THE COMPETING GENTILE UNDERTAKER
In our city there is a Jewish undertaker. His work is satisfactory. He will also bury hardship cases free of charge. He claims that the prices which he charges are just about enough to keep him solvent. But now a congregation in a neighboring town has made an arrangement with a Gentile undertaker in their own town. This undertaker charges considerably less than the Jewish undertaker in our city, who now claims that the out-of-town congregation is engaging in (or organizing) unfair competition against him. What is Jewish law and tradition on this matter that should guide our congregation in its recommendation to its members’? (Asked by Rabbi Leigh D. Lerner, St. Paul, Minnesota.)
THERE IS considerable Jewish law on the matter of fair and unfair competition. In tractate Baba Basra 21b ff., there is the question of whether one man may open a store so close to another man’s store as to hurt his business. The discussion then develops on questions of fair and unfair competition. In general these questions find the weight of the law to be against limiting competition, i.e., in favor of free trade.
But all this discussion involves competition in the same city or neighborhood. In the question asked here, we do not have competition in the same city. The competing Gentile undertaker is in another city. Nevertheless, since he attracts patrons from the larger city and away from the local Jewish undertaker, it can be considered as if he is in the same city. And so this involves the moot question of whether merchants from one city may come into another city and compete with the local merchant even if they do not locate their establishments in close proximity to the local merchants (see the references on this question given in Modern Reform Responsa, especially on p. 283).
But in either case the main question here is whether one merchant may cut prices to undersell another merchant. This is a matter of dispute in the Talmud, based on the Mishnah in Baba Metzia 4:12. Rabbi Judah forbids undercutting the price as unfair competition. But the rabbis disagree with Rabbi Judah and say that if the price is thus lowered, all the better. The law is according to the rabbis, and so it is codified in the Shulchan Aruch, Choshen Mishpot 228:18, and also see the end of the note by Isserles in Choshen Mishpot 126:5. So it is clear that according to Jewish law, the fact that one undertaker is lowering the price and hurting the business of the other undertaker is not an act forbidden by Jewish law. There are, