Preference Between Buyers - Rabbi Yisrael Meatuf shlita

00:02 Speaker 1 You’re listening to “Lema’an Yishme’u,” a podcast from Machon Halacha Chabad.

00:09 Speaker 2 Okay, today’s class is on a very interesting subject: choosing between buyers. Buyers come into your store, or you’re selling something and several people want to buy it, and you say, “I’ll sell to this one, I’ll sell to that one.” There are several questions here. The first is: can you discriminate? Can you say, “I only sell to... Chabad chassidim. I won’t sell to anyone else”?

00:34 Speaker 3 I think this comes up mainly with apartments.

00:36 Speaker 2 With apartments.

00:37 Speaker 3 Someone selling a home decides to sell it to someone who...

00:40 Speaker 4 Secular Jews first of all.

00:42 Speaker 2 Yes.

00:42 Speaker 4 Secular Jews first of all—and remind me, also... secular Jews, right?

00:49 Speaker 2 Yes. So we’ll see that not only is it permitted to give preference to friends and the like, there’s a mitzvah to do so. There’s an order of priorities that the Alter Rebbe mentions here. What is the mitzvah when choosing between several people who come to you? We’ll be talking about buyers.

01:08 Speaker 4 We agreed.

01:09 Speaker 2 What? No, let’s start at the beginning. You advertise an apartment, for example. Several people call. One of them is this or that. We’ll look at the possibilities. The Alter Rebbe gives an orderly list of priorities. Now, the most important halacha here is a very well-known one: bar metzra, the law concerning an adjoining neighbor. Someone who lives right next to you could open up the apartment and expand his own, or the same could apply to fields, and so on.

01:42 Speaker 4 The same plot of land.

01:43 Speaker 2 That’s another point we’ll see shortly. So let’s look at what we’ll learn today: the order of priority among buyers; discrimination in selling—“I’ll sell to this one but not to that one”; and discounts for certain people. That’s also a question I just received. Someone was selling something and had already settled all the details with a buyer—the price and everything. It was a digital course. There are discounts on those; it’s...

02:25 Speaker 4 What was he selling?

02:26 Speaker 2 A course. Selling courses is very common today. You prepare a course, sell it to people, and run promotions: during this period it costs this much, and so on. He had agreed on a price with someone. That person said—in this case it was a woman—“I’ll speak with my husband about exactly how to pay.” The next day, they happened to start a promotion on that very course. So the course owner asks: do I have to tell that buyer that a promotion started today? She hadn’t actually bought it yet. I’ll discuss that later.

03:02 Speaker 4 A promotion with a lower price.

03:03 Speaker 2 A promotion with a lower price.

03:03 Speaker 4 He’d already paid the price.

03:04 Speaker 2 He hadn’t paid yet. They’d reached an agreement. He said he’d make arrangements and figure out how to pay, but he still hadn’t paid. Now there’s a promotion, so perhaps he should be included in it? The subject of giving a Jew priority over a non-Jew is very, very broad. We’ll touch on a few small points. And if we get to it at the end, there’s the question of a line. There’s a line, and the seller suddenly wants to move someone ahead in it. Does he have the authority to do that? Really, the whole subject of lines. We’ll only touch on a few small points today, because in our recent classes we’ve been dealing with the seller—what the seller does. Later we’ll move on to the laws concerning the buyer. The question of a line, for example, is more about the buyer, so we’ll expand on it another time.

03:48 Speaker 4 What about it concerns the buyer? A line...

03:50 Speaker 2 Usually, the questions about a line are about cutting in. “Hold my place in line; I’ll be right there.”

03:56 Speaker 4 Waiting for the bus, and...

03:58 Speaker 2 Yes, for example. Usually that’s more about...

04:03 Speaker 4 Coming around the back of the house.

04:05 Speaker 2 Yes, there are all kinds of... Yes. Not everything is addressed explicitly in halacha, but you can find various...

04:11 Speaker 4 There’s something, something like that. Something about a line.

04:15 Speaker 2 With loans...

04:16 Speaker 4 With someone else, under the rules I set. The question is whether that’s also based on...

04:29 Speaker 2 Yes. Now, regarding loans, I’ll tell you the difference between a line and what you’re talking about. Actually, most of today’s class will be about what you’re talking about: choosing between people. With a line, it’s only a matter of time. There’s enough in the store for everyone. It’s a matter of...

04:45 Speaker 4 A month or two weeks, did you hear?

04:46 Speaker 2 That’s... Okay, so that’s more... On the subject of loans, the Alter Rebbe gives explicit halachos. There’s a hierarchy of who comes first: a neighbor, a Torah scholar. All those halachos are there.

04:59 Speaker 4 Family, perhaps...

05:00 Speaker 2 A relative also has priority. Yes, yes. We’ll see the exact order here for selling. Loans are a little different, so we shouldn’t apply this order to loans. We’ll see the order shortly. Let’s start with the sources in the Torah. The Torah says, “You shall do what is upright and good in the eyes of Hashem.” The Sages learned from this that one must act in a good and upright way. In other words, when something is right in general, you should look out for the other person even if you’re not legally obligated to. The Sages included some things under this principle without making them binding obligations. We’ll see that there are many disagreements about this among the halachic authorities, and the Alter Rebbe has a distinctive approach. But there’s one thing the Sages instituted as a binding ordinance: bar metzra. When land next to someone’s land is sold—that’s something we’ll look at shortly. They didn’t place this obligation on the seller, but rather on the buyer. When the buyer purchases it, he needs to know that if it becomes clear that the neighbor wants to buy it, he’ll have to hand it over to him, and the neighbor will reimburse him for what he paid. This is a law you can even bring before a beis din and enforce.

