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The Challenge of Wealth - Class 11

Parshas Vayeishev

By Dr. Meir Tamari

When he entered Eretz Yisrael, Yaakov's first act was the purchase of a piece of land in Shechem [present day Nablus]. This is the second real estate transaction of the Patriarchs, yet it differs from the first one. Then, Avraham had purchased the Ma'arat Hamachpelah as a burial site; there is no indication that this was Yaakov's purpose. So too, it is very unlikely that he intended to use it for crops, since he lived in Hebron and his sons wandered widely to find pasture for their flocks, rather than raise grain or plant orchards. Therefore, it seems that we may find a spiritual decision here that proposes an ethical dimension to buying and selling, beyond the legal requirements of full disclosure and the prevention of fraud or oppression required by halakhah.

Even though Yaakov believed that his descendants would inherit Eretz Yisrael as Hashem had promised the Avot, nevertheless he understood that the nation whose mission it is to do tzedakah and justice, had to apply this also to its transactions with the nations of the world. Therefore, in addition to the Divine promise, Israel had to ensure that their inheritance should not be seen neither as peaceful displacement of the dwellers there, nor as the spoils of war. Rather, they would settle there through visible purchases in the open market that would publicly guarantee the rights of the original inhabitants. The purchase of the land in Shechem was meant to set this example for future generations.(Harav A.Y. Hacohen Kook, "Maamarei HaRoeh, pp 252-3; This was written after the Arab riots in 1927).

Reinforcement for economic behavior that would reflect an ethical imperative and a moral wisdom in buying and selling comes from the haftarah of parshat Vayieshev. There, Amos prophesies, "for three transgressions and for four, I will not to turn away punishment; because they sold the righteous for silver and the poor for a pair of shoes"(3: 6). This connects the haftarah to the sale of Joseph by his brethren; a sin that caused the exile to Egypt, and was later punished by the death of the Ten Martyrs at the time of the Romans. Rashi relates the verse in Amos to an immoral yet legal action in the real estate market. He, relying on the Hebrew root of shoe, naal, that denotes closing of the foot in contrast to the sandal which is open, explains that the rich people bought up the fields that surrounded those of poor people and thereby forced them to sell their land against their will. This procedure has often been repeated throughout the centuries and in many different countries; for example the enclosures in late medieval England, in the gentrification of the centers of modern cities and even in the case of Enron when the directors, knowing the weakness of the Corporation, sold their own stock while preventing the employees to sell theirs.

Sometimes it is sufficient for the terms of a contract merely to be implied by one's conduct or conversation, without written terms, yet considered halakhically to be binding. In the Talmudic story, Rabbi Safra was standing in prayer when a buyer approached him to purchase his goods. When the buyer received no reaction to his original offer, he raised the price, taking the rabbi's silence for rejection. As the prayer continued, so the bidding rose, until finally Rabbi Safra showed that he had finished his prayers. Hastily, the merchant counted out the coins of his last offer only to find that the Rabbi returned the difference between that and his first offer (Baba Metzia, 49b). A modern responsum dealing with price changes shows how this idea became integrated into applied rabbinic thinking. A storekeeper had displayed the prices on all the articles in the store. When the market price on these goods rose, the question of changing the prices without prior cancellation of the advertisement was addressed to a rabbinic authority in New York, who wrote the following: “when prices in the market move higher, the storekeeper may also raise his own prices. However, in this case the further question of keeping one's word is involved. By displaying the prices in the store, he has signified his agreement to these prices even though the agreement was made in writing rather than verbally; the latter considered more binding. Now by changing the price he shows himself to be lacking in trust in G-d [to provide him with his livelihood even if he maintains the promise of the lower price level]. This is in contrast to the actions of Rabbi Safra described in the Talmud. (Beit Avi, part 4, section 185)

Halakha saw an ethical problem in the intervention of a new party into an ongoing negotiation to buy real estate, obtain a contract or gain employment. Basically this flow's from the Talmudic dictum that when a poor man is examining a cake for sale, ani mehapech, he who forestalls him is called an evil-doer (Kiddushin, 29a). Some authorities hold that the whole concept of forestalling is only a moral injunction, not enforceable in the court; a form of admirable business behavior but not an economic right. There are others, however, who hold that it is halakhically forbidden, as we need read in a modern responsum: "You ask me concerning one of the teachers who was approached by a parent to teach his son during the summer vacation. While the negotiations were being conducted another teacher accepted the position. Now the first teacher claims redress according to ‘ani mehapech’. My answer is that the second teacher may not accept the position even though he had no knowledge of the negotiations and if even if he thought that they had failed. We have to also consider the opinion of the Rama in Choshen Mishpat [section 103] that the concept of forestalling does not apply in those cases where the seller asks a higher price than the one offered by the buyer. This has been modified to include only those cases where the buyer has shown that he is definitely rejecting the seller’s offer. In other cases, like the present one where the negotiations are still continuing, the intervention of the third party causes the seller to refuse the buyer's offer, so it is a case of ‘hasagat g’vul [the biblical injunction against removing a neighbor’s landmark, understood by the rabbis to include depriving another of a livelihood] which is forbidden” (Iggrot Moshe Choshen Mishpat, part 1,section 59).

Until modern times almost all economic activities were conducted under charters, licensing and monopolistic privilege. Generally speaking, since the holders of these restrictive agreements had made investments in acquiring them, they became assets that were protected against forestalling by other outsiders who would offer a high price to the grantor of such rights. Therefore it was forbidden for anybody to infringe on these rights. This flows from the Talmudic case requiring fishermen to move their nets the distance of fish’s swim from the net already cast. Rabbenu Tam holds that such restrictions on competition can be applied because the other fishermen are destroying the livelihood of the first [as distinct from only reducing it, which is permitted], and because of the specialized knowledge of the fisherman or because the fish gather there on account of an action taken [that is an investment made] by the first (Kiddushin, 59a; see also T’shuvot Maharik, section 132).

In modern times, this halakhic principal for granting such monopoly rights may serve as a guideline in those industries such as public transportation, telecommunication and utilities that require massive investment. In a later discussion we will see how action was taken in order to guarantee that the public interest and welfare would always be preserved against the excesses of monopoly holders.


Copyright © 2002 by Rabbi Meir Tamari and Project Genesis, Inc.

Dr. Tamari is a renowned economist, Jewish scholar, and founder of the Center For Business Ethics (www.besr.org) in Jerusalem.


 






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