April 17, 2020 2:13 am at 2:13 am #1849861
Since the commenting system is still malfunctioning, I will comment on the article here.
It seems to me that the machlokes can only be about a private business. But a company (even a privately held company) has its own metzius, and if the whole company has been sold then it can continue doing business on Pesach as normal, because it now owned by a nochri.April 17, 2020 7:55 am at 7:55 am #1849923
How are you making a halachic distinction between a “private business” and a “privately held company”?April 17, 2020 12:44 pm at 12:44 pm #1849965
They are very different. A company is a corporate entity. It doesn’t matter whether there are many shareholders or only a few, or even only one, it has it’s own existence, and when it is sold it is sold.
A private business means there is no corporate entity, there is only the Jewish proprietor doing business in his own name. Before Pesach he sold not the business but only the chometz inventory. Therefore if you think his continuing to sell that same inventory invalidates the sale, then you would be machmir.
But if he sold the whole business then he was not selling the inventory on Pesach, the business was, and it was always clear that that was going to happen. There was no pretense that it wouldn’t, nobody even asked him that it shouldn’t. Even if he personally stood behind the counter selling the business’s chometz, he was doing so as the company’s employee, which is perfectly muttar even lechatchila. So there’s no reason to raise any concerns about the sale.April 17, 2020 1:32 pm at 1:32 pm #1850012
Milhouse: I’m aware of the (secular) legal difference; I questioned your basis for making a halachic distinction. Where in Halacha do you see recognizing the existence of a corporation, especially one with sole ownership?April 17, 2020 4:23 pm at 4:23 pm #1850040IvduEsHashemBsimchaParticipant
I heard from Rav Schachter that in regards to tevilas keilim, he holds that a corporation is a halachically recognized entity, but Rav Moshe Feinstein felt that there was no such concept. That was in regards to making a bracha on a kli bought from a corporation, not sure if it’s dorectly applicable here.April 19, 2020 1:01 am at 1:01 am #1850302
Joseph, the first and easy answer is that in dinei momonos the rule is that dina demalchusa defines ownership. If the malchusa has created the corporate entity, halacha recognises it for the same purposes.
The second answer is that we have a corporate concept in halacha too, i.e. a tzibur. A tzibur owns property, and we say Tzibur eino meis, i.e. it has continuous existence even as its individual members join and leave.
But here it’s even simpler. It doesn’t matter whether we regard the company as if it were a person. What matters is what is in the minds of the buyer and seller. There is a difference whether I am selling the inventory or the entire business. Even an unincorporated business would have the same din; if I sell the business as a going concern, then I am selling everything. If I continue working in the store, I am obviously doing so as the new owner’s employee.April 19, 2020 1:53 am at 1:53 am #1850326
Milhouse: Your last description about it depending on the minds of the buyer/seller would mean there’s no halachic distinction between a private business and a privately held company, your original point in the OP.
Regarding your first answer (in your last post), are you positing that we halachicly disregard Choshen Mishpat in favor of dina d’malchusa?
Regarding your second answer, the tzibur comparison is obviously inapplicable to a corporate entity with sole ownership. As such you cannot extrapolate from it to corporations in halacha, in general.April 19, 2020 8:22 am at 8:22 am #1850378charliehallParticipant
Where in Chosen Mishpat is a corporation defined?April 19, 2020 8:23 am at 8:23 am #1850346
Joseph, the difference between a corporation and a private person doing business is that when a private person sells, he generally doesn’t sell the business, because there is no “business” to sell. The business is him. Rather, he sells the inventory. Whereas if it’s a corporation he sells the shares, and the corporation can go on doing business as before.
And yes, as far as I know dina demalchusa, just like minhag hatagorim, almost always overrides Choshen Mishpat. (Indeed the whole koach of dina demalchusa seems to be because it is a strong minhag hatagorim.)April 19, 2020 8:24 am at 8:24 am #1850347
As for the second answer, how do you know that one can’t, in principle, have a “tzibur” of just one? What if the Jewish community in a town dwindles to one person? Does he in his private capacity become the sole owner of its property?! Or does it still belong to the tzibur, and if a second Jew moves in he will automatically get a 50% share?April 19, 2020 2:27 pm at 2:27 pm #1850446
Charliehall, as far as I know it is never formally defined, it is just assumed as a given. See in particular the halachos on the ownership of shuls.April 19, 2020 2:30 pm at 2:30 pm #1850469
Milhouse: The difference you describe between a corporation and a private person doing business, from an exclusively halachic perspective, doesn’t necessitate a corporation. An individual doing business as a sole proprietor can also halachicly effect the same full sale to a non-Jew of his sole proprietorship business, customer list, place of business and all.
As far as dina d’maclchisa are you implying that, say, a yerusha would be governed by New York State law rather than hilchos yerusha in Shulchan Aruch? Or if two Yidden have a financial dispute in Beis Din the Dayanim will pull out New York State law books and rule in accordance with secular law even though Halacha and Shulchan Aruch clearly describe the particular dispute these two Jews are having and clearly rules one way — which is the opposite of secular law? Or that if someone damages anothers property they amount due and even whether he’s liable for anything is determined by gentile laws rather than based on how Halacha says?