06:17 Speaker 4 After he’s bought it.

06:18 Speaker 2 Yes.

06:18 Speaker 4 After he’s bought it.

06:19 Speaker 2 After he’s already bought it, he has to hand it over to the neighbor.

06:22 Speaker 4 Say he’s lived there for five years and he...

06:24 Speaker 2 No, no, no. There’s a time limit. It’s defined by how long it should take for him to hear about it—roughly, the time within which he could be expected to hear. There are quite a few halachos about this. If he doesn’t act in time, he loses his claim. And when he comes, he needs to bring the money in cash. There are many halachos involved, but in general, he has to pay what the buyer paid.

06:45 Speaker 4 Even if it’s now, the day after the sale, he...

06:48 Speaker 2 Yes, what he paid. That’s how the halachic authorities define it: it’s as though the buyer purchased it as the neighbor’s agent. That’s how it’s treated, to the point that retroactively, it’s considered to have been the neighbor’s since then. There are many halachos involved. It’s very, very complicated. There’s a long section, siman 175 in Choshen Mishpat, with a great many halachos.

07:09 Speaker 4 Bar metzra.

07:10 Speaker 2 Bar metzra, yes. But here, notice that when the Alter Rebbe speaks about bar metzra, he only alludes to it—really just alludes to it—because he’s discussing the whole question of priority. Here he’s talking about the seller. The law of bar metzra doesn’t apply to the seller at all; it applies to the buyer. The buyer must take care not to purchase it, or, after purchasing it, must hand it over to the neighbor. And “neighbor” means someone immediately adjacent, not just someone nearby or anything like that. The point is that it would be easy for him to manage the property together with his own. So with a field, it has to be directly adjacent. With houses, the halachic authorities disagree, but the Shulchan Aruch rules that bar metzra applies to houses too, if they’re directly adjacent in a way that allows an opening to be made between them.

07:56 Speaker 4 Below.

07:56 Speaker 2 Below could also qualify. The question is how feasible it really is to join them.

08:00 Speaker 4 Say there’s a neighbor whose fence adjoins the property. Can he say, “He has to sell it to me”? For example...

08:09 Speaker 2 Right. In a moment—maybe let’s go a little further, then we’ll look at the sources and get into the details.

08:15 Speaker 4 In the Gemara, there’s actually a case of someone surrounded...

08:17 Speaker 2 If there’s...

08:19 Speaker 4 The fourth side—that comes up there.

08:22 Speaker 2 No, what’s discussed there is something else. Someone built a fence around another person’s property on three sides; the fourth side is a different matter.

08:29 Speaker 4 No, that’s not bar metzra.

08:31 Speaker 2 No, that’s not bar metzra. A bar metzra is any adjoining neighbor, on any side. There can be several bar metzra neighbors, one on each side, but the properties have to be completely adjacent. The Gemara gives various examples of something separating them—a rock, or something that prevents a plow from passing through. In that case, it no longer counts, because the fields can no longer be worked together. One more verse: “When you sell something to your fellow or buy from the hand of your fellow.” According to the Midrash, this verse teaches—and we’ll soon see to what extent this is halachah—that you should sell to or buy from a Jew. It’s brought in Rashi on the Torah: you should prefer a Jew over a non-Jew. Now let’s learn a general principle to get things straight: bar metzra versus the laws of precedence. These are two very, very similar laws, but they’re different. As I said earlier, the verse says, “You shall do what is right and good.” The Torah commands us to do what is right and good. What does that mean? The Sages saw fit to apply it to a particular case, such as bar metzra, as we said, where it’s an actual obligation. They instituted a rule requiring the property to be transferred to the bar metzra neighbor. There are other laws of precedence that aren’t strictly obligatory; rather, they apply in the first instance. You should give someone preference, as we’ll soon see. So, as you can see here, first of all, the obligation of bar metzra falls on the buyer. It’s a little hard to see from far away.

09:58 Speaker 4 It falls on the buyer. He’ll come to you and ask you to sell it to him.

10:01 Speaker 2 We can see it perfectly. You can see it? The buyer—when he buys, he needs to check beforehand, if he wants to protect himself. Now, over the generations—I don’t know how common it is today—a custom developed that whenever someone sells, he first checks with his neighbor. If the neighbor doesn’t want to buy, he advertises the property. Then, when a buyer comes, they tell him, “Don’t worry, the bar metzra issue has already been taken care of. You don’t have to worry that you’ll buy it and go to all the trouble, and then suddenly they’ll take it from you. I’ve already spoken to the adjoining neighbor; he doesn’t want to buy.” No, that’s what the halachic authorities say, because the subject of notifying him appears in halachah, and everyone asks: What does “notifying him” mean? There’s no obligation to do that. It doesn’t fall on the seller at all; it falls on the buyer. So they all explain that notifying him was the custom, not an obligation. Why, in fact, did they place this obligation on the buyer and not the seller? Look at number two on the page, from Even HaEzel on the Rambam. I’m starting at the end of the first line: “In the entire law of adjoining property, they instituted an obligation only on the buyer, not on the seller. The Rashba likewise wrote in Shitah Mekubetzes. The reason appears to be that the seller cannot insist that the adjoining neighbor buy, and the adjoining neighbor will want a lower price.” If he goes to the adjoining neighbor and says, “Come, do you want to buy?” the neighbor will want to pay less. But what happens with a buyer? The seller advertises it to everyone, and the buyer has to deal with the neighbor. “If the buyer tells the adjoining neighbor to buy it for the amount he intends to pay, and the neighbor won’t pay it, the buyer may purchase it.” If you place the obligation on the buyer, and the buyer paid a million shekels, while the adjoining neighbor says, “I want it for less,” the buyer tells him, “You can’t do that. I paid a million.

