Undercutting the Price

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By: Reb Avi Lebowitz

There is a dispute in the Mishna whether a seller is allowed to undercut and sell below market price so that people will buy in his store. The Gemora seems to ask why the Chachamim permit this type of price setting. The Gemora answers that ultimately it will have a positive result on the market because it will force the market price to be lower. The implication of the Gemora is that one can only undercut the market in this way when it will in fact be beneficial to consumers by lowering the market price. However, in a situation where it will not result in actually lowering the market price (perhaps because the market is too large to be lowered by one merchant, such as the case nowadays with internet sales), the seller would be forbidden to undercut the market to encourage consumers to buy in his shop.

However, R’ Shlomo Kluger (Chochmas Shlomo C.M. 228) makes a beautiful diyuk from Rashi that perhaps that is not the halachah.. When the Gemora asks – what is the Chachamim’s reason? Rashi comments: Why is the seller favorably remembered? Meaning, the Gemora isn’t asking why the Chachamim permit to sell for cheap, rather the Gemora is asking why is it considered so positive and even a blessing. To that the Gemora answers that the seller is remembered for good because he helps consumers by lowering the market price. This rationale is only necessary to explain why it is a good thing for the seller to do, but even without this rationale, the Chachamim hold that it is permitted. Based on this, R’ Shlomo Kluger justifies why the Shulchan Aruch fails to limit this permission in any way, and rules that one can always undercut the market price even in a situation where they are selling to a different city and their sales won’t have a positive effect on the market.

It would seem that it is permitted for one to undercut his competitors to provide incentive to the consumers to shop by him, put them out of business, and then raise the price (within the confines of ona’ah). But perhaps we can be medayek from Rashi on the Mishna that this type of devious behavior is not permitted. Rashi, when explaining the Tanna Kamma who holds that it is forbidden to do this, comments: מפני שמרגיל לבא אצלו ומקפח מזונות חבירו. Rashi indicates that the case we are discussing is when he is harming the other merchants only by luring their customers to his store. This is similar to distributing candies where you would not be putting the other merchants out of business, just “stealing” their customers. Since the other merchants can also distribute candy and/or lower their price to compete - it is fair capitalistic business practice, so the Chachamim permit it. However, in a situation where one merchant is wealthier than the rest and can afford to literally sell at a loss for six months to force his competitors out of business, it is very possible that even the Chachamim would agree to the Tanna Kamma that it is forbidden, since the other merchants don’t have the ability to compete.

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Law of the Kingdom

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Shmuel states: The law of the government is the law (even according to our law).

The Gemora in Shabbos (88a) teaches that when Bnei Yisroel stood at Mount Sinai and heard the word of Hashem, He held the mountain over our heads. Hashem declared, “If you’ll accept the Torah, all will be well. If not, this will be your burial place!” Rav Acha bar Yaakov said: This can now be used as an excuse for Klal Yisroel when they do not perform the mitzvos. For when they are summoned for judgment, they can claim that they were coerced into accepting the Torah; it was not done willingly.

The Perashas Derachim asks from our Gemora which states that the law of the kingdom is the law. If so, this should certainly apply by The Holy One blessed is He, Who is the King of all Kings. How could Klal Yisroel use the coercion as an excuse? The law of the kingdom is the law, and they took an oath obligating themselves to perform His mitzvos!

He answers that Rabbeinu Tam holds that the principle of the law of the kingdom is the law is only applicable if the king decrees on all his subjects. However, if the decree is issued only on part of his kingdom, this principle does not apply. Since Hashem is the King over all the nations of the world and He only forced Bnei Yisroel to accept His mitzvos, this principle would not apply and hence, a claim of coercion can be effective.

It emerges that regarding the seven mitzvos that were given to all Bnei Noach, the principle of the law of the kingdom is the law would apply, and a claim of coercion would not be valid.

