By Rabbi Yair Hoffman for the Five Towns Jewish Times

This is one of those halachic wars that it made in into the pages of the New York Times herself, and written by a journalist with a decidedly Irish last name – Corey Killgannon.

It involves two very avant-garde pizza shops. There is Basil Pizza and Wine Bar, owned by Daniel Branover – which is highly successful. It has been opened since 2010 and features high end specialty pizzas – the kind with thin-crusts and uniquely blended specialty sauces.

And then there is the new store on the block, Calabria which opened up a month ago – and is in direct competition with Basil. They too offer think crusts and specialty sauces. Both shops are in Crown Heights and, in fact, Calabria opened across the street from Basil. The second shop looks quite different from the sleek and modern first shop. There is Hebrew writing on the ceiling. The menu is also chalked on a blackboard.

Even though they looked different, the pizza was pretty similar in appearance.

Basil’s took Calabria to the Beis Yoseph Beis Din in Boro Park. The Beis Din ruled that Calabria has to go to regular New York style pizza. They did, sort of. It seems they still may be selling some of the similar pizza as well. The Dayanim of the Beis Yoseph Beis Din actually took an Uber to Crown Heights to see things for themselves. They looked at the menu, the prices and the geographic location.

THE ISSUE – HASAGAS GVUL

The issue under discussion is called in Halacha – Hasagas Gvul. The Gemorah in Bava Basra (21b) writes that one cannot set up a fishing net that is too close to the net of another fisherman – and catch all of his fish. The fish were heading toward the original net.

THE GRINDING MILL CASE

The Gemorah further discusses another case. In the other case someone is operating a grinding mill in an alley. Someone else opens up shop as well. Is this also a problem of hasagas gvul?

THE TWO OPINIONS

The first opinion, (that of Rav Huna), says it is and that the first mill owner can prevent the second from opening up. The second view, Rav Huna Bar Rav Yehoshua, says that it is permitted. The second view states that the second mill owner can say, “Whoever will come to me will come to me and whoever will come to you will come to you.” The Gemorah indicates that the second view is the normative view – provided that the new competitor does not look to directly damage the first.

RULING OF THE SHULCHAN ARUCH

The Shulchan Aruch (CM 156:5) follows this second view. The second view is qualified, however. It is only permitted to one who lives in the same area. The Tur indicates, however, that if the outsider pays the local taxes he may open in that area. Rav Yoseph Karo, in his Shulchan Aruch accepts this view. However, the Ramah cites a different caveat – that he may only open in a different alley way in that city (See Tosfos Bava Basra 21b “v’ee.”)

THE AVIASAF’S VIEW

There is also a view cited by the Mordechai (Bava Basra Siman 516). This view is that of the Aviasaf who forbids opening up a store in an entrance to a cul de sac alley if there is a further store higher toward the cul de sac. In his commentary on the Tur, Rav Karo claims that this view follows the rejected first opinion.

The Ramah in his Darchei Moshe (CM 156:4) explains the Aviasaf (also cited in the Hagaos Mordechai) in accordance with the second view.
There is also a fascinating responsum of the Rashba (3:83). He writes that while the second store may open – he cannot actively go after and pursue customers of the first business.
In our case of the two avant garde Pizza shops, Basil accused the second shop of doing just that – even to the point of getting business info from their employees.

WHEN THE FIRST STORE WILL ONLY GET HURT

The Pischei Teshuvah (156:3) distinguishes between when the second store will only hurt the first store and when it will put the first store out of business. He forbids the second type based upon the Chasam Sofer. The Chasam Sofer writes that even when the first store can support himself in some other way – it is still forbidden. This is also the view of the Masais Binyomin in a responsum (#27).

Rav Moshe Feinstein zt”l (IM CM 1:38) cites the Chasam Sofer and rules like him.

IS NEW YORK CITY AND ITS ENVIRONS ONE BIG MARKET PLACE?

Rav Yisroel Belsky zt”l once told this author of a ruling of Rav Moshe zt”l that in New York City and its environs, in many industries, it is considered like a shuk – a marketplace and restrictions on competition are not applied. There are many Poskim who subscribe to this opinion as well. One must see a competent Posaik to determine the exact parameters of this view.

WHEN THE PUBLIC WILL SUFFER MAJOR ECONOMIC DAMAGE

There is another fascinating Ramah (CM 156:7) that states that if the first merchant’s prices were significantly higher – then it may be forbidden to disallow the competitor. The nemukei Yoseph points out that the price differential must be significant. Otherwise what would happen is that each person would simply lower their price just a bit in order to permit it.
By the same token, if there is a large qualitative difference between the two products, Poskim do not necessarily disallow the competitor.

It goes without saying that the new competitor should never actively go after the first business’s customers.

HORSE DRIVEN WAGONS VERSUS AUTOMOBILES

Rav Asher Weiss Shlita (Responsa Minchas Asher Vol. I #105) presents a fascinating point, and that is when the matter is of significant consequence to the public at large, halacha would never negate the public advantage for the economic benefit of the few business owners. Thus, he explains, Halacha would never forbid the development of motor vehicles in order to save the parnassah of the wagon manufacturers.

The author may be reached at [email protected]