The Case
The Torah Academy of Bergen County’s varsity hockey team won the New York metropolitan floor hockey league championship in 2007 and 2008. The glove used by the goalie in this game is a coveted item that remains within the hockey team as a memento that is passed from one graduating class to the next. In March 2009 as the hockey season was drawing to a close, at one of the practices one student (“glove caller”) “called” (reserved) the right to purchase the goalie glove from the graduating goalie (“goalie”) at the end of the season. Towards the end of the summer of 2009 when “goalie” was at summer camp in Pennsylvania, he offered to sell the goalie glove to another member of the Torah Academy hockey team. This student reminded “goalie” that “glove caller” had already “called” the right to purchase the hockey glove. “Goalie” replied not to be concerned with the “call” and subsequently sold the glove to this student who was with him in camp (“glove purchaser”).
In September of 2009 when “glove caller” discovered that the “goalie” sold the coveted glove to “glove purchaser” he objected to his “call’s” not being respected. The two students came to me to resolve the dispute. “Glove caller” claimed the right to purchase the glove from “glove purchaser” while “glove purchaser” questioned that right.
We must resolve three issues in this case: Did “glove caller” become the owner of the glove when he “called” the glove? Did “goalie” act unethically by not honoring the “call”? Did “glove purchaser” act unethically by purchasing the glove when someone else had already called the glove.
Transfer of Ownership of the Glove - Kinyan
The Mishnah (Bava Metzia 4:2) sets forth the rules for when ownership is formally transferred when a movable item is sold:
If one has pulled the good towards him (meshichah) but did not yet pay the money, [ownership of the good has been transferred – a kinyan has been made and] neither side may renege on the deal. If he gave the money but did not yet perform meshichah on the item [ownership of the good has not been transferred and] either side may go back on the agreement. However, [the sages] said that the One who punished (Mi She’para) the Dor Hamabul (generation of the flood) and the generation of the dispersion (after building the tower of Babel) will punish one who does not abide by his commitments.
This Mishnah teaches that a kinyan is made on movable items when one pulls the item towards him and that if one reneges on a deal after the money has been paid he is considered to have acted unethically and receives a “mi shepara”. In our case, “glove caller” had neither taken possession of the glove nor had given money to “goalie” and thus he is not considered to be the owner of the glove by virtue of the call and “goalie” does not incur a “mi shepara”.
Kinyan Situmta – Common Commercial Practice
Although no kinyan was made by traditional halachic standards we must still explore whether a kinyan was made by virtue of the customary commercial practices of the community. The Gemara (Bava Metzia 74a) discusses a common practice of wine sellers to place a seal (situmta) on the barrels of wine that had been promised to a specific buyer. The Gemara records a debate regarding one who placed a seal on a barrel but then wanted to sell it to another buyer. One opinion is that placing the seal actually affects a transfer of ownership and is the equivalent of meshichah and the second opinion disagrees and argues that selling to another after placing a seal on the barrel rises only to the level of incurring a “mi shepara”. The Gemara concludes that placing a seal does not affect a kinyan (but rises to the level of incurring a “mi shepara”) but in a place where the commonly accepted practice is to regard the placing of the situmta as the equivalent of meshichah, simply placing the seal transfers the title.
The conclusion of the Gemara is codified by the Shulchan Aruch (C.M. 201:1). The Shulchan Aruch proceeds (ibid. no. 2) to articulate a principle of major importance:
And so too any act which merchants commonly accept as an act which signifies formal transfer of title such as giving of a coin of minimal value or a handshake or handing the keys to the purchaser and anything similar to this is recognized by the Halachah as a legitimate kinyan even though these acts are not mentioned n the Mishnah and Gemara as a valid means of effecting a kinyan.
Pitchei Teshuvah (ad. loc. no. 1) cites opinions (Teshuvot Chatam Sofer C.M. 12) that even regard such a kinyan, known as kinyan situmta to have validity on a Torah level and therefore is commonly employed by community rabbis as one of the means of transferring title of chametz to a non-Jew before Pesach (Aruch Hashulchan, O.C. 348:21 and 28). Teshuvot Devar Avraham (1:1) bolsters the opinion of the Chatam Sofer in a celebrated responsum. He argues that even kinyan suddar, a common halachic act (such as at a wedding, din Torah and sale of chametz) where the beneficiary of an obligation hands the one who obligates himself a utensil of some value, even though it will be returned, as means to present symbolic consideration to consummate a deal, is an example of a kinyan recognized by Halachah which emerged from common practice (as indicated in Rut 4:7 , which notes about this type of kinyan - “v’zot lifnim b’Yisrael”) and not a kinyan originally introduced by the Torah or Chazal.
