A slice of hot pizza just from the oven with melted cheese dripping
A slice of hot pizza just from the oven with melted cheese dripping

Halachic Musings

By Rabbi Yair Hoffman

This is one of those halachic wars that made it in into the pages of the New York Times, written by a journalist with a decidedly Irish last name–Corey Kilgannon.

It involves two avant-garde pizza shops. There is Basil Pizza and Wine Bar, owned by Daniel Branover–which is highly successful. It has been open since 2010 and features high-end specialty pizzas, the kind with thin crusts and uniquely blended specialty sauces.

And then there is the new store on the block, Calabria, which opened up a month ago–and is in direct competition with Basil. They, too, offer thin crusts and specialty sauces. Both shops are in Crown Heights; Calabria opened across the street from Basil. The second shop looks quite different from the sleek and modern first shop. There is Hebrew writing on the ceiling. The menu is also chalked on a blackboard.

Even though they look different, the pizza is pretty similar in appearance.

Basil took Calabria to the Beis Yosef Beis Din in Boro Park. The beis din ruled that Calabria has to go to regular New York-style pizza. They did, sort of. It seems they may still be selling some of the similar pizza as well. The dayanim of the Beis Yosef Beis Din actually took a car service to Crown Heights to see things for themselves. They looked at the menu, prices, and geographic location.

The Issue: Hasagas G’vul

The issue under discussion is called hasagas g’vul in halachah. The Gemara in Bava Basra (21b) writes that one cannot set up a fishing net that is too close to the net of another fisherman and catch all of his fish. The fish were heading toward the original net.

The Grinding Mill Case. The Gemara further discusses another case. In the other case, someone is operating a grinding mill in an alley. Someone else opens up shop as well. Is this also a problem of hasagas g’vul?

The Two Opinions. The first opinion, that of Rav Huna, says it is a problem and that the first mill owner can prevent the second from opening up. The second view, Rav Huna bar Rav Yehoshua, says that it is permitted. The second view states that the second mill owner can say, “Whoever will come to me will come to me and whoever will come to you will come to you.” The Gemara indicates that the second view is the normative view–provided that the new competitor does not look to directly damage the first.

Ruling of the Shulchan Aruch. The Shulchan Aruch (CM 156:5) follows this second view. The second view is qualified, however. It is only permitted to one who lives in the same area. The Tur indicates, however, that if the outsider pays the local taxes he may open in that area. Rav Yosef Karo in his Shulchan Aruch accepts this view. However, the Rema cites a different caveat–that he may only open in a different alleyway in that city (see Tosfos Bava Basra 21b “v’ee.”)

The Aviasaf’s View. There is also a view cited by the Mordechai (Bava Basra, Siman 516). This view is that of the Aviasaf, who forbids opening up a store in an entrance to a cul-de-sac alley if there is a store farther into the cul-de-sac. In his commentary on the Tur, Rav Karo claims that this view follows the rejected first opinion.

The Rema in his Darchei Moshe (CM 156:4) explains the Aviasaf (also cited in the Hagaos Mordechai) in accordance with the second view.

There is also a fascinating responsum of the Rashba (3:83). He writes that while the second store may open, that owner cannot actively pursue customers of the first business.

In our case of the two avant-garde pizza shops, Basil accused the second shop of doing just that–even to the point of getting business information from their employees.

Slicing Up The Pie

Losing Business vs. Going Out of Business. The Pischei Teshuvah (156:3) distinguishes between when the second store will only hurt the first store and when it will put the first store out of business. He forbids the second type based upon the Chasam Sofer. The Chasam Sofer writes that even when the first store can support itself in some other way, it is still forbidden. This is also the view of the Masais Binyomin in a responsum (#27). Rav Moshe Feinstein, zt’l, (IM CM 1:38) cites the Chasam Sofer and rules like him.

Is Metro New York One Big Marketplace? Rav Yisroel Belsky, zt’l, once told this author of a ruling of Rav Moshe, zt’l, that in New York City and its environs, in many industries, it is considered like a shuk–a marketplace–and restrictions on competition are not applied. Many poskim subscribe to this opinion as well. One must see a competent posek to determine the exact parameters of this view.

When the Public Will Suffer. There is another fascinating decision in the Rema (CM 156:7) that states that if the first merchant’s prices were significantly higher, then it may be forbidden to disallow the competitor. The Nemukei Yosef points out that the price differential must be significant. Otherwise, each person would simply lower their price just a bit in order to permit it. By the same token, if there is a large qualitative difference between the two products, poskim do not necessarily disallow the competitor. It goes without saying that the new competitor should never actively go after the first business’s customers.

No More Horse-and-Buggy. Rav Asher Weiss, shlita (Responsa Minchas Asher Vol. I #105) presents a fascinating point. When the matter is of significant consequence to the public at large, halachah would never negate the public advantage for the economic benefit of the few business owners. Thus, he explains, halachah would never forbid the development of motor vehicles in order to save the parnassah of the wagon manufacturers.

The author can be reached at Yairhoffman2@gmail.com.

 

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