According to this, the Ketzos HaChoshen explains the argument between Pharaoh and the midwives. Pharaoh asked them, “Why didn’t you listen to my commandment? The law of the kingdom is the law and since I the king decreed that all the Jewish children should be killed, you are obligated to listen to me!” They responded to him, “Your decree is not a universal one; it was only issued regarding the Jewish children and not to any others. Accordingly, the principle does not apply and we are not obligated to adhere to the laws of the kingdom. Thereupon, Pharaoh immediately decreed that all children born must be thrown into the sea.

Reb Shlomo Kluger uses this principle to explain Adam HaRishon’s response to Hashem. He answered, “The woman that you gave to me gave me from the tree and I ate.” What kind of answer was this? Adam HaRishon was saying that since his was wife was here as well and she was not commanded not to eat from the tree. Therefore, the law of the kingdom does not apply and that is why he ate.

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Moshe's Instruction

It is written [Shmos 7:1]: Hashem said to Moshe, “See! I have made you a lord over Pharaoh, and Aaron, your brother, will be your speaker.” What is the connection between the two parts of the verse?

Reb Shlomo Kluger explains the verse based upon our Gemora (Daf Yomi: Gittin 29a) . Rava had said that our Mishna was referring to words (that were said by the husband, i.e. instructions to write the get), and those cannot be passed on to another messenger (for words are too insignificant to be transferred). However, something tangible (like a get) can be passed on to another messenger.

This principal, he explains, is that mere words cannot be transferable to a second agent. However, the first agent can be appointed for mere words.

Moshe’s mission was one of words. Hashem commanded him to go to Pharaoh and speak to him. Accordingly, one can ask: How did Moshe have the authority to transfer this to Aaron? Mere words are non-transferable to another agent!?

This is the explanation for the introductory verse. Hashem made Moshe into a lord over Pharaoh. Moshe, therefore, was not merely an agent; he was the principal himself. He, therefore, had the authority to appoint Aaron to be his agent to talk to Pharaoh.

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Decree when the reason no longer applies

Tosfos (Daf Yomi: Gittin 18a) asks: One of the reasons mentioned for the decree that the date should be recorded on a get is because perhaps the husband will want to save his niece from capital punishment if she committed adultery. Nowadays, Tosfos asks, when we do not execute anyone, why is there still a necessity to write the date in the get?

The Avnei Neizer (E”H: 188) cites a challenge to Tosfos’ question: Although the reason may not be applicable, the sages’ decree should still apply unless a greater Beis Din comes and nullifies it!

He answers that Tosfos understood that the initial decree was only established in a time and a place where they administered capital punishment. Accordingly, if nowadays, it is universal that we do not execute anyone, we are not nullifying the decree; rather, the enactment was never instituted for such cases. This is why it is not necessary for another Beis Din to annul the initial decree.

This would be comparable to that which Tosfos in Beitzah (6a) states: Tosfos writes that a matter that was only prohibited because of a specific concern will be permitted when the concern no longer exists. This principle justifies why we do not have to be concerned for water that was exposed at night and one is allowed to drink from it because in modern times snakes are not frequent in our homes.

The Gemora (Beitzah 30a) cites a Mishna that states that one is not allowed to clap or dance on Shabbos or Yom Tov. Rashi explains that the reason that one is prohibited from performing any of these actions is because they can lead to one fixing musical instruments. Tosfos states that this prohibition only applied in those days when they were experts in fashioning musical instruments. Presently, however, the decree does not apply, because we do not know how to fashion these instruments.

The Rema (O.C. 339:3) rules in accordance with Tosfos. Teshuvos HaRema (125) writes that there was an incident where a marriage occurred on Friday night and the people were not concerned that the groom would write the kesuvah, marriage contract on Shabbos. The reason for this permit was because it is not common in our times for the groom to write his own kesuvah.