11:52 Speaker 2 Give me everything I paid.” If the adjoining neighbor were dealing with the seller, he would want to pay him less. Let’s go on a little further.

12:00 Speaker 4 Here he can insist on [unclear]. Why? Why is the line so short?

12:05 Speaker 2 The Gemara says explicitly that even if he bought something worth a hundred for two hundred,

12:11 Speaker 4 he has to pay him.

12:12 Speaker 2 He has to pay him, though you need to make sure there wasn’t collusion between the seller and the neighbor. They could do what people do nowadays with all sorts of things—inflate the price in the contract for various reasons. So there are a lot of laws about this. Now let’s go on a little further: “But if we place the obligation on the seller, he won’t be able to find out how much another buyer would offer him. The Sages therefore took the law of bar metzra off the seller and placed it on the buyer.” In other words, when someone sells—today, when people advertise an apartment, they generally advertise its price too, and so on. But in the past, a person would say, “I want to sell,” and advertise it. There’s an explicit law, for example, concerning a lien: say you lend someone money and he has nothing with which to repay you, so you take his land. Right? Now the general rule with a loan is that only if there’s a written document can you take land he subsequently sold to others, because that land is subject to the lien. Without a document, you can’t. Why? Because the people who bought it say, “We didn’t know he owed money. We bought it, and now you suddenly take it from us?” When there’s a document, the debt becomes public knowledge.

13:21 Speaker 4 Every—there’s a saying.

13:23 Speaker 2 “A document has a voice”: witnesses come and sign the document, and when people see that a document has been written, the news spreads. Now, I don’t want to get too far into that. That’s with a loan. With a sale, you don’t need a document. If you sold someone something with a guarantee, and he comes to claim on that guarantee, he can also take property from people who bought from you afterward. Why? The Gemara says, “A sale is always public.” A seller always wants that. A borrower is embarrassed when he borrows, so he borrows discreetly. A seller sells publicly. Why? Because he wants buyers to compete for his property so he can sell it for the proper price. In other words, things are a little different today, but in the past, when someone was selling, he wouldn’t immediately name a price. He’d say, “I’m putting it up for sale,” wait for several people to come, and then start a sort of negotiation among them—a kind of auction—to arrive at a price. So the Even HaEzel says here that if you tell the seller he has to go directly to the adjoining neighbor, he’ll make the deal with him alone and might sell it too cheaply. That’s why the seller puts it out to the public, and it’s the buyer who has to deal with the adjoining neighbor. Now, applying this to our day: seemingly, if you know exactly how much you’re selling it for, then yes, call the neighbor or meet with him. Tell him, “Listen, I’m selling it for such-and-such an amount, if you want to buy it.” In terms of doing what is right and good, we’ll soon see that there are various people to whom you should give preference. You should prefer a neighbor, even one who isn’t directly adjacent. So surely you should prefer the one directly next to you if it causes you no loss. If you’re afraid it will cause you a loss, if you know him

15:04 Speaker 2 to be unreliable or something like that, of course you don’t have to approach him. But if there’s no loss involved, then just as it’s proper to give precedence to various people we’ll discuss shortly, it’s certainly proper to give precedence to the bar metzra neighbor. And we’ll see how this is hinted at in the Alter Rebbe’s wording. Look at section one: “One who wishes to sell land or a house, and two people come, each saying, ‘I will buy it for this price,’ and neither is an adjoining neighbor...” Then he begins to detail the laws of precedence. That is, by saying “neither is an adjoining neighbor,” he implies that if one of them is an adjoining neighbor, of course you give him precedence. Now, that’s the situation here, but it doesn’t say anything about notifying him. It simply says that the person wants to sell, and two people come, each saying, “I will buy it for this price.” They explicitly said there that “this price” means they’re asking to buy at the same price. If one of them is willing to pay more, you can prefer him. You’re entitled to get the highest price for what you’re selling.

16:08 Speaker 4 You don’t have to take a loss.

16:10 Speaker 2 Yes, you don’t have to take a loss. Then there’s the order of precedence here; we’ll look at it. So there are three differences between bar metzra and the other laws of precedence. First, bar metzra falls on the buyer, whereas the other laws of precedence fall on the seller. Second, bar metzra applies only to a neighbor whose property is directly adjacent. If it isn’t directly adjacent, the laws of bar metzra don’t apply. With the other laws, for example, you should give another neighbor precedence even if his property isn’t adjacent. And third, the bar metzra neighbor can compel the transfer and take the property.

16:48 Speaker 4 Even after the whole transaction.

16:49 Speaker 2 The bar metzra neighbor can compel the transfer and take the property even after the fact. The other forms of precedence, by contrast, apply only in the first instance, not after the fact.

16:56 Speaker 4 Even if there was a clear prior claim and everything...

17:00 Speaker 2 In what sense? With the other forms of precedence, once someone is already seriously pursuing a purchase, there’s a concept called “the poor person turning over a cake.” That means someone has already begun buying something, has settled on it, they’ve agreed on a price and it’s understood that he’s buying it, and someone else comes along, jumps ahead of him, and buys it—

17:17 Speaker 4 He’s wicked.

