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Is one allowed to lure his competition’s customers away?
By Dayan Shlomo Cohen, Badatz Ahavat Shalom, Yerushalayim
not given up on his song, and remains the Halachic owner as explained above.
The case of the fisherman discussed in the previous article in this series presents a tremendous challenge to the Jewish businessman as far as competition is concerned.
To briefly recap, the Gemara[1] tells us that a fisherman must keep away from another fisherman who has attracted fish around his bait, and is just about to catch them. If he does catch the fish that the other fisherman was about to catch, he is considered as an actual thief and not just as one who has acted immorally.
We explained that opening a new shop next to an existing one is permitted, and cannot be compared to the scenario of the fisherman, even though customers of the existing shop may be taken by the new one, as it is not inevitable that they will buy from the existing shop, as they have free will, and will choose for themselves from whom they wish to buy.
There are however situations that can arise in ever day business where a direct comparison to the case of the fisherman can be made. The Hattam Sofer[2] discusses the case of a customer who is already inside the shop of a competitor, standing in line to pay for his purchase, when another shop owner approaches him and suggests that he return the goods to the shelf and come to his store where he can buy the same merchandise cheaper.
This case would be comparable to the case of the fisherman, and according to the Hattam Sofer, be considered as actual theft. The reason is because in this case, the customer is already ‘inside the net’ of the shop, and it is inevitable that he will complete the purchase[3].
Let’s consider the following scenario, in the light of the above:
Roni’s house and car is insured by the ABC Insurance Company, and he has been a customer of theirs for twenty years. The DFG Insurance Company approached Roni, inquiring how much he pays each year, and what is included in his policy with the ABC Company. They then offered him another package, and tried to persuade him to leave the ABC Company and transfer his business to them.
Is this the same as taking fish out of the net of another fisherman, while his net is still in the water? While the fisherman has made no actual act of acquisition he almost inevitably will. So too, the ABC Insurance Company have not yet attained next year’s business from Roni, but it is almost inevitable that they will. Roni is already in the boundaries of their “net”, and it may be considered as actual theft to aggressively persuade him to leave ABC. This would be tantamount to taking a fish out of the boundaries of the other fisherman’s net while the net is still in the water.
Does this mean that a businessman can never make a pitch for the customer of another?
No, it does not!
All businessmen can certainly advertise their business, as long as the final decision is left to the customer, and the competitor does not ‘sit on him’ until he agrees to move his business from a competitor.
So, very aggressive marketing methods towards the customers of a competitor may be Halachically questionable, and only a more passive marketing campaign, pointing out your good points and leaving the final choice to the customer, would be permitted.
The dividing line is not to be drawn easily and will depend on whether the marketing methods used are similar to removing the fish from the first fisherman’s net while still in the water, and taking a large fish which the first fisherman has tracked down to his hole, and the bait is just waiting for him at the entrance.
Another scenario that should be considered is an everyday occurrence in Jerusalem. The bus company built a central bus station at their own expense. Buses to all over the country leave from there every few minutes.
The bus station attracts travelers from all over the city, who enter the building and wait at the relevant terminal for their bus.
They are now in the ‘net’ of the bus company and it is just a matter of time before they will be ‘caught’ (upon boarding the bus). Were a taxi driver to approach these ‘fish’ (customers) while they are waiting in line, telling them that he has a taxi waiting outside, and will drive them to their destination for the same price as the bus company charges, he may be guilty of actual theft, and not just immoral behavior according to the Hattam Sofer.
The number of scenarios are endless, and much care must be taken in comparing cases to each other.
It is not my intention in these articles to issue Halachic rulings, but simply to raise questions and encourage the reader to examine similar situations which may arise in his business dealings, and discuss the morality of them with his rabbi.
May I conclude by wishing you all ‘good fishing’!
Sources:
[1] Bava Batra 21b
[2] HM 79
[3] This can be compared to the way that Rashi explains the case of the fisherman; that the first fisherman has tracked a large fish to his hole, and has placed bait at the entrance, and is just waiting for the fish to emerge and take his bait. So too, the customer is just about to give his custom to the store owner, and taking it away will be actual theft. It also fits in with the explanation of the “Ri Megash” mentioned in the first article of this series, that the first fisherman has the fish within the boundaries of his net, but the net is still in the water. All that is required is to lift up the net, and the fish are his, so too, I the case of a customer standing in line to pay, he is almost caught already, and to take his custom away would be theft.