Rav Shlomo Zalman Auerbach zt”l poses an interesting question. The halacha is that presently we do not have a legally qualified reshus harabim and for this reason one would be permitted to walk in a public thoroughfare on Shabbos while wearing various ornaments. According to this ruling, then, why are we still forbidden to blow shofar, shake a lulav and read the Megillah. Regarding these mitzvos there is a concern that one may come to carry the shofar, lulav or Megillah in the reshus harabim. Yet, the halachah is that our public thoroughfares are not deemed to be a legal reshus harabim, so we should no longer have these concerns.

Reb Shlomo Zalman also questions the opinion of the Raavad who maintains that muktzah is forbidden on account of a rabbinical decree that one should not come to carry into a reshus harabim. Why should this decree still apply when there is no longer a legally qualified reshus harabim?

Rav Shlomo Zalman explains that Tosfos is only referring to musical instruments. In previous times, everyone was capable of playing and repairing musical instruments. For this reason there was a decree prohibiting clapping and dancing. In our times, however, only a minority of people is capable of fixing musical instruments and because it is uncommon for people to fix musical instruments, there is no necessity for the decree against clapping and dancing.

Rabbah (Beitzah 5a) maintained that Rabban Yochanan Ben Zakkai rescinded the prohibition against accepting witnesses after the offering of the afternoon tamid sacrifice, and subsequently an egg that was laid on the first day of Rosh HaShanah was permitted to be eaten on the second day. Rav Yosef challenged Rabbah’s ruling because if the Chachamim assembled to render a ruling, they would need to reassemble to revoke their ruling. Rav Yosef added that one could not say that Rabban Yochanan Ben Zakkai convened with his colleagues to permit one to eat the egg, because their decision was only to accept the testimony after the offering of the afternoon tamid sacrifice, but they never took a vote on permitting the egg to be eaten.

Tosfos HaRosh in Avodah Zara (2a) rules that one is permitted to conduct business with gentiles during their holiday season as initially this was prohibited because gentiles in the past worshipped idols and now that gentiles do not worship idols, the decree is irrelevant.

Tosfos in Brachos (53b) writes that people are not scrupulous regarding mayim acharonim, washing the hands at the end of a meal, because we no longer have melach sedomis, salt from Sodom. Tosfos notes that although the practice of washing mayim achronmim was instituted by an assembly of a Bais Din, this institution was not unanimously accepted and thus this institution is not categorized as a ruling that is irrevocable unless a Bais Din reassembles and rescinds the ruling.

Reb Shlomo Kluger in Elef Lecho Shlomo (116) rules that one is permitted to learn by candlelight on Shabbos and we are not concerned that he may come to move the wick which will cause the fire to burn brighter, thus violating a biblical prohibition, because one does not need to move the wick of our present-day candles.

Teshuvos HaRosh (klal 2:8) rules that one is permitted to tie strings of linen on a four-cornered garment that is made from linen to fulfill the mitzvah of tzitzis and we are not concerned that one might tie strings of wool to the garment. The reason for this ruling is because all know that techeiles, a blue-dyed wool used for tzitzis, is not prevalent, thus there is no permit to tie strings of wool to a linen garment.

Teshuvos HaRosh writes that if is common knowledge why a decree was instituted and the rationale no longer applies, then the decree is considered irrelevant. Teshuvos HaRosh draws a contrast of this supposition to the case in our Gemora regarding the egg that was laid on the first day of Rosh HaShanah, because some people are not aware whey the egg was initially prohibited, nor do they understand why the reason to prohibit no longer applies.

Shearim Mitzuyanim B’Halachah rules that if necessary, one is permitted to take medicine on Shabbos. Taking medicine on Shabbos was initially forbidden as there was a concern that one would violate the prohibition of grinding. Now that medicine is prepared by the manufacturer and most people are not even aware of the process involved in manufacturing the medicine, there is no longer a concern that one who wishes to take medicine will violate the Shabbos prohibition of grinding herbs or spices.