17:17 Speaker 2 He’s called wicked, yes. If it’s something being offered right now, that’s different, but generally he’s called—what?

17:24 Speaker 4 A chamsan—someone who pays for what he takes.

17:27 Speaker 2 Yes, a chamsan. A chamsan is someone who forces another person to sell him something.

17:33 Speaker 4 I’m pointing out, by the way, that he’s supposedly doing a good deed, but he isn’t.

17:38 Speaker 2 Meaning, he’s not a thief.

17:40 Speaker 4 Yes.

17:40 Speaker 2 He isn’t a thief, but he is considered a wicked person. Now, with ani hamehapech bechararah and the rules of priority here, it isn’t entirely clear what takes precedence over what. But the straightforward reading seems to be that all these priorities apply at the outset, as long as no serious buyer has already begun closing the deal. You can see that in the Alter Rebbe’s ruling, too. Two people come wanting to buy. They arrive together, and both want to buy, so you give one priority over the other. But if one has already entered into the deal, is close to closing, and is really serious, and suddenly your brother shows up, then giving the second person priority becomes a problem. Incidentally, the problem is more on the buyer’s side than the seller’s. The one called wicked is the buyer. Why? Because he’s the one who— The seller, so to speak, can say, “You know what? I don’t want to sell to anyone at all.” You don’t want to sell to anyone? Fine, you don’t have to. Don’t sell.

18:39 Speaker 4 Is he obligated?

18:39 Speaker 2 He isn’t obligated to sell.

18:41 Speaker 4 As though he’s already [unclear] to rent it.

18:44 Speaker 2 No. He offered it. He offered it. Now, let’s say he offered it. Someone comes to buy, and then suddenly the seller’s brother arrives. That first person is already serious, almost closing the deal and everything. Now, of course, there’s the rule about someone who fails to keep his word: a person who promised something should stand by what he said. But there was no formal transaction. There was no formal transaction, so the seller has the right to say, “I’m changing my mind. I’m changing my mind.” After I’ve changed my mind and no longer want to sell to anyone, I now sell to my brother. In principle, he can do that. But that buyer who came along—you caused someone who was already close to a deal, already serious, to be pushed aside, and you came and bought it. That is called being wicked.

19:21 Speaker 4 That brother who didn’t...

19:22 Speaker 2 Yes, that person is called wicked because of what he does. Now let’s look at the order of priority. Pay attention to the Alter Rebbe’s wording. I can tell you I’ve read it—I don’t know, maybe even a hundred times. Really. I read it many times last year, and now again and again and again. You can read the whole thing and understand the order in two different ways at once. And I... The big question in the Alter Rebbe’s wording is—he begins... Come, let’s read it together, and I’ll show you how it develops. The Alter Rebbe begins on the third line. After saying that two people came and neither of them owns the adjoining property, he says: “If one of them lives in his city and the other is from another city, the resident of his city takes precedence.” If two people want to buy, one a resident of the city and one not, you give priority to the city resident. Simply why? Because he’s in the city. Having two properties in the same city is much easier. The Alter Rebbe continues: “If both live in his city and one of them is his neighbor, his neighbor takes precedence.” So it’s very clear to us that a city resident takes precedence. Within the city, someone lives nearby. He isn’t necessarily the owner of the adjoining property; he isn’t actually right next door, but he is a neighbor. He lives in the same building, so you give him priority. He continues. Now, from here it’s a little unclear whether the Alter Rebbe is still talking about people within the city or speaking generally: “And if the other is a friend with whom he regularly associates, while he does not associate with his neighbor at all, his friend takes precedence.”

21:03 Speaker 5 Someone also—

21:04 Speaker 2 You have a neighbor and you have a friend. The friend takes precedence. Now, where is this friend from? Is he in the city or another city? That’s very, very unclear here.

21:13 Speaker 5 No, if he’s in the city, then what’s the question here? Then he takes precedence over him.

21:18 Speaker 2 Wait, we said earlier that within the city—

21:21 Speaker 5 Whether he’s a neighbor or not.

21:21 Speaker 2 If he’s a neighbor, he takes precedence. Now he says that if the other person is a friend, the friend takes precedence. And what is this friend? Is he in the city? Is he both a city resident and a friend? Or does a friend take precedence even over a city resident? Let’s continue. “If one of them was his friend and the other his relative”—notice—“his friend takes precedence.” A friend is more—more clos—has greater priority than a relative.

21:50 Speaker 5 Well, that’s one kind.

21:50 Speaker 2 As it says, “Better a neighbor who is near than a brother who is far away.” And the early commentators explain that “neighbor” here doesn’t mean someone who just happens to live nearby. It couldn’t be that someone who merely lives nearby takes precedence over your brother. The intent is a neighbor who is clos—someone who has dealings with you or regularly associates with you. So when the verse says “neighbor,” it really means a friend. That means a friend takes precedence over a relative. A relative takes precedence over a neighbor. The question is whether the friend and the relative live in the city or not. Let’s go on: “But before anyone else, his relative takes precedence.”

22:29 Speaker 5 “But before anyone else”? Not, not, not...

22:33 Speaker 2 That isn’t clear either. Who is “anyone else”? People within the city, or people in general? People outside the city, or anyone? In other words, is this whole section of the Alter Rebbe’s ruling still continuing from the opening, “If both live in his city,” or has he moved on and is now speaking generally? Let’s read to the end: “Except for a Torah scholar, who takes precedence even over his neighbor and the friend with whom he regularly associates.”

