Bordering on bad practices

In last week’s Torah portion, Ki Tavo, Moses sets out a covenant renewal ceremony for Israel to observe after it crosses over to the west bank of the Jordan.

Blessings were to be recited from Mount Gerizim, and curses from Mount Ebal. Most of these “blessings and curses” were general in nature, but the first 12 curses involved specific prohibitions, including against idol worship, hitting a parent, ambushing someone, taking a bribe to cause someone harm, and so forth. The third of the 12 was this one: “Cursed be the one who moves his neighbor’s landmark.”

How sad it is that some synagogues, the very institutions in which this verse was read last Shabbat and in which Torah is taught, ignore the law that prompted this curse. Deuteronomy 19:14 states: “You shall not move your neighbor’s landmark, which was established by an earlier generation.” Equally sad is that some kashrut certification agencies, which were designed to insure proper observance of a body of Torah law, also ignore this law, known as “hasagat g’vul.”

As readers of this column are aware, hasagat g’vul goes way beyond moving your fence a couple of feet onto an adjacent property. The Torah does not work that way. Its laws are more like categories, or chapter headings. We need to understand the intent of each law, and then create the legislation that matches the intent.

Obviously, the person moving a neighbor’s landmark wants to increase his property holdings at his neighbor’s expense. In an agrarian society, that would mean seeking more arable land to cultivate. The person moving the landmark thus would be adding farmland by stealing it from the farmer next door.

In other words, he would be diminishing his neighbor’s ability to make a living. The principle of hasagat g’vul, then, is less about moving landmarks and more about protecting an individual’s right to earn a decent living.

Job cites removing landmarks as one reason to question whether God punishes evildoers. “People remove landmarks,” he complains, but seem to get away with it. (See Job 24.2.) The prophet Hosea (5:10) accuses the “officers of [the kingdom of] Judah” of acting “like shifters of landmarks,” by which he probably meant they planned to seize land belonging to the breakaway kingdom of Israel.

Moving landmarks was a very serious crime, which is why Moses included it as one of the 12 specific curses.

The Sages of Blessed Memory began the process of evolving hasagat g’vul into an entire code of business law, although very cautiously. Specifically, they included encroaching on the rights of the poor under this commandment (see Mishnah Pe-ah, 5:6), and they opened the door to hasagat g’vul protecting intellectual property.

Thus, in Section 188 of the extra-talmudic commentary to Deuteronomy, the Sifre, we are told that merely attributing an opinion or ruling to the wrong person is considered hasagat g’vul. “From where do we learn that if one substitute’s Rabbi Joshua’s view for Rabbi Eliezer’s…, he is violating a negative commandment? From ‘You shall not move your neighbor’s landmark.’” By the medieval period, hasagat g’vul was fully protective of intellectual property.

Hasagat g’vul for a time also moved into the area of tenancy rights. This is an example of Torah law evolving to fit unique social circumstances. Because Jews often were restricted to ghettoes of one type or another, the availability of apartments and homes were deemed precious commodities.

When it came to business, the Sages and the decisors who followed them were more cautious, probably because the Torah itself seems to favor a free market economy. It took a while, therefore, for hasagat g’vul to fully evolve into a strict prohibition of unfair competitive practices.

In his book “With All Your Possessions,” Meir Tamari, a leading authority on Jewish business law and a former chief economist for the Bank of Israel, cited a 1955 responsum from Rabbi Yitzchak Yaakov Weiss, known as the Minchat Yitzchak. Weiss was confronted with a case in which a salesman (“Shimon”) who worked for a vendor (“Reuven”) took his customer contact list with him when he changed jobs. The Minchat Yitzchak was willing to prohibit the new employer from fulfilling Shimon’s orders obtained from those customers, but only for a limited time, in order not to “prevent Shimon’s economic advancement permanently.”

On the other hand, Weiss described Shimon as being “like one who takes his [Reuven’s] very soul….”

How does any of this apply to synagogues and kashrut certification?

Regarding synagogues, that is easy to answer. If the synagogue attempts to attract members away from a neighboring synagogue, that violates hasagat g’vul. Inevitably, some synagogues do engage in this practice around the High Holy Days. They send out mass mailings, arguing that they bought lists but had no way of distinguishing between members of other synagogues and the unaffiliated. That excuse is valid in their own towns, but not when they also buy lists of names from adjacent and not-so-adjacent towns that also have synagogues. A relatively new practice is for a synagogue to run programs not just outside its own building, but outside their own communities, which have synagogues of their own.

Regarding the certification agencies, an explanation is needed. Torah law is not a series of unrelated laws. It is a complete set, to be taken as a whole. That is why, for example, Shabbat and kashrut rules must stand aside when a person’s health is at serious risk; we are to live by the law, not to die by it.

In the case of kashrut, it is not enough to make certain the foods and their preparation meet halachic standards. Included in the mix must be whether someone’s livelihood will be adversely affected by allowing a competitor to open nearby. Is there enough consumer demand for kosher pizza to allow for more than one vendor in, say, a four-square-block area? That is a classic example of hasagat g’vul.

How sad that such violations occur. How much sadder that we allow them to occur.

About the Author
Shammai Engelmayer is rabbi of Temple Israel Community Center, in Cliffside Park, and Temple Beth El of North Bergen, both in New Jersey. A former president of the North Jersey Board of Rabbis, he chose to work as a journalist after being ordained. That career helped him hone the skills that serve him so well on the pulpit, and helped him become a popular adult Jewish education teacher in Northern New Jersey.
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