Question
Recently, I needed three thousand shekels in cash. To obtain the cash, I went near the cashiers in a nearby supermarket and spotted a customer with many items and asked him if he was intending to pay with cash. When he replied affirmatively I asked him if I could pay his bill with my credit card and he’ll give me his cash. He accepted my offer, and I paid and left the store with the cash that I needed. Later, I started thinking that perhaps I acted improperly since I caused the store to pay a credit card fee which they would have avoided if the customer would have paid with cash. Did I indeed act improperly?
Answer
Today there are many stores that prefer for their customers to charge themselves and pay with a credit card. In those stores there is no question since obviously the storekeeper approves of your action. Our article only concerns those stores who would prefer that their customers would pay with cash in order to save on credit card fees. In those stores we have to examine whether you acted improperly when you caused the storeowner an expense that otherwise he would have avoided.
This is, in a sense, related to our previous article. In that article we cited the decisive opinion of R. Huna son of R. Yehoshua that generally, one may open a rival store even adjacent to an existent store. However, previously the Gemoro (BB 21B) cited the opinion of R. Huna who ruled that one may not open a competing store in the entire courtyard where the first store was located.
The Gemoro attempted to prove that R. Huna was correct by citing a ruling that a fisherman must distance his trap a large distance from the bait that had previously been set down by another fisherman. However, the Gemoro rebutted the proof by saying that for a certain reason fishing is different. Since, as we saw in the previous article, we do not rule like R. Huna, the Gemoro’s rebuttal of the proof is authoritative and this is the ruling of the Chasam Sofer (res. CM 79 c.v. veyesh ka’an) and many others.
There are various opinions among the Rishonim what is the difference the Gemara is referring to. Rashi’s opinion is that when one sets out bait he can be certain that the fish in the vicinity would be caught. The second fisherman is prohibited from spreading his net in the vicinity since otherwise he will catch what otherwise would certainly have been caught by the first fisherman. This contrasts with an ordinary store where the loss is not certain.
Tosafos (BB 21B) asks that we find in other places in the Gemara that one may grab an object that otherwise someone else would have certainly gotten. For example, one may snatch away an ownerless object from someone else who was already lying upon it in order to acquire the object. Tosafos suggests two differences. One is that the prohibition is limited to commerce since there is a special prohibition to take away a person’s livelihood- yoreid le’umnos chaveiro, as we discussed in the previous article. Since the first person is fishing for a living when the second person spreads out his net he is being yoreid le’umnos chaveiro. The second difference is that in the case of fishing the second fisherman can find another place to fish whereas the person who snares away an ownerless object cannot be told to grab a different object because there is no supply of ownerless objects.
Tosafos (Kiddushin 59A) in another place asks the same question and answers the question by citing the explanation of the father of Rabbeinu Tam, which is similar to Rashi’s explanation in the sense that the prohibition is because the second fisherman’s bait will attract the fish that would have been caught by the first fisherman. However, the reason why this is prohibited is not merely because he is taking fish that otherwise would have certainly been caught by the first fisherman but because he utilized the first fisherman’s work for his own good at the expense of the first fisherman. This is because the only reason the fish were in the vicinity in the first place was because the first fisherman’s bait attracted them. Thus the second fisherman must leave because otherwise he would be guilty of utilizing another person’s work in order to compete with him. In the article from Parshas Miketz we cited the Noda Biyehuda and Divrei Malkiel who ruled that this constitutes ze nehene veze choseir i.e. B is benefitting from A in a manner that harms A. In this case not only is B’s action wrong but B must even compensate A by reimbursing him for all of his gain. The Chashukei Chemed (BB 21B) applies this to an employee who while working for A discovered the identity of A’s customers and then opened a rival business and turned to A’s customers to buy from him. He is in violation of this prohibition because he utilized the customer base that A had established in order to take away his customers.
Many Rishonim, including the Ramban, Rashba and Ran cite the Oruch who explains the Gemara somewhat differently. The Oruch explains that the reason why a second fisherman may not spread out his net in the vicinity of the first fisherman’s net is that he may attract fish that already had entered the first fisherman’s net, which constitutes theft. The Chassam Sofer (res CM 118) explains that since the second person only caused the fish to leave but didn’t actually take the fish from the first one’s net, he is only similar to a thief but not an actual thief. We should note that the fact that these Rishonim understand the Gemoro in a different manner does not necessarily mean that they disagree with the laws that result from the explanations of Rashi and the father of R. Tam and we will see in the ensuing that many later poskim based their rulings on the explanations of Rashi and R. Tam’s father.
One ruling is given by Tosafos themselves. After recording the explanation of R. Tam’s father, Tosafos continues that we can derive from it that a private tutor may not offer his services to a person who already employs a live-in private tutor to teach his children. The Maharit (Commentary to the Rif) explains that the rationale for the deduction is that if a second tutor replaces a previous tutor he benefits from the efforts of the first tutor since it is due to the hard work of the first tutor that the second tutor finds it easier to teach the children. It is in this sense that the first tutor is like the one who placed the big fish since in each case the second person is benefitting from the first person’s efforts and thereby he is preventing the first person from enjoying the fruits of his labor. This ruling of Tosafos concerning the second tutor is ruled by the Shulchan Aruch (237, 2) without any dissenting opinion, rendering it authoritative. According to the Maharit’s explanation this in turn implies that the opinion of R. Tam’s father is authoritative. Other poskim who relied on the explanation of the father of Rabbeinu Tam are the Maharshdam (CM 259) and the Maharsham (2, 202).
There is another instance where the Gemara rules that a person may not benefit from another person’s efforts and thereby prevent the one who expended the efforts from enjoying the fruits of his labor. The Mishna (Gitin 59B) records various actions which the Rabbonon forbade considering them a type of theft. One of those actions is where one individual banged on an olive tree in order to gather the fallen olives from the ground. The Mishna rules that if another person precedes him and gathers the fallen olives he is a rabbinic thief since he benefitted from the first person’s efforts in a manner that prevented the first person from benefitting from the olives that he had made available by knocking them off the tree. Tosafos (Gittin 60B) says that this prohibition applies even when the first person does not suffer a loss of livelihood.
Thus we have established that there are two prohibitions. One is to take away certain profit from someone else where it curtails the victim’s livelihood. The second is where a person utilizes another person’s efforts for his own gain in a manner that prevents the first person from reaping the fruits of his efforts. This second prohibition applies even when the first person does not suffer a loss of livelihood. Additionally, the second person will have to pay the first one for the value of the benefit he derived.
In your situation, you acted on a one time basis and you could not be called a yoreid le’umnos chaveiro. Therefore, the first explanation of Tosafos would not apply. However, you used the fact that the supermarket brought the customer to the store in a manner that was detrimental to the store. While it is true that you did not take away the customer since he did buy from the store but nevertheless the store incurred an expense that it would have otherwise avoided and therefore, your action was forbidden. You wouldn’t owe anything to the store if you didn’t earn any money thereby and just needed cash.
An interesting similar question used to be very relevant in Israel. Taxi drivers would drive up to the bus stop and offer rides to those waiting at the bus stop. The Pischei Choshen (Geneivo 9, footnote 7) is uncertain whether the practice was forbidden because a bus stop is not the same as a store. The bus companies didn’t set up the bus stops. Rather the city did so in order that people should know where they can catch a bus and that traffic should flow smoothly etc. Therefore, he is inclined to rule that the taxi drivers were permitted to continue their practice since they did not benefit from the efforts of the bus company but rather from the city’s actions.
