Hasagas Gvul in Torah education and occupations-Can an infringement claim be brought against a new Torah class, new Yeshiva, new Rabbi in town, and new Chabad house?
Background: Secular law in most of the modern world follows the economic philosophy of capitalism, and allows free unrestrained opening of businesses and competition, thus destroying the legal protection of a monopoly. Judaism, however, recognizes certain restrictions upon the opening of a new business if it will infringe on the income of a current business, and thus certain monopoly rights are granted to business owners under mitigating circumstances, as defined by Halacha.[1] This concept is known in Halacha as “Hasagas Gevul”, or infringing onto another’s property. Often, two Jewish businesses will go to a Jewish court of law, or Beit Din, in order to argue out an infringement claim, and see if the mitigating circumstances are met to allow a monopoly of that business in that area. We will now analyze if the restrictions of Hasagas Gevul apply also towards spiritual matters, such as opening a new Torah class in a community, opening a new Yeshiva, or a new Shul, or Chabad house, thus creating competition with a current running Torah class
The law:[2] It is permitted for a Milameid who teaches children Torah to open a school in an area that already contains a Milameid who teaches children. This applies whether the intended audience of the new teacher is for students who are not yet registered in the other teacher’s class, or even if the intent is to create competition and have students who are enrolled in the first class come join the second class. It is permitted for the new Milameid to open his school even right next door to the original Milameid.[3] Likewise, a Torah scholar may move to a new city and open a Torah class to the public even if the city already contains an official community Rav who teaches Torah to the public. This applies even if by doing so one slightly infringes on the income of the original Rav.[4] This applies even if the community Rav is much older than the new Rabbi.[5] [Likewise, one may do Mivtzaim and put on Tefillin on any Jew even if there is a set Shliach in the city.[6]] The above, however, only applies towards spiritual matters, such as teaching a Torah class and the like that do not infringe on the income of the other Rav.[7] However, regarding spiritual matters which serve as a source of income, the concept and restrictions of Hasagas Gevul certainly apply in Halachically mitigating circumstances, and the matter must be brought to arbitration by a Beis Din or an agreed upon Rav. This includes the following:
- Misader Kiddushin:[8] There are certain limitations against a person being Misader Kiddushin in a city which contains an appointed community Rav who performs the Kiddushin.
- A Mohel:[9] One Mohel is restricted from infringing on the territorial rights of another Mohel, if the Halachically mitigating circumstances are met.
- A Shul or Yeshiva or Beis Chabad:[10] There are restrictions against opening a new Shul if this will infringe on the membership of another Shul in the vicinity, and the salary of its leaders. [Likewise, there may be restrictions against opening a new Yeshiva if this will infringe on the enrollment of another Yeshiva in the vicinity, and the salary of its staff.[11] Likewise, there are restrictions against opening a new Beis Chabad if this will infringe on the income of another Beis Chabad in the vicinity.[12]]
- A Sefarim or Judaica store:[13] There are restrictions against opening a new Sefarim or Judaica store if this will infringe on the income of another store in the vicinity.
- Kashrus organization:[14] There are restrictions against giving a Hechsher to a business if this will infringe on the income of another Hechsher who already gives supervision over that product.
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Conclusion: While it is legally permitted to open a new Torah class in a community that already contains a Rav, there are restrictions against opening a Torah institution, or begin a profession of Kedusha, if it may infringe on the income of an already established institution, and in all cases the two parties are to speak with an agreed upon Rav or Beis Din for arbitration. Even in the former case which permits one to teach Torah classes in the city which contains a Rav, it is proper to speak with the Rav beforehand if the matter may cause friction.
