Passively Taking from Another’s Franchise

(based on Shut Chatam Sofer, Choshen Mishpat 175)


Case: Reuven bought a franchise from the sar (the ruling local nobleman) to sell alcoholic beverages, on condition that the sar would forbid his constituents from buying from anyone else, which he did. Shimon bought a franchise from a neighboring sar. Non-Jewish villagers from Reuven’s region have approached Shimon about buying from him, which hurts Reuven’s investment/livelihood. May Shimon sell to them?

Ruling: If Shimon would go out of his way to attract Reuven’s customers with special deals, all the opinions in Bava Metzia 60a would agree that this would be forbidden. However, if he is passive, it does not appear to be encroaching on Reuven’s ma’arufia (special business standing with a non-Jew) (see S’ma 387:10). There is a distinction in that there the one whose livelihood is affected is not losing money but is just not getting as much profit as he could, whereas here Reuven spent a great sum of money in buying the franchise. However, that distinction is not a factor in the gemara (Bava Batra 54b) that serves as the source for those who say that one is allowed to deal with the non-Jew with whom his friend has a ma’arufia. Even those who do uphold the exclusive rights of the Jew with the ma’arufia should agree in this case, where Shimon did not act to encroach upon Reuven.
However, there is a different reason to forbid Shimon to sell to Reuven’s customers, and that is dina d’malchuta dina (the law of the land is binding). Reuven’s sar forbade upon his constituents to buy beverages from anyone other than Reuven, and this is something he has authority to do. Thus, anyone who does not respect the franchisee’s rights is stealing from the one who the sar authorized. In such a case, the non-Jewish villagers who approach Shimon are stealing in a way that arguably makes them guilty of a capital offense according to Noahide laws. (There is what to consider because the "theft" is in lack of payment, not stealing an object). Therefore, Shimon is causing these villagers to do a sin, and it is forbidden to cause others to sin even if they are not Jewish if they are violating it only through his participation (see Avoda Zara 6a). Therefore, Shimon is obligated to protest the villagers’ interest to buy from him, not participate with their improper attempt to buy from him.