Question
Our firm sells lighting systems. Recently, one of our employees left the firm and opened his own company to sell the identical product. Since until now he worked for our firm, he knows our customers and is trying to take them away from our company. The customers he is trying to take from us can be divided into three categories. There are customers with whom we are near to closing a sale and if he doesn’t interfere, we will close a deal. There are customers with whom we are talking but we aren’t yet near a sale. Finally, there are customers whom we identified as potential customers but haven’t begun talking to them. Can we prevent him from turning to these customers?
Answer
In the previous article we discussed the customers with whom you were close to finalizing a deal and we saw that if your former employee succeeds in taking them away, he will have to pay you for your loss. In this article we will consider customers with whom you were not close to finalizing a deal.
The reason there is an issue even with customers with whom you were not close to finalizing a deal, is that the only reason your former employee knows these potential customers is because your company invested time and effort to identify potential customers. He wishes to utilize your efforts for his own interest, at your company’s expense. If he had not worked for your company, he would have had to do this work himself. Since he worked for your company, he knows these potential customers and can try to sell to them. The issue we will study in this article is whether a person may use someone else’s efforts for himself at the expense of the one who invested these efforts.
There are two sections of Gemoro which shed light on this issue.
One section of Gemoro (Bava Basra 21B) is the one we studied in the previous article. The Gemoro ruled that it is forbidden for a person to spread a fishing net in the water within a parso (four kilometers) of someone else’s net. We saw that Tosafos finds this ruling difficult in light of Rabbeinu Tam’s ruling concerning oni hamehapeich becharoro. Rabbeinu Tam rules that generally one may take an ownerless object even if someone else is close to taking it for himself. In the case of the Gemoro, since the fish are ownerless, according to Rabbeinu Tam one does not violate the prohibition of oni hamehapeich becharoro by taking them. In the previous article we saw that the answer of Tosafos to the fishing nets is that there is a difference when the first person is losing part of his livelihood.
This article is based on another answer to this question. Tosafos (Kiddushin 59A) cites the explanation of R. Meir the father of R. Tam that in the case of the net, the first fisherman did not just spread out his net but also placed a dead fish as bait in his net. (This is also the explanation of Rabbeinu Chananeil.) If a second person spreads out his net in close proximity to the first net, he will utilize the bait of the first fisherman to catch fish for himself. Tosafos states that this is tantamount to stealing these fish from the one who put out the bait.
Others do not disagree in principle with the explanation of R. Meir. Thus, we have a source that it is forbidden for a person to use another person’s efforts for himself at the expense of the first person and one who violates this ruling is a rabbinic thief.
The Maharit (Commentary to Rif, Kiddushin) adds that this explains the continuity of Tosafos. Immediately following the explanation of R. Meir, Tosafos cites a ruling of the Ri that it is forbidden for a private teacher to try to sell his services to a parent who is already employing a different private teacher. The obvious question is: What is the connection between this ruling and the explanation of R. Meir?
The Maharit says that Tosafos’ second ruling is a direct result of R. Meir’s explanation. When a second person comes to teach a student who had been taught by another, the second teacher is utilizing the first teacher’s efforts at the expense of the first teacher. Initially a teacher must expend extra effort to turn a child into a student. Even though people pay a teacher the same amount for the first months as for the later months, the work is really not the same. The teacher works hard in the beginning but has an easier time in the later months. Therefore, if a second teacher replaces the first teacher, he will benefit from the efforts of the first teacher in the early lessons at the expense of the first teacher. Therefore, when the Ri ruled that it is forbidden for a second teacher to try to sell his services, he was applying the explanation of R. Meir to deduce another practical ruling.
The Maharshdam (CM 259) also based a ruling on this approach. He was asked by a clothing manufacturer who was threatened with competition from another manufacturer. He ruled that even though in general we permit competition in this case it is forbidden. His reason was because in this case the first manufacturer initially expended great efforts to convince the local authorities to permit the establishment of a plant to manufacture clothing and if not for those efforts there would not be any clothing manufacture in this locale. Therefore, if the second manufacturer opens a plant in this area, he will be reaping the fruits of the first manufacturer’s efforts to the detriment of the first manufacturer.
The Maharsham (2, 202) also based a ruling on this principle. In his case, one manufacturer developed a method to utilize by-products of clothing manufacture which had hitherto been discarded. He ruled that another manufacturer may not establish a rival plant since he will be using a method that was developed by the first manufacturer, to compete with the first manufacturer.
There is another ruling of the Gemoro which supports this principle. The Mishna (Gittin 59B) rules that if one person banged on an olive tree causing the olives to fall to the ground it is forbidden for another person to take the fallen olives since this a form of rabbinic theft. Even though the person who banged on the olive tree did not perform a kinyan on the olives and therefore, by the rules of the Torah he is not the legal owner of the olives that he knocked off the tree, the Rabbis forbade another person to take these olives. This ruling seems to support the ruling of R. Meir since the essence of the prohibition is that a second person may not benefit from the first person’s efforts. This is indeed the approach of the Proshas Mordechai (CM 7).
What is difficult with this approach is the explanation of the Maharshal (res 36) in the case of the olives. He cites the Rosh (Kiddushin 3, 2) who says that the reason the second person may not pick up the olives that were knocked down by someone else is because the first person expended an effort to knock the olives off the tree. However, he asks, in the case of oni hamehapeich the first person also made efforts to obtain the object and yet Rabbeinu Tam rules that it is permissible for a second person to take the object.
The Maharshal answers that only physical actions like knocking off the olives are taken into account. Negotiations are not viewed as a relevant effort because the first person did not perform a physical action on the object he was trying to obtain. If one follows the approach of the Maharshal, in your situation you also did not perform a physical action. However, the approach of the Maharshal seems difficult because in any case one can derive from the explanation of R. Meir that it is prohibited for one to utilize another person’s efforts for himself at the expense of the one who expended the efforts even if the efforts are not physical actions on the object in question. We note that the Chasam Sofer (res CM 118) points out that if we understand that the basis for the prohibition to take the olives is because the second person is enjoying the fruits of the first person’s labor, the Maharshal’s difficulty would not exist.
Now that we established that according to many authorities one may not derive benefit from another person’s efforts at the expense of the one who expended the efforts, we have to investigate whether there are any monetary consequences. In the case of the fish, beis din will do whatever it can to prevent the second person from violating this law. If the rationale for prohibiting someone from gathering the olives that were knocked down by someone else is like the Proshas Mordechai understood, then we have a precise ruling of the Gemoro since the Mishna (Gittin 59B) rules that taking the olives constitutes rabbinic theft which is prohibited, but there are no monetary consequences.
Thus, for those customers that you were not close to closing a deal, it is forbidden for someone like your former employee to try to sell to them since he is using your efforts to act in a manner that is detrimental to your business. Beis din will do what it can to prevent him from selling to these customers. If he, nonetheless, succeeds in selling to such a customer he will be stealing from you in a way that is prohibited rabbinically, but he will not owe you any money.