22:57 Speaker 5 But not for— But not for a mitzvah matter.

23:00 Speaker 2 Not a mitzvah matter. Not a mitzvah matter. Now, this is what comes out of it: the very highest priority is a Torah scholar, followed by a relative, then a friend, then a neighbor. That’s the order; it’s very clear in the Alter Rebbe: Torah scholar, relative, friend, neighbor. The question is whether they’re all within the city or some are outside it. That’s the question. So the question is whether a city resident ranks above a Torah scholar or below the entire list. That’s the question.

23:29 Speaker 5 And he can also make connections, too, that’s...

23:33 Speaker 2 How, how? Ah. Not to do the [unclear] with—

23:37 Speaker 5 No, no, no.

23:40 Speaker 2 We’re talking here about selling something. You’re selling it to him. Go on.

23:44 Speaker 5 That’s not... That’s puzzling.

23:46 Speaker 2 Yes, completely. Now, I think that from the wording of the Gemara, it appears that a Torah scholar, a friend, and a relative take precedence even over a city resident. In other words, they take precedence even if they’re outside the city. That’s how the wording seems to me, because the wording there in the Gemara is “neighbors in the city” and “neighbors in the field.” Neighbors in the city take precedence—that’s how the Gemara starts. Between a neighbor and a Torah scholar, the Torah scholar takes precedence. In other words, the Gemara uses the word “neighbor” when it speaks earlier about a city resident; it uses the term “neighbor” there too. Rashi says a Torah scholar takes precedence, so it appears that he takes precedence over all categories of neighbors. That’s how it looks, and that’s what I put here in the diagram. So you see: a city resident takes precedence over someone from another city. Above him is a neighbor, who lives closer to you within the city. Above him is a relative. Then comes a friend, because “Better a neighbor who is near—”

24:42 Speaker 6 Very close.

24:42 Speaker 2 “—than a brother who is far away.” So a friend ranks above a relative, and then comes the Torah scholar. And the owner of adjoining property would apparently have the highest priority.

24:50 Speaker 6 It’s all straightforward.

24:51 Speaker 2 Yes. And then, except—this all applies when there is no owner of adjoining property. That’s where the Rambam begins.

24:55 Speaker 6 There’s a rule about blessings, where I first make the blessing over what I like most.

25:00 Speaker 2 Okay.

25:01 Speaker 6 If I like everything equally, then there’s an order according to MAGA ESh and so on. Is it the same here? Let’s say I most want to give it to my relative.

25:10 Speaker 2 Incidentally, with MAGA ESh, I think preference comes after MAGA ESh, if I’m not mistaken. Within—

25:16 Speaker 6 MAGA ESh?

25:17 Speaker 2 If I’m not mistaken, it’s within the... between borei pri ha’adamah and borei pri ha’etz, between borei pri ha’adamah and borei pri ha’etz, where you can give priority based on—actually, the other way around. If you prefer, for example, the food that grows from the ground, then you have to put it before the fruit of the tree. But with the other things, MAGA ESh has greater priority. Okay, that’s—okay, what did you want to say about it?

25:33 Speaker 6 We see that what I like more matters more than the prescribed order.

25:38 Speaker 2 Okay.

25:39 Speaker 6 So, is it the same here? Meaning—

25:41 Speaker 2 So that’s the friend, apparently. Apparently, that’s the friend. You see that the friend is almost at the top; above him is a Torah scholar. A Torah scholar has special rules, and in many matters he is given priority. His standing isn’t based on affection.

25:55 Speaker 6 If I insist on giving it to a friend rather than a Torah scholar, can the scholar take it against my will?

25:59 Speaker 2 No. That’s what we said earlier. All of this is a mitzvah incumbent on the seller from the outset, but it isn’t a legal entitlement. He has no way to take it afterward, or beforehand either. He can’t seize it; he can’t insist. The seller decides. The seller has a mitzvah to give priority. Now here—

26:16 Speaker 6 Even if he doesn’t want to change all the prices?

26:18 Speaker 2 No, no, no. They’re both offering the same price. Certainly—we said that’s the starting point.

26:22 Speaker 6 What will he gain if he—

26:23 Speaker 2 He isn’t supposed to lose out. Right, in theory he shouldn’t lose even a shekel. Yes, those sums. We’ll soon look at the case of a Jew and a non-Jew, where there is room for him to lose out. We’ll talk about that. Now the Alter Rebbe concludes: “All these priorities are mitzvos of the Sages, fulfilling what is said, ‘You shall do what is right and good in the eyes of Hashem your G-d.’” As you know, the Alter Rebbe’s wording looks very simple, but there’s a dispute among the early authorities here, and his wording seems to smooth over the differences between them. Rashi writes that it’s only advice, a good and upright way to act, something like that. It sounds like good advice, not an obligation at all. That’s how it appears from Rashi. The Rambam says it’s included in “you shall do what is good and right,” but he concludes, “The Sages did not command any of this; rather, a good person does it”—something along those lines. Now, the Beis Yosef says that Rashi and the Rambam disagree about whether it’s a mitzvah: according to Rashi it’s only good advice, while according to the Rambam it’s a mitzvah. Others ask: Didn’t the Rambam himself say that the Sages did not command it? One of the Chabad chassidim wrote about this, saying that the Alter Rebbe hints here at his understanding of the Rambam. He says, “mitzvos of the Sages, fulfilling what is said, ‘You shall do what is right and good.’” In other words, when you do it, you fulfill the mitzvah of the Sages. It isn’t really obligatory; it’s a mitzvah of the Sages that you fulfill by doing it. Once you do it, you fulfill it, but it’s not quite an obligation. That’s what the Rambam means by “the Sages did not command it”: they didn’t obligate you to do it. Right? It certainly isn’t a Torah-law obligation. If you didn’t do it, it couldn’t be enforced in a Torah-law case,

28:08 Speaker 2 but apparently it isn’t quite an obligation either. It’s the sort of thing you should do in the first place.

