by Rabbi Yair Hoffman
It is one of an employer’s biggest worries. Finally, after a number of years, good help has arrived. The new housekeeper straightens out the daily mess. She cleans well. She deep-cleans the bathroom. She even does things without being told. Most importantly, she is excellent with the children.
And then, suddenly, it happens.
A neighbor, an acquaintance, or just someone who spotted her out and about with the children hires her away.
“I will offer you the same money with better hours.”
“I have fewer kids to watch and will pay you even more.”
The exact wording that results in this dastardly deed is irrelevant. The point is that she is gone now, and loyalty between two friends or two neighbors has been irretrievably lost.
The problem is neither new nor uncommon. Indeed, one person even quipped, “If you want to keep a friend, don’t share a cleaning lady.”
The question is, how does halachah deal with the issue? Is it a clear-cut prohibition? Is there any halachic authority that permits such activity?
The Underlying Issue: ‘Ani HaMehapech’
The underlying issue in Jewish law is called “ani ha’mehapech b’chararah”—literally, this refers to a poor person who is looking at a piece of cake—it is forbidden to take it away from him.
The Talmud (Kiddushin 59a) tells us that it is forbidden to purchase an item when someone else has already entered into an agreement to purchase the item and a price has been agreed upon. The Gemara gives an illustration of such a case: Rav Gidel wished to purchase a certain property and Rav Abba ended up buying it. Although that case turned out different, it is clear from the Gemara that one who does so knowingly is labeled a rasha, an evildoer. This is also the halachah as codified in the Choshen Mishpat section of the Shulchan Aruch (237:1).
Rashi explains that the concept also applies to someone who is looking to obtain something for free, and it is not limited to cases of business dealings. The Baalei Tosfos disagree with Rashi and explain, based upon answering an apparent contradiction from another section of the Talmud, that it only applies to business dealings. The reasoning is that free items are almost impossible to be found. Therefore, the prohibition of ani ha’mehapech would not apply to something so rare.
We will see that whether the author of the Shulchan Aruch rules like Tosfos or Rashi is not so clear-cut. In 237:1, he cites the view of Rashi in the second opinion that he records. (In the Yad Malachi, he writes that, as a rule of the thumb, the second opinion recorded is always the final ruling.) Yet in 237:2 it seems that the Shulchan Aruch is siding with the Baalei Tosfos. Indeed, the question of how the Shulchan Aruch rules may affect the underlying question we are dealing with.
That question, in fact, is: Does the prohibition of ani ha’mehapech also apply to hiring another person’s employee?
Let us look at the next case in the Shulchan Aruch. There the Shulchan Aruch rules that it is permitted to hire someone else’s tutor of Torah. What? It is permitted to poach someone else’s Torah tutor? Yes, it seems that, in fact, that is the halachah. Is it a moral thing to do? That is another question.
Why A Torah Tutor Is Different
The SMA’s explanation. Rav Yehoshua HaKohen Falk (1555–1614), the SMA explains (237:8) that since the essence of teaching Torah is to explain the concepts and to delve deeply in it, every Torah teacher is different, so finding the appropriate one is akin to finding something extremely rare. Since every teacher explains the Torah in a different manner, it is like not having two of the same items. The Yam Shel Shlomo (siman 2) concurs with this view. The Nesivos also states clearly that the Shulchan Aruch’s ruling that it is permitted to hire away another person’s Torah tutor seems to imply that he rules like Tosfos and not Rashi.
The Aruch HaShulchan’s explanation. The Aruch HaShulchan (C.M. 237:5), however, gives a different explanation for the Shulchan Aruch’s leniency regarding a Torah tutor. He writes that since it is a matter of a d’var mitzvah, it is permitted—even according to Rashi. The Aruch HaShulchan expresses the idea that the Shulchan Aruch is consistently ruling in accordance with Rashi’s view—the second recorded opinion.
Nonetheless, the Rema rules in accordance with the view of Tosfos that it does not apply to cases of hefker (abandoned items). Since the Tur, the Rosh, and virtually all other poskim rule like the Baalei Tosfos here, Ashkenazic halachah is that it does not apply to the rare cases of free items.
Employees And Housekeepers
So let’s get back to employees and housekeepers. Would they fall in the same category as the melamed, the Torah tutor cited in the second paragraph of siman 237? It would depend on whether this is such a highly specialized field or whether employees are so rare that it would be otherwise impossible to find someone.
In regard to a case involving specialized factory workers, Rav Avraham Bornstein (1838–1910), author of the Avnei Nezer (C.M. 17) rules that the leniency of a melamed, found in paragraph 2, also applies to all employees. He ruled in the matter of employees of a button factory in Neustadt. Sephardim would argue that it only applies to a teacher because that is a mitzvah; other employees are not included in this leniency.
There is yet another issue. The Ran cites the Ramban that the issue of ani ha’mehapech applies only in a case where the person from whom the item is being taken away is actually poor. If the person is wealthy, however, ani ha’mehapech does not apply—unless the item is actually not to be found. The Rema actually rules in accordance with this Ran (C.M. 237:2).
So, what is the halachah in the case of a baby-sitter? Clearly there is a distinction between button workers, who do a specialty type of work, and babysitting or cleaning, as there are numerous people that can watch children. Thus it would be forbidden to take away a person’s employee. Therefore, anyone who does so would be labeled an evildoer.
Is It Biblical Or Rabbinic?
Another question is whether the prohibition of ani ha’mehapech is a rabbinic one or a biblical one. Rav Aharon Leib Shteinman, shlita, in his Ayeles HaShachar on Kiddushin (page 288), cites a responsum of the Chasam Sofer (Choshen Mishpat #79) that entering into someone else’s umnus—his business—is in fact a biblical prohibition. Rav Shteinman remains with a question on this matter.
The Pischei Teshuvah (237:2) cites the Sefer Arah D’rabanan (499), who also concludes that it is unclear. The Pischei Teshuvah himself quotes the Maharit (Vol. I chiddushim on the Rif in Kiddushin) that the person is called a rasha, midibrei kabbalah. It is unclear to this author as to what the Maharit means or from where he derives it. What might be the biblical prohibition?
The Mordechai in Kiddushin (524) explains that the Baalei Tosfos hold that it is a prohibition stated in Parashas Va’Eschanan (Devarim 6:18) of “V’asisa ha’yashar v’hatov—and you shall do what is straight and good” in the manner in which one conducts affairs of business. It therefore makes sense why it applies only to business dealings, but does not apply to hard-to-find items.
Rashi, on the other hand, could be of the view that the prohibition is based upon some other factor or pasuk that would apply equally to matters of business or to found items. It may, for example, be a negation of the pasuk of v’ahavta l’reiacha kamocha—love thy neighbor as thyself. This would apply across the board.
Undoing The Damage
What should a person do if one went ahead and stole another’s employee? The Pischei Teshuvah writes that it is a midas chassidus, an act of righteousness, to undo it. The Pischei Teshuvah further cites the Chemdas Shlomo (#4) that his name should be announced in shul, informing the congregation that he has done such an act, in order to cause him to refrain from doing it in the future.
The author can be reached at Yairhoffman2@gmail.com.