Your “tzibur of one” description doesn’t shtim. And, yes, I would certainly say that if a second person joins a tzibur, the tzibur property doesn’t remain belonging to the last person standing prior to the new member even if he was the only member for a period of time. Even while he was the sole member I don’t believe he could disburse of tzibur property for personal benefit.April 19, 2020 7:32 pm at 7:32 pm #1850576
1. If there’s no corporation then what is the “business” that he is selling? That is the distinction I was making in the original comment. Even if there’s no corporation on paper, he may be treating it as if it were a corporation, in which case it would be the same thing. But generally if it is set up that way then he will have a corporation; if he doesn’t then he isn’t running it that way.
2. Yerusha is different, because it’s not really momonos. There’s a specific mitzvah involved. Still, even there I believe that if a person left no will and dina demalchusa now says so much of the estate belongs to Reuven and so much to Sarah, then that is dina. We can say that after the yerusha al pi torah was chal, then the dina malchusa rearranged it and that is the final disposition.
But certainly in other financial topics, yes, a beis din must determine what the dina demalchusa is, and pasken accordingly, unless the parties specifically agree to be judged by Choshen Mishpot instead, which dina demalchusa allows.
On the “tzibur of one” you just agreed with me. When a second Jew moves into town he is automatically a 50% owner of everything that belongs to the tzibur. That proves that the tzibur has its own existence, and is not simply its current members. Because if it were simply its members then when it was down to one he inherited everything, so how could the new person be entitled to anything? How can the first person suddenly lose half of the assets without his consent? That proves that the assets were never his, they were the tzibur’s, i.e. the tzibur, even with only one member, remained a corporate entity and was not subsumed into his personal rechush. A privately held corporation would therefore have the same din. It’s a separate entity from its sole shareholder, and when he sells the shares it is now the new owner’s.April 21, 2020 8:11 pm at 8:11 pm #1851612
Milhouse: I don’t believe you to be correct regarding your points vis-a-vis dina d’malchusa taking preeminence and overriding how Halacha rules monetary disputes and situations are to be resolved. See Choshen Mishpat 26:1. And minhag hatagorim I believe applies to parties who participated in an agreed transaction; not to every monetary issue or dispute such as, for example, someone damaging property of someone else who he has no financial or business relationship with.
What you seem to be suggesting is that we can basically throw out Choshen Mishpat, lock stock and barrel, and simply always use the lawbooks of the local gentile state with never a need for what Choshen Mishpat rules on given scenarios.
I’m also not convinced you can extrapolate from a tzibbur to a corporation, even if they bear some similarities.April 22, 2020 3:00 am at 3:00 am #1851685
Joseph, I don’t see how CM 26:1 is relevant. It says nothing about which laws a beis din should apply. It’s entirely about who should judge cases between Jews. A Jew seeking justice from another Jew must go to Beis Din. But I believe the Beis Din must rule according to local law, and if they don’t know what that is they must take advice or hear expert testimony, just as they do to determine any fact. See Shach 165:8. And there’s another long Shach somewhere on this, but I couldn’t find it at the moment.
However I’m curious. If this is not your understanding, then what do you think “Dina Demalchusa Dina” means? It doesn’t mean, as many mistakenly think, that one must obey the law. If you look at every instance where this memra of Shmuel is cited in the gemara, you will see that it is always talking, not about what one may or may not do, but about the ownership of property. And the very word “Dina” doesn’t mean “halacha”, it means “judgement”, as in “Psak Din”.
It seems clear to me that Dina Demalchusa Dina means that when the state’s laws say Reuven owns this piece of property and Shimon doesn’t, then that is the correct judgment, and a Beis Din must rule accordingly. And the reason it is so is because that is the basis on which people transact business. For instance when one lends to a limited liability corporation one knows that one cannot recover from the shareholders. And Minhag Hatagorim is another example of the same thing; it’s binding because it’s the basis on which one does business. It’s a tnai, and the rule is Kol Tnai Shebemomon Kayom.April 28, 2020 7:40 am at 7:40 am #1854153n0mesorahParticipant
OIY! There is a specific mitzvah for almost every aspect of choshen mishpat! Dina D’malchusa does not define the concept of ownership. If we accept the idea of a corporation, then the inventory is not owned by any person. Because, who would make the kinyan?April 28, 2020 4:19 pm at 4:19 pm #1854521
n0m, ownership is exactly what Dina Demalchusa does define. Every single time this memra is cited, it is for that exact purpose. If you disagree then tell me what you think Dina Demalchusa Dina does mean, and what makes you think so.
A corporation is an abstraction of its shareholders. And a corporation has officers who are entitled to make kinyanim on its behalf. Who do you think makes kinyanim for any tzibur, or for a kupas tzedaka, or for a hekdesh? Bizman Habayis, who made kinyanim for the Beis Hamikdosh?April 28, 2020 5:31 pm at 5:31 pm #1854578
Dina D’malchusa primarily relates to the relationship between a Yid and his local government, such as in matters of taxation; and not in matters between a Yid and another Yid.April 28, 2020 7:22 pm at 7:22 pm #1854593n0mesorahParticipant
Like Joseph said, the gemara applies it to the government. It could be your thinking of the law of holding onto documents for 40 years to prove ownership. I think that is a governmental law, because it only applies to real estate, which was the essence of taxes then. Even if you are correct, you stated that the officers of the corporation, would have to do a kinyan. So, who owns the inventory?
I wish we could go through each part at length, but that is not likely to happen. I only commented, because I thought it was being said that a corporation, owns the inventory because dina demalchusa.April 28, 2020 9:26 pm at 9:26 pm #1854651KGNParticipant
7-11 isn’t owned by a Yid.
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