June 17, 2024
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June 17, 2024
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Linking Northern and Central NJ, Bronx, Manhattan, Westchester and CT

If the vitality of a Jewish community is measured by the number of kosher establishments within its borders, then the tri-state area (NY/NJ/CT) is thriving. Granted, Covid has stymied the recent surge and has even put some kosher restaurants in danger of closure. Despite the pandemic, however, kosher vendors remain essential to communal happiness. The opening of a new kosher restaurant can be almost as exciting as the birth of a child, marriage of a couple or creation of a new breakaway minyan.

Unfortunately, the addition of a new kosher restaurant is not always without controversy. One issue that sometimes rears its mieskeit head is unfair competition, particularly when a new kosher restaurant opens up within close proximity of another kosher restaurant. For example, can a community support more than one kosher pizza shop, burger joint or steakhouse? This competition quandary also might include a JCC snack bar, senior living cafeteria or gas station convenience store (e.g., Snaxit on Route 4). The competition conundrum, however, probably would not include a school bake-sale, a synagogue kiddush or Shaloch Manos.

If an established kosher restaurant has been faithfully serving the community for many years with fanfare and without incident, then should the community allow a direct competitor moving in across the street, down the block or even on the same avenue? Do we owe our time-honored kosher restaurants a special duty to protect them from aggressive rivals looking to grab their customer base? When it comes to regulating kosher restaurants, do we all of a sudden shift from a free market economy to a fair market economy? Is there such a thing as kosher capitalism? These are critical questions because unfair competition is almost as damaging to the Jewish community as gossip, apathy or non-inclusive Shabbos play-dates.

In the United States, unfair competition is often addressed under antitrust laws, which are designed to promote competition by prohibiting menacing monopolies, domineering duopolies and oppressive oligopolies. Government intervention in this regard is not surprising because even though this country was founded, in part, on certain “laissez-faire” principles, the United States often is described as a mixed economy, with government control over some facets of society. Thus, the United States is not a pure “laissez-faire” economy just like chicken soup with noodles is not a pure broth.

Jewish law also addresses unfair competition. In fact, the Talmud has plenty to say about such un-menschy misconduct, with varying opinions on the subject. For example, Bava Batra 21(a) states in pertinent part: “If one of the inhabitants of an alley establishes a hand mill there, and another one comes to do the same, the law gives the former the right to prevent the latter; for the former may claim: ‘You are cutting off my livelihood.’” There are few things worse than cutting off someone’s livelihood. Nearly as bad would be cutting off someone’s inheritance, annuity payments or access to helicopter-parenting. Sometimes cutting someone off can be a very good thing, like when you (i) cut off the morbidly obese at the smorgasbord, (ii) cut off the world’s most annoying chazzan mid-musaf or (iii) cut off your overly-judgmental Jewish parents before they offer unsolicited advice to anyone within earshot.

The Talmud also discusses a situation involving competing fishermen and how close one fisherman may place his fish traps in relation to the fish traps of his competitor: “One must distance fish traps… from other fish traps… the distance from which the fish will travel… And how much is this distance? Rabba bar Rav Huna says: Up to a parasang [approximately 2.5 miles].” This indicates that one must distance himself from the place where another has established his business. The “parasang” rule, however, does not neatly apply to kosher-eating communities which tend to lean on economies of agglomeration. In fact, it is not uncommon for two kosher pizza parlors to be located right across the street from one another. Consumers usually choose their favorite based on a number of factors including cheese, sauce, crust and how long the line is.

Not everyone agrees with the fish trap analogy but many agree with the broader territorial concept. The Talmud, however, recognizes a distinction between a newcomer and a local: “But one cannot compel his neighbor, i.e., one who already lives in the alleyway, to refrain from practicing a particular occupation there.” This could explain why Machane Yehuda has multiple vendors selling identical products within a few stalls of each other.

Final thought: The phrase “healthy competition” can be as oxymoronic as “act natural.”

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