The following is a discussion of Halachic topics related to the Parsha of the week.
For final rulings, consult your Rav.
There he established a decree and an ordinance (14:25)
In Mara they were given the rules of civil law... (Rashi)
BUSINESS COMPETITION BETWEEN INDIVIDUALS: WHEN IS IT PROPER?
QUESTION: An employer hires a worker on condition that he will
not enter into competition with him at a later date. Years
later, the employee wants to start a business on his own which
may compete with his former employer. Does the halachah view
this as "stealing" from his former employer? May bais din
protest his behavior?
DISCUSSION: The answer to the above question depends on the
specific circumstances: If the employee was hired as an
apprentice and the employer trained him, then the employee may
not strike out on his own if he will be competing with his
former employer. If, however, the employee was not trained by
the employer but was hired as an experienced worker, then it is
not considered "stealing" if he decides at a later date to open
his own business(1).
The difference between the two cases cited above is as follows:
When an employee is hired and paid for his services, the
employer does not own his services forever. Once his employment
is terminated, the former employer cannot control his
opportunities indefinitely, or even for a specific period of
time. Even if he made a pre-condition with him, it is not
halachically binding(2) and bais din has no right to stop him
from doing as he pleases(3). If, however, the employer trained
him, then he may demand payment from the employee for teaching
him the trade. His "payment" could be in the form of a promise
that he will not compete with him in the future. If the employee
breaks his promise, then he is "stealing" a form of "payment"
from his former employer. This may be stopped by a bais din.
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(4):
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 use(5);
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(6).
But a strong case may be made for PROHIBITING copying and
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(7). [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
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
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(10), 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"(11). This is known in
halachah as shiur b'mechirah, i.e., a sale with partial
retention of ownership.
INTANGIBLES - Some poskim do not differentiate between tangible
or intangible possessions. In their opinion, the owner of
intangible items has the halachic power to prohibit others from
infringing on his ownership(12).
None of the above arguments, either pro or con, are exhaustive
or completely irrefutable, especially as regards copying for
personal use(13). 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(14) 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(15). Other prominent rabbonim have rendered similar rulings
Harav S. Wosner(16) 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(17).
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 be
QUESTION: When faced with a choice, is there any reason to
patronize a Jewish-owned store rather than a non-Jewish-owned
DISCUSSION: Rashi in Parshas Behar(18) 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 Chaim(19) 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(20).
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"(21), and it
may, therefore, be up to each individual to decide this for
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(22).
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
The rules of preferring a Jew over a non-Jew apply to retail
trade only, not to wholesalers(24).
2. There are, however, halachic means which an employer can
ensure that his employer will not compete with him in the
future. For the exact method, a rav should be consulted.
3. He will, though, have to deal with the fact the he is breaking
his word to the employer. We are concerned here only with the
employer's legal rights, not the employee's moral obligation.
4. See The Journal of Halacha and Contemporary Society # 21, pg.
84-96, for an excellent review of this subject by Rabbi Yisroel
5. See Chasam Sofer C.M. O.C. 2 who debates this question.
6. See Beis Yitzchok Y.D. 2:75 who discusses this theory.
7. 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.
8. Masa'as Binyomin 27.
9. Beis Yitzchak Y.D. 2:75, based on the Shach Y.D. 165:8.
10. 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
11. This argument is advanced by Rabbi N.Z Goldberg in Techumin,
vol. 6, pg. 181-182. See also vol. 7, pg. 360-380.
12. See Shoel u'Maishiv (Kamma, 1:44). See also Minchas Yitzchak
9:153 who proves that this was the view of the Chofetz Chaim.
13. See Pischei Choshen, Geneiva, pg. 287, who tends to be
lenient when copying tapes for personal use. He does not,
however, issue a clear decision.
14. Igros Moshe O.C. 4:40-19.
15. It is also not clear if in the case discussed there the
copier bought the tape or merely borrowed it for the sake of
16. Shevet ha-Levi 4:202.
17. See Pischei Choshen, Geneiva, pg. 287, who disagrees
altogether with Harav Wosner's lenient ruing concerning copying
pages for classroom use.
18. 25:14. It is also quoted as practical halachah in Teshuvos
Tashbatz 3:151 and Teshuvos Rama 10.
19. Ahavas Chesed 5:7 and Nesiv ha-Chesed 12.
20. M'haram Shick C.M. 31.
21. See Minchas Yitzchak 3:129 who remains undecided on this
22. See Kol ha-Torah, vol. 42, pg. 305.
23. 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.
24. M'haram Shick C.M. 31; Ahavas Chesed 5:3.
In honor of the Wedding Anniversary of
HaRav Doniel and Shoshana Schur,
OD MAYAH V'ESRIM SHANA,
with love from their children,
grandchildren and great grand children.