28:14 Speaker 6 A mitzvah.

28:14 Speaker 2 It’s a mitzvah of the Sages. Whoever does it fulfills the mitzvah of carrying out what is said, “You shall do what is good and right”—these priorities. A bar metzra, an adjoining property owner, can enforce his claim in a Torah-law case.

28:26 Speaker 6 That’s the basic law.

28:27 Speaker 2 That’s something from... It’s an enactment of the Sages, as a matter of basic law.

28:30 Speaker 6 As a matter of basic law.

28:30 Speaker 2 Yes, but it applies to the buyer, not to the seller.

28:35 Speaker 6 Can you conceal it from the seller?

28:40 Speaker 2 From whom?

28:40 Speaker 6 Someone sells the apartment to somebody else. No one would agree to that under any circumstances. Is there a reason to tell the neighbor, “I’m going to sell,” so that—

28:50 Speaker 2 The neighbor—you mean the adjoining neighbor?

28:52 Speaker 6 Yes.

28:52 Speaker 2 The adjoining neighbor. So, if you lose absolutely nothing by it, why wouldn’t you let him know? It could also prevent problems later with the buyer. The buyer will purchase it, and then the neighbor will suddenly come and take it from him. Why create a mess for the buyer? So if there’s no loss to the seller, it’s proper to let the neighbor know. There’s nothing like an obligation, but it’s proper. If he’s concerned about any kind of loss, though, he doesn’t have to notify him. He can advertise it generally, as we saw earlier from the Even HaEzel. If he wants there to be competition for his apartment, he can advertise it; he doesn’t have to notify the neighbor. But as we’re saying here—and this is what I said earlier—there’s “You shall do what is right and good” to fulfill. When you give your friend priority, when you give the neighbor priority, you fulfill “You shall do what is right and good.” All the more so if you give the bar metzra priority. The difference is that here we’re talking about a case where they all came to buy at the same time, and then this mitzvah applies. You’re asking whether he was obligated to notify him beforehand. There’s no obligation to notify him. But if it won’t cost him anything, why not let him know? It would be a good thing, and apparently it too would be included in what is said, “You shall do what is right and good.”

30:04 Speaker 6 Wow. So “You shall do what is right and good” applies to this too.

30:09 Speaker 2 Yes. Now, perhaps before we move on to a Jew and a non-Jew—

30:15 Speaker 6 What’s the mitzvah in this case?

30:18 Speaker 2 What? Of what? Of the bar metzra, or of the priorities?

30:24 Speaker 6 All of these things.

30:25 Speaker 2 It does come up. There are Torah-law cases involving a bar metzra; it can come before a beis din. It would be very difficult, because today there’s civil law, and you’d have to come and cancel a contract and do things like that. I don’t know how they—

30:39 Speaker 6 The beis din.

30:41 Speaker 2 The beis din can tell him... If both sides come and listen to the beis din, it can say, “Listen, this is what you need to do.” Now, if there’s a penalty in the contract and he’s liable for it, it may be that the bar metzra has to pay that penalty, because the buyer and the seller are both not supposed to lose money.

30:58 Speaker 6 A person advertises an apartment. The neighbor knows, but it’s too expensive for him.

31:05 Speaker 2 Okay, that’s a side point. Right, right, right, right. If he knew about the sale and didn’t act, he loses his right as well. No, no, no, he doesn’t have to. He doesn’t have to, he doesn’t have to, he doesn’t have to. As we said, the seller isn’t obligated in that respect. Now let’s start talking about discrimination. A person says, “I don’t want to sell to you.” There are many possibilities here. It’s a very, very broad subject, and it’s very hard to find halachic sources on it. For us, it’s a familiar idea: a prohibition against discrimination, affirmative action, all sorts of things like that. There’s a responsum in Mutzal Me’esh that deals with it. Not many have discussed this subject. Look at number three. There’s the standard collection of responsa, Mutzal Me’esh, and there are additional responsa by the same author that were published in another book. That’s why I wrote “in the book Rabbi Yosef”: if you want to look up the source, it’s only in that book, not in the standard collection. He says: “I had a question about someone who has an item in his shop that is for sale, and two people come to buy it. Each says, ‘Sell me the item.’ May the seller say, ‘I want to sell it to you,’ meaning, ‘I want to sell it to this one and not to that one,’ or not?” To discriminate in that way: I want to sell to him and not to him. First of all, we already know all the laws of priority we discussed earlier. So certainly, if one of them is a relative and one is a friend, and so on, not only may you favor one over the other, it’s a mitzvah to do so. The question is what happens if they’re equal, and you look at them and say, “I want to sell to you, not to you.” He goes on at length there. We’ll try to cover just this section. He rejects

32:55 Speaker 2 all the proofs he brings. In the end he says that despite everything he’s said, and though he has no proofs, the matter is clear to him. This is the next line: “It is clear to me that when people come to buy, the seller may say, ‘I want to sell to this one and not to that one.’” It’s clear to him that the seller has the right to decide whom he sells to and whom he doesn’t. Then he—what?

