Thursday, June 25, 2009

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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Wednesday, June 24, 2009

Heavenly Voice

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The Gemora states that a Heavenly voice declared that the halachah follows the opinion of Rabbi Eliezer.

The Gemora cites the opinion of Rabbi Yehoshua: He maintains that we do not pay attention to a Heavenly voice dictating who the halachah should follow.

The Gemora in Yevamos (122a) states: A woman can get married on account of a heavenly voice. This means that if her husband went overseas and a Heavenly voice declares that her husband died, she is permitted to get married.

The Tosfos Yom Tov states that this is not referring to a Heavenly voice since we rule that one does not pay halachic attention to a voice emanating from heaven.

Reb Elchonon explains differently: We do not pay attention to a Heavenly voice regarding halachic matters because Torah is not in the heavens; it was given to human beings. The Sages of Klal Yisroel have the authority to resolve all halachic matters, not the heavens. However, a Heavenly voice can resolve a factual doubt. We would not rely on a Heavenly voice in regards to something that requires two witnesses. The Chachamim were lenient in regards to the testimony of a woman and they relied on the words of even one witness; that is why a Heavenly voice can be believed in this matter.

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the Righteous and the Scoffers

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By: Reb Binyomin Adler

Rava expounded: What is the meaning of that which is written: But when I limped they rejoiced and gathered … they tore [at me] and would not be silenced? Dovid said before The Holy One, Blessed be He: Master of the Universe! It is revealed and known to You that if my enemies were to tear my flesh, my blood would not flow out (for it has drained from the surface of my body because of their taunts about my sin). And not only that, but when they were engrossed in the studying the tractates of Negaim and Oholos (difficult tractates in the order of Taharos), they interrupt their studies and say to me (tauntingly): Dovid! If one cohabits with another man’s wife, what is his prescribed form of execution? I said to them: If one cohabits with another man’s wife, his execution is by strangulation, but he has a share in the World to Come. However, one who makes his fellow’s face turn white from shame in public (as you are doing to me), has no share in the World to Come.

This dialogue appears somewhat strange. Were Dovid’s tormentors really serious in their accusations against him regarding his taking Bathsheva? If they were, should they have not summoned him to trial? Although the Gemora states that a king cannot be judged, certainly the Sages of the time would have at least incriminated Dovid. How can we understand their accusations?

There is a constant struggle in the world between the righteous and the wicked. Thus struggle has manifested itself throughout history, as evidenced in the incident where Avraham and Sara miraculously conceived a child, yet there were still those who scoffed and said that Avimelech impregnated Sara. Hashem always allows room for the wicked to interpret events in their own way. When Dovid committed the act with Bathsheva, Hashem allowed for the wicked to lose their share in the World to Come by scoffing at Dovid. They were not seeking justice at all. Rather, they were looking for someone to mock, and scoffers will mock anyone, even the great Dovid, King of Israel.

The Maharsha notes that one who speaks evil slander incurs tzaraas, and even still their study of those laws did not prevent them from slandering Dovid. One has to guard his speech, but equally important, one must inspect his actions to ensure that he is not from the scoffers, but from those who defend and respect the righteous.

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Monday, June 22, 2009

Verbally Paining a Rasha

By: Reb Avi Lebowitz

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The Mishna tells us that just as there is a prohibition of ona’ah to cheat someone through money, there is also a prohibition to cause them pain verbally.

The Mordechai (306) says that based on the Gemora that considers ona’as devarim to be “not returnable,” it would follow that one receives malkus (lashes) for violating ona’as devarim.

The obvious difficulty with this is that ona’as devarim is a la'av she'ein bo ma'aseh (a prohibition without an action) which one does not receive malkus for violating.

The Sefer Hachinuch explicitly argues with this Mordechai and says that since it is a la'av she'ein bo ma'aseh, there isn't any punishment of malkus.

The Nimukei Yosef explains based on the Gemora (59a) that only עם שאתך בתורה ובמצוות are included in ona’as devarim, that the prohibition of ona’as devarim doesn't apply when one speaks harshly about one who does not fear Heaven (ya’arei shamayim).

Although the Gemora excludes an evil person from this prohibition (meaning that it is permitted to offend him), it seems a little strange why the Nimukei Yosef raises the bar so high, and insists that there isn't a violation to speak against someone who is not a ya’arei shamayim.

We find that the Gemora expounds in Bava Metzia 48b and 62a - ונשיא בעמך לא תאור, בעושה מעשה עמך, to the exclusion of an evil person.

We also find in the Hagahos Maimon (deios 6:1) on the mitzvah of לא תשנא את אחיך בלבבך וכו' ואהבת לרעך כמוך that we expound - דוקא שהוא רעך בתורה ובמצות אבל אדם רשע שאינו מקבל תוכחה מצוה לשנאותו. It is permitted to hate a wicked person. The source that one can hate such a person is in Pesachim 113b - that one can hate someone who commits transgressions.

We also find in the Rambam (Rotzeiach end of perek 4) who expounds - לא תעמוד על דם רעך, ואין זה ריעך and learns from here that shepherds who are considered thieves are not included in this mitzvah to save them.

All these sources that use the terms “amcha,” “rei'acha” or “achicha” seem to exclude only real wicked people. But the Nimukei Yosef seems to understand that the term “amisecha” in the context of ona’ah excludes anyone who is not a ya’arei shamayim. The term implies a higher standard than the other terms.

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