intangible.
18 This argument is advanced by Rabbi N.Z Goldberg in Techumin, vol. 6, pg.
181-182. See also vol. 7, pg. 360-380.
19 See Shoel u'Maishiv (Kamma, 1:44). See also Minchas Yitzchak 9:153 who
proves that this was the view of the Chofetz Chaim.
20 See Pischei Choshen, Geneiva, pg. 287, who tends to be lenient when
copying tapes for personal use. He does not, however, issue a clear
21 Igros Moshe O.C. 4:40-19.
22 It is also not clear if in the case discussed there the copier bought the
tape or merely borrowed it for the sake of copying it.
23 See Heart to Heart Talks, pg. 54, quoting Harav C.P. Scheinberg.
24 Shevet ha-Levi 4:202.
25 See Pischei Choshen, Geneiva, pg. 287, who disagrees altogether with
Harav Wosner's lenient ruing concerning copying pages for classroom use. See
also Teshuvos Shraga ha-Meir 4:77 who prohibits copying both published
materials or tapes even for personal use as long as the item is available
26 25:14. It is also quoted as practical halachah in Teshuvos Tashbatz 3:151
and Teshuvos Rama 10.
27 Ahavas Chesed 5:7 and Nesiv ha-Chesed 12.
28 M'haram Shick C.M. 31.
29 See Minchas Yitzchak 3:129 who remains undecided on this issue.
30 See Kol ha-Torah, vol. 42, pg. 305.
31 Teshuvos Chasam Sofer C.M. 134, since the word "amisecha" appears in the
verse which is the source of this halachah; Minchas Yitzchak 3:129.
32 M'haram Shick C.M. 31; Ahavas Chesed 5:3.
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Rabbi Neustadt is the principal of YavneTeachers' College in Cleveland, Ohio. He is also the Magid Shiur of a dailyMishna Berurah class at Congregation Shomre Shabbos.
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