33:19 Speaker 7 Only if he benefits.

33:21 Speaker 2 If you mean that he benefits, then of course he’s allowed to. Certainly. But what if you know he’s suddenly making a decision based on someone’s community of origin, or I don’t know what? For us, it’s very accepted that you may not discriminate between communities and so on, but ultimately he’s the seller. He could choose not to sell at all. He has the right to tell you, “I’ll sell to the other person, not to you.” Notice, we’ll continue a little more in a moment. It isn’t that simple. Yes, for now it’s simple. Then he says, “But what I am uncertain about is whether”—and here we skip a few lines. This recalls the law you mentioned about someone who forces a sale. He asks: What happens if the person the seller didn’t want to sell to forces him to sell to him? Is he considered someone who unlawfully forces a sale or not? After all, the seller didn’t refuse to sell the item; he wanted to sell it. He’s uncertain about this. Then he raises another question: “There is also room to ask: Even if you say that, regarding an item offered for sale, he may say, ‘I want to sell to this one and not to that one,’ can the other person compel him to sell it to him against his will? Do we say that even so, he is called a robber?” Since the seller wants to sell, but not to him, can he compel him? Can he say, “You’re willing to sell to anyone else, but not to me—what right do you have?” And so on. What he means is this: There’s a law that when one person benefits and the other loses nothing, we compel a person not to act like the people of Sodom. That’s a halachic principle. Now, suppose someone comes into a store and the owner says, “I don’t want to sell to you.” The customer says, “Wait. You’ll sell it to anyone else who comes in.” We’re not talking about two people standing in front of him, where he prefers one over the other. Let’s say I walk into a store and he doesn’t sell to Chabadniks. Now

34:56 Speaker 2 I tell him, “You offered this item for sale. You want to get a hundred shekels for it. What difference does it make to you if you sell it to me?” There’s a principle that we compel a person not to act like the people of Sodom: when one person benefits and the other loses nothing, we compel him. So he’s uncertain here. Can I force him to sell it to me? You’ve already offered it for sale, and you lose nothing. Force him to sell it to me. That’s the question he raises.

35:19 Speaker 7 One.

35:19 Speaker 2 Yes, someone who came in. Yes. Yes. Now, one more thing we discussed earlier, and then we’ll move on to a Jew and a non-Jew. He has his doubts; it remains unresolved. There aren’t many sources on this subject. I saw a book someone published recently in which he wanted to say that the seller isn’t obligated to sell. That’s what he wanted to say. I tried to find a basis for the idea somewhere.

35:44 Speaker 7 Isn’t this already addressed in the Torah?

35:46 Speaker 2 What do you mean? I’m talking about someone who has already reached an agreement with the seller.

35:50 Speaker 7 No, you were the first to inquire, then you left and…

35:53 Speaker 2 No, I mean someone who has already reached an agreement with the seller and things have already moved forward, and then someone else comes and takes it from him.

36:00 Speaker 7 He only inquired, he only…

36:02 Speaker 2 Yes, exactly. So perhaps the seller couldn’t have sold it to him. One second, have mercy. Can you turn on the air conditioner?

36:13 Speaker 7 The air conditioner.

36:13 Speaker 2 Ah, ten minutes—have mercy.

36:14 Speaker 7 The air conditioner?

36:15 Speaker 2 Yes. Can you do that? Yes, so the Torah study will be more… Now, before we move on to a Jew and a non-Jew, there’s the discount we mentioned: someone offered a discount starting on a certain date, but another person had already reached an agreement with him earlier. This was a real question I received. Someone asked me, “What do I do now? Do I have to tell him, or don’t I?” And I had to try to resolve it right away. Now, seemingly, it goes like this. We discussed all the laws of ona’ah, overcharging. In principle, if a person’s price is one hundred—that’s what he sells the product for—he can’t tell someone who walks in, “For you it’s one hundred and five.” The laws of ona’ah apply here. But a discount is a discount. There’s the regular price, and I offer a discount. I don’t have to give everyone a discount. I decide whom to give it to. In principle, I can say, “Discount for Chabad chassidim only.” That’s my right. I decide whom to give a discount to. Now let’s think for a moment about why he offered this discount. A person advertised a discount for his course, from one date until another. What was he trying to do? Attract inquiries. So he was offering the discount to people who heard about it through that promotion and came to him. The person who had already reached an agreement with him yesterday, who had already agreed to pay and settled everything, didn’t come because of that advertisement. So he doesn’t have to give him the discount. That person isn’t included in the offer. Now, to be on the safe side, it’s best for someone offering a discount to say, “For those who present this advertisement,” or to use a coupon code or something like that. This way, he makes sure that only those who saw the advertisement receive the discount. Everyone else—including someone who happened to call on the day of the discount—might have been planning to buy it