Accordingly, we must investigate as to whether “calling” an item is an accepted practice among Modern Orthodox adolescents to transfer title of an item or at least to impose a “mi shepara” on those who do not respect a call. Upon investigation it emerged that no such minhag exists and that at most a “call” signifies reserving the right to negotiate the purchase of the item. Proof to this conclusion is that if “glove caller” would have offered what “goalie” considered an unreasonably low price, “goalie” would be under no legal or moral obligation to sell the glove to “glove caller”. Thus, it is clear that “glove caller” did not obtain ownership of the glove upon “calling it,” nor did “goalie” incur a mi shepara by selling the glove to someone else.
Mechusarei Amanah
Even though “goalie” is not guilty of theft and does not deserve a “mi shepara”, nonetheless it is possible that Chazal would regard his actions as mechusarei amanah, lacking in good faith by not honoring the “call”. The Shulchan Aruch (C.M. 204:7) codifies the opinion of Rabi Yochanan (Bava Metzia 49a) that one should honor his verbal commitment even though a kinyan has not been made and even if money has not yet been exchanged. Although one who does not honor his merely verbal commitments does not receive a “mi shepara”, Chazal nonetheless disapprove of his behavior - “ein ruach chachamim nochah heimenu” the spirit of the sages is not pleased with him.
However, one may defend the actions of “goalie”. First, the Rama (C.M. 204:11) cites an opinion (the Tur, C.M. 204, citing the Ba'al HaMa'or) that permits one to deviate from a verbal commitment if the second offer is higher. (If money was exchanged, on the other hand, Chazal disapprove of withdrawing from a deal even if one received a more attractive offer). However, this opinion (the Tur, C.M. 204 citing the Ba’al Hama’or) permits retracting one’s verbal commitment in case of loss, as long as no money was yet exchanged.
Although Rama concludes that one should not follow this opinion, the Shach (ad. loc. no. 8) and Netivot (ad. loc. chiddushim no. 10) cite the Bach who is uncertain about this matter. Aruch Hashulchan (C.M. 204:8) concludes that baseline Halachah permits retraction in case of loss, although it is considered to be pious behavior to refrain from retracting even in case of loss.
In our case, “glove purchaser” was a more attractive buyer to “goalie” since they were together in camp (the sale was made at the end of the camp season when “goalie” no longer needed the glove), unlike “glove caller” who was not. Moreover, “goalie” lived in Staten Island and soon after the end of camp would be leaving for a year of Torah learning in Eretz Yisrael, while “glove caller” lived in Teaneck and thus a far less convenient purchaser (the sale was made at the end of the camp season when “goalie” no longer needed the glove). Moreover, by honoring the “call”, “goalie” would be compromising his leverage in negotiations if he passes over a willing buyer in the expectation that “glove caller” will offer a satisfactory price for the glove. Thus, baseline Halachah certainly permits “goalie” not to honor the call in order to seize the opportunity to sell the glove at a reasonable price, since “glove purchaser” is a more attractive buyer than “glove caller”.
Furthermore, Teshuvot Sheivet Halevi (4:205) which is cited approvingly by Pitchei Choshen (7:1:3 n. 6) suggests that all agree that if there is a highly significant difference in the offers of the original and second potential buyers then even the Rama would agree that one may retract his verbal pledge. In our case it is fair to say that considering the circumstances “glove purchaser” was a far more attractive buyer than “glove caller” and thus “goalie’s” behavior need not be deemed impious.
Interestingly, Pitchei Choshen (7:1:3) rules that if the deal was not concluded there is no obligation to honor one’s word, since a true commitment had yet to be completed. Accordingly, it is clear that “goalie” is not considered mechusarei amanah. However, regarding this point common practice among Modern Orthodox adolescents becomes relevant. Disregarding a “call” to the extent that one does not even enter negotiations with the one who made the call is considered by youngsters to be mechusarei amanah even though no agreement on a purchase price has been reached, since he deviates from common practice.