The Rebbe on opening a new Beis Chabad which infringes a currently established Chabad house:[15] Free translation: It is possible for one to build a house of Torah, a Beis Chabad, but it will not be a place where Hashem dwells. How can this be? If the home is not built according to Shulchan Aruch, and transgresses the laws of Hasagas Gevul, as this home is a Mitzvah Haba Beaveira. Hasagas Gevul causes the victim to cry to Hashem against the fact that his income was infringed and the commotion he makes prevents the Shechina from dwelling in the others home. Its obvious that everything involved in establishing a Beis Chabad must be in accordance to Shulchan Aruch, Toras Moshe, without any infractions of Hasagas Gevul. So while we encourage the opening of many new Batei Chabad, it must be done with the sensitivity not to infringe on the territory of others. At the same time, however, we must make clear the following: There are matters to which Hasagas Gevul does not apply, such as teaching Torah and the like. Accordingly, we need to negate the mistake of the fools who cry foul play if another Jew desires to open a Beis Chabad due to the fact that he will steal his right of putting Tefillin onto people, or that he will diminish his honor and respect in the eyes of the public. Their foolishness is so great, that they don’t suffice with just shutting down the other person’s operations, but demands that he leave the city all together, thinking that the entire city and its suburbs all belong to him. Its obvious that regarding all the above, it must be given to a Rav to arbitrate according to Halacha, and the problems all begin when people take the law into their own hands and make their own rulings. |
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[1] See the two opinions of Rav Huna and Rav Huna Brei Derav Yehoshua in Bava Basra 21b; Sanhedrin 81a “The intent of the verse which states that he did not defile his friends wife is to say that he did not infringe on another’s business.”; Makos 24a “The meaning of the verse that he did not do evil to his friend is that he did not infringe on another’s business.”; Rambam Hilchos Shechienim 6:8 [rules like Rav Huna son of Yehoshua, and so rules Rabbeinu Chananel and Tosafus]; Admur Hilchos Hefker and Hasagas Gevul 10-13; Michaber and Rama C.M. 156:5-7; Beis Yosef C.M. 156; Darkei Moshe 156:3; Shut Harama 10; Pischeiy Teshuvah 156:3; Chasam Sofer 5:79; Igros Moshe C.M. 1:38
[2] Shulchan Aruch Y.D. 245:22
[3] Michaber Y.D. 245:22; Rambam Talmud Torah 2:7; Rav Yosef in Bava Basra 21b; See Sicha of Rebbe 10th Shevat 1955
The reason: The verse states “Hashem Chafetz Lemaan Tzidko Yagdil Torah Veyadir.” From here we learn that it is permitted for a Milameid who teaches children Torah to open a school in an area that already contains a Milameid who teaches. [Michaber ibid; Rambam Talmud Torah 2:7] The Talmud [Bava Basra ibid] states that Ezra established that there be competition amongst Sofrim in order to increase in wisdom.
[4] Rama Y.D. 245:22; Teurmas Hadeshen 151
[5] Shach 245:14
[6] Hisvadyus 5747 2 p. 324-337
[7] See Poskim listed in coming footnotes and Admur ibid Halacha 12 regarding if a Milameid may take the job of another Milameid; However, regarding opening a Talmud Torah, Yeshiva or Kolel, see Chazon Ish Emuna Ubitachon 3:1 that one may open a new Talmud Torah even if it causes the other Talmud Torah to close down. However, he may not try to cajole students from one Yeshiva to come to his Yeshiva. [Darkei Mishpat p. 167]
[8] See Rama 245:22 regarding a visiting Rabbis [may not do Kiddushin] versus a resident Rabbi [may do Kiddushin]; See Shach 245:15 regarding a city where the custom is to be stringent even against a resident Rabbi doing Kiddushin; See Chasam Sofer 230 and Noda Beyehuda Tinyana E.H. 83 that in today’s times there are limitations even by a resident Rabbi; See Pischeiy teshuvah 245:11-12
[9] Shut Harambam 273; Koveitz Teshuvos [Rav Elyashiv] 1:213
[10] Igros Moshe C.M. 1:38; 2:40
[11] See Admur ibid Halacha 12 regarding if a Milameid may take the job of another Milameid; However, regarding opening a Talmud Torah, Yeshiva or Kolel, see Chazon Ish Emuna Ubitachon 3:1 that one may open a new Talmud Torah even if it causes the other Talmud Torah to close down. However, he may not try to cajole students from one Yeshiva to come to his Yeshiva. [Darkei Mishpat p. 167]
[12] Hisvadyus 5747 2 p. 324-337
[13] Igros Moshe C.M. 2:31
[14] Igros Moshe C.M. 2:40
[15] Hisvadyus 5747 2 p. 324-337
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