38:17 Speaker 2 for a long time already. Now, if you made the offer conditional on presenting this advertisement or using this coupon code, that’s it—you don’t have to give him that discount. So that’s the way to do it from the outset. Now let’s move on to preferring a Jew over a non-Jew. We have a few minutes. There’s something very interesting in a Midrash, cited by Rashi, but it doesn’t appear in halachah—not in the Shulchan Aruch and not in the Alter Rebbe’s Shulchan Aruch. It’s the whole subject of preferring a Jew over a non-Jew. The Midrash says: “How do we know that when you sell, you should sell to your fellow Jew? Scripture says, ‘When you sell something to your fellow’—sell to your fellow.” Right? It says, “Something to your fellow.” Sell to your fellow. “And how do we know that when you come to buy, you should buy from your fellow Jew? Scripture says, ‘Or buy from the hand of your fellow.’” From whom should you buy? From your fellow. So it’s preferable to buy from a Jew and sell to a Jew. Now, this doesn’t appear in the halachic codes. The Rema wrote his glosses in the Shulchan Aruch and all that, and didn’t include it there. But in a case that came before him, he did cite it. What was the case? A great Torah scholar—he calls him “the great gaon Maharam Padua”—had printed books of the Rambam. He himself arranged and sold them, and apparently a non-Jew was also involved and competed with him. The Rema then wrote a lengthy responsum saying people should buy from Maharam Padua. He makes several points there. Let’s look at number five. He says: “The third great principle is that in the Midrash Toras Kohanim, Parshas Behar, on ‘When you sell something to your fellow, or buy,’ and so on, the Torah taught: ‘If you come to buy, buy from the hand of your fellow,’ and likewise with selling.” Here he says explicitly that even if the aforementioned gaon were merely an unlearned person, the law would be in his favor. How much more so here. In other words, even if he weren’t a Torah scholar but just an ordinary person who had started some business,

40:32 Speaker 2 and a non-Jew came afterward and started the same business, you should prefer the Jew. All the more so here, where we’re talking about a Torah scholar, and so on. Now let’s ask: Do you have to take a loss for this? Earlier we discussed all the rules of precedence, which apply when things are truly equal; you don’t have to lose anything. What happens here, with a Jew and a non-Jew? Do you have to take a loss or not? The Rema says: “One cannot say that this applies only when the non-Jew and the Jew offer the same terms and price, but when the non-Jew sells for less, one may buy from him in order to profit on the resale. Such claims, too, are nonsense.” He says you can’t say, “I don’t want to lose money.” You are supposed to take a loss in order to prefer the Jew. He brings proofs for this. I won’t go into the first proof. The second is somewhat interesting, so I’ll mention it. The Torah says about an animal that died without shechitah: “Give it to the resident alien within your gates, and he shall eat it, or sell it to a foreigner.” The Torah expresses a preference here: give it as a gift to a resident alien, or, as a second choice, sell it to a non-Jew. In other words, it’s preferable to give it as a gift to a resident alien, who has some connection to you, rather than sell it to a non-Jew.

41:52 Speaker 8 A resident alien.

41:53 Speaker 2 Yes, a resident alien; he isn’t Jewish. All the more so, says the Rema, should you prefer a Jew even when you lose money, since here you’re told to give it as a gift to a resident alien. Now I’ll speak about this very briefly, for two minutes. Later halachic authorities came along and said the following. First, some said this is a Midrash, not practical halachah, because that verse is used for another teaching. They also rejected the Rema’s proofs, and so on. Some authorities wrote that this isn’t the halachah. Many others did cite it as halachah, but said it applies when the price difference is small. For example, with the animal that died without shechitah, the non-Jew knows what it is, so you wouldn’t be able to sell it to him for very much. He knows it’s worth nothing to you, and he’ll buy it cheaply. So you’re expected to take a small loss. But if the difference is large, you aren’t expected to lose a lot. That’s what the halachic authorities say. Another point—let’s look at it here. It’s a mitzvah to give preference even when it involves some effort. Yes? What sort of effort? There’s a lot of discussion about that, but if you can walk a few more steps to buy at a Jewish-owned store, there is reason to make that effort and buy from a Jew rather than a non-Jew, and to bear a small additional expense as well. If the expense is small—

43:08 Speaker 8 A Jew, a Jew. Five agorot [?].

43:09 Speaker 2 Yes, that’s it. The halachic authorities—the [unclear] Sofer says, if it involves effort, [unclear], effort in Torah and mitzvos. Now, I’m talking about a Jew who has abandoned observance; such a person isn’t included in this at all. Seemingly, there’s also a preference for someone who observes Torah and mitzvos. Seemingly—I’m not saying this as a ruling; I haven’t seen it written anywhere.

43:24 Speaker 8 There’s a quote from the Rebbe about packages that were sent to Russia. What did they do? The Rebbe said to give preference to people who had maintained Torah and mitzvos with mesirus nefesh over those who had drifted away.

43:36 Speaker 2 Okay, there’s another comment from the Rebbe on this as well; it’s well known. “It is understood that our representatives arranged to fly El Al wherever possible, in keeping with our Sages’ exposition of the verse, ‘Buy from the hand of your fellow.’” That’s what the Rebbe writes. It’s interesting that El Al doesn’t use this in an advertisement. They could take this letter and make an advertisement out of it. I mean, it’s interesting that El Al doesn’t advertise with this letter, since it apparently mentions them by name.

43:58 Speaker 8 They think that the Rebbe—

43:59 Speaker 2 Right. Seemingly, according to those authorities who say this applies only when the price difference is small, if there’s a large difference, one could buy elsewhere. It’s a dispute among the halachic authorities. One more qualification before we finish: a merchant. Think of someone whose business is buying and selling. His whole profit comes from finding things cheaply and selling them. Now suppose he finds a non-Jew who sells to him cheaply and a Jew who sells to him at a higher price. They didn’t obligate him to buy from the Jew. He may buy from the non-Jew, because that’s how he earns his living. So he is permitted to buy from the non-Jew.