Nonetheless we can defend “goalie’s” behavior. The practice of honoring a call does not apply when there is such a great disparity between the two potential buyers. Moreover, the tradition at Torah Academy is for the graduating goalie that possesses the championship goalie glove to sell the glove to the goalie of the incoming twelfth grade. “Glove purchaser” was an incoming twelfth grader and “glove caller” was an incoming eleventh grader. Thus, “goalie” was entitled to disregard a “call” that was not in harmony with previously established practice. Indeed, “goalie” had not made a commitment to honor the “call” as he merely remained silent when the call was made. Thus, he made no verbal commitment to allow “glove caller” to have the right to be the first to enter into negotiations to purchase the glove. The absence of consent was due to the deviation from established hockey team protocol.
Ani Hamehapeich Bechararah
Although “goalie” did not act unethically by disregarding the “call,” is it possible that “glove purchaser” acted unethically by purchasing the glove despite his knowledge that “glove caller” intended to do so. In order to determine if this is the case, we must investigate the rules of “ani hamehapeich bechararah.”
Halachah demands ethical competition in the marketplace. The Gemara (Kiddushin 59b) teaches “ani hamehapeich bechararah uva acheir venatlah heimenu nikra rasha”, one who intrudes on an impoverished person chasing a crust of bread is regarded as an evildoer. The Shulchan Aruch (C.M. 237:1) codifies this law prohibiting interference with another’s efforts to acquire an item. What are the implications of being classified as an evildoer? Sema (C.M. 237:1) explains that it is announced in shul that he is has acted in an evil manner. Thus, communal pressure is exerted to persuade the one who interfered to rectify the wrong he perpetrated.
This Halachah has manifold applications to the contemporary marketplace. For example, intruding on another’s attempt to acquire a specific previously owned automobile might be included in this prohibition. Another potential application of prohibited interference is intruding on another’s pursuit of a particular plot of land, a case already discussed by the Gemara (ibid.). Rav Moshe Feinstein (Teshuvot Igrot Moshe
E.H.1:91) even applies this prohibition to intruding on another’s pursuit of a spouse (if the couple has already agreed to marry). Thus “glove purchaser” seems to have violated this prohibition by intruding on “glove caller’s” pursuit of the championship goalie glove.
The Dispute between Rashi and Rabbeinu Tam
However, the precise parameters of this rule are subject to a great deal of debate among Rishonim and Acharonim. The most fundamental debate regarding this issue is the debate between Rashi (Kiddushin 59a s.v. Ani) and Rabbeinu Tam.(cited in Tosafot, Kiddushin 59a s.v. Ani ) Rashi interprets ani hamehapeich bechararah broadly and prohibits interfering with someone acquiring an item even if it is not readily available elsewhere for the same price (such as an ownerless item). Rabbeinu Tam, on the other hand, interprets the rule in a far narrower manner, ruling that it applies only to a situation where the item is not easily obtainable elsewhere. He believes that it is unethical to intefere with another's pursuit of an item only in a situation in which one could easily obtain the item elsewhere for the same price.
Rashi’s opinion may be based on the Torah’s dictum (Vayikra 19:18) to love one’s neighbor as oneself. The Gemara (Shabbat 31a) extends this principle to forbid doing to others that which one would not like done to oneself. Thus, since one would not want to be deprived of the opportunity to buy an object he pursues, one should not put another in that situation. Kesef Kedoshim (to Shulchan Aruch ad. loc.) explains that according to Rabbeinu Tam’s view, even though the Torah commands to love one’s neighbor as one loves himself, the Gemara (Bava Metzia 62a) states that one’s own interests enjoy priority above another’s interests. Kesef Kedoshim thus explains that the dictum to avoid doing to others what one would not like done to himself applies only when one does not sustain a loss. Thus, one may not intrude on another’s efforts to obtain an item that he can easily acquire elsewhere for the same price, as Rabbeinu Tam explains, “Let him go and obtain it elsewhere.” However, with regard to an item not readily available elsewhere for the same price, explains Rabbeinu Tam, “There is no prohibition, for if he (the intruder) does not obtain the specific item, he will not find another one.”
Although the Shulchan Aruch (ibid.) presents both views, the Rama rules in accordance with the opinion of Rabbeinu Tam. Later authorities (including the Aruch Hashulchan C.M. 237:1) conclude that Halachah follows Rabbeinu Tam’s opinion. Indeed, Maharshal (Teshuvot no. 36) observes that the majority of the Talmudic commentaries subscribe to the approach of Rabbeinu Tam. Nonetheless, pious individuals are advised to follow the stricter opinion of Rashi (Shulchan Aruch Harav Hilchot Hefkeir V’hasagat Gevul 10 and Teshuvot Igrot Moshe E.H.1:91).