[END]

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The Law of the Government

The Gemora (Daf Yomi: Gittin Daf 10b) notes: The Mishna did not make any distinction between a document of sale and one of a gift. It is understandable that a document of sale can be valid even if idolaters are signed on it, for when the buyer gave the money before the judges is actually the time that he acquired the land; the document is only a proof to the sale. If the buyer had not given money in front of the judges, they would not have discredited their reputation by writing the document for him. But with respect of a gift, with what did he acquire the property? It is only through this document! But this document is equivalent to a shard! [Why does the Mishna rule that even in this case, the document is valid?]

Shmuel answers: The law of the government is the law (even according to our law).

The Gemora in Shabbos (88a) teaches that when Bnei Yisroel stood at Mount Sinai and heard the word of Hashem, He held the mountain over our heads. Hashem declared, “If you’ll accept the Torah, all will be well. If not, this will be your burial place!” Rav Acha bar Yaakov said: This can now be used as an excuse for Klal Yisroel when they do not perform the mitzvos. For when they are summoned for judgment, they can claim that they were coerced into accepting the Torah; it was not done willingly.

The Perashas Derachim asks from our Gemora which states that the law of the kingdom is the law. If so, this should certainly apply by The Holy One blessed is He, Who is the King of all Kings. How could Klal Yisroel use the coercion as an excuse? The law of the kingdom is the law, and they took an oath obligating themselves to perform His mitzvos!

He answers that Rabbeinu Tam holds that the principle of the law of the kingdom is the law is only applicable if the king decrees on all his subjects. However, if the decree is issued only on part of his kingdom, this principle does not apply. Since Hashem is the King over all the nations of the world and He only forced Bnei Yisroel to accept His mitzvos, this principle would not apply and hence, a claim of coercion can be effective.

It emerges that regarding the seven mitzvos that were given to all Bnei Noach, the principle of the law of the kingdom is the law would apply, and a claim of coercion would not be valid.

According to this, the Ketzos HaChoshen explains the argument between Pharaoh and the midwives. Pharaoh asked them, “Why didn’t you listen to my commandment? The law of the kingdom is the law and since I the king decreed that all the Jewish children should be killed, you are obligated to listen to me!” They responded to him, “Your decree is not a universal one; it was only issued regarding the Jewish children and not to any others. Accordingly, the principle does not apply and we are not obligated to adhere to the laws of the kingdom. Thereupon, Pharaoh immediately decreed that all children born must be thrown into the sea.

Reb Shlomo Kluger uses this principle to explain Adam HaRishon’s response to Hashem. He answered, “The woman which you gave to me gave me from the tree and I ate.” What kind of answer was this? Adam HaRishon was saying that since his was wife was here as well and she was not commanded not to eat from the tree. Therefore, the law of the kingdom does not apply and that is why he ate.

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Yitzchak's Blessing

Rav Chanin said in the name of Rav (Nedarim 7b) : One who hears his fellow utter Hashem’s name in vain is obligated to excommunicate him; otherwise, he himself is fit to be excommunicated. The Gemora explains the rationale behind this: For wherever the unnecessary utterance of the Divine Name is prevalent, poverty will be prevalent, and poverty is regarded as death. (Thus we see the severity of Hashem’s Name being mentioned in vain.)

Using this Gemora, Reb Shlomo Kluger explains the following verse [Breishis 27:23]: And he did not recognize him because his hands were hairy like the hands of his brother Esav, and he blessed him.

What caused Yitzchak to bless him? What is the connection between the observation that his hands were hairy like Esav and the blessing?

He explains: Wherever the unnecessary utterance of the Divine Name is prevalent, poverty will be prevalent. Up until this moment, Esav did not regularly utter the Name of Hashem. Therefore, Yitzchak had no need to be concerned about Esav becoming poor. However, now that he heard “his hairy son” using the Name of Hashem, he decided that it was time to bless him.

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