“Glove caller” seems to have acted improperly even according to Rabbeinu Tam since goalie gloves are readily available in any sporting goods store. However, the item in question was not an ordinary goalie glove but the glove that was a legacy from the two Torah Academy championship seasons. Thus, “glove purchaser” acted properly only according to Rabbeinu Tam and thus his action while not technically prohibited nonetheless would seem to be regarded as impious behavior.
The Stage of the Negotiations
Nonetheless, there are two potential considerations to further defend the actions of “glove purchaser”. Halachic authorities differ as to when specifically in the purchasing process does the prohibition commence. The Rama (ibid.) rules that it starts only when the parties have agreed upon the terms of the deal and only a formal act of acquisition (kinyan) to make the sale legally binding is lacking. Sema (237:7) explains Rama’s ruling as a means of protecting the interest of the seller. If another buyer would be forbidden to interfere before all terms are settled, the seller would be trapped into accepting the terms of any offer made to him, if another buyer would be forbidden to interfere.
Prishah (237:11), however, records that the custom has emerged to regard the interference as improper even if it occurred at an earlier stage in the negotiations. Prishah writes, “When one individual comes to acquire an item and the terms of the purchase are in dispute, and the two parties are in the midst of the negotiations, and had a third party not interfered the deal would have been completed – this constitutes improper interference.” The Aruch Hashulchan (ibid.) also approvingly notes this custom, but limits it to a purchase in a market where there are many sellers and buyers. However, he rules in accordance with the Rama regarding a sales negotiation that is conducted outside of such an environment. The Aruch Hashulchan’s approach view seems to be based on the aforementioned approach of Rabbeinu Tam to restrict the prohibition to interfere to a situation in which no other similar item is available. Accordingly, in a marketplace where there are ample opportunities for purchases, there is no legitimate reason to intrude on someone else’s negotiation. However, outside of such a circumstance, another such item might not be available, and one may thus interfere with the negotiation as long as it has not been concluded.
Since, in our case, the negotiation took place outside of the marketplace and the item in question was not readily available elsewere, the Aruch HaShulchan, based on Rabbeinu Tam's ruling, would permit “glove purchaser's” interference. However, according to Rashi “glove purchaser’s” interference is unjustified. Thus, “glove purchaser's” behavior seems to be impious behavior, even though “glove caller” and “goalie” had not yet completed negotiations. Indeed, Pitchei Choshen (4:9:16) rules that proper ethical behavior is to refrain from interfering with an ongoing negotiations in all circumstances. This is especially so since it is customary among Modern Orthodox adolescents not to interfere when someone “calls” an item. Thus, the Rama’s ruling does not adequately defend the behavior of “glove purchaser”.
Seller’s Preference
A more effective defense of “glove purchaser” is that he is not at all guilty of violating ani hamehapeich bechararah even according to Rashi since he did not interfere with the purchase. Recall that it was “goalie” who initiated the negotiation with “glove purchaser” and that we concluded in last week’s issue that he was completely entitled to do so. Indeed, Teshuvot Avnei Neizer (C.M. 17) writes that the prohibition of ani hamehapeich bechararah applies only to the buyer and not to the seller and Pitchei Choshen (4:9 n. 32) records that the Chazon Ish agrees. Pitchei Choshen also observes that no authoritative responsum is written to the contrary. Moreover, the Gemara states ani hamehapeich bechararah u’va acheir v’natlah [and another came and took it] nikra Rasha”, implying that the prohibition applies only when another buyer interferes and not when the seller initiates the negotiations with another buyer who is a more desirable purchaser. Thus, since “goalie” was fully entitled to initiate the negotiation with “glove purchaser”, the latter did not violate ani hamehapeich bechararah even according to Rashi.
Conclusion
The final ruling was that “glove purchaser” was fully entitled to keep the glove and that “glove caller” could demand the right to purchase the glove. This ruling was not only in accordance with strict Halachah but also is quite fair and in keeping with the Torah Academy tradition to pass the glove from the graduating goalie to the goalie of the incoming twelfth grade. This story has a happy ending in that when “glove purchaser” graduated in 2010 he sold the glove to “glove caller” the twelfth grade goalie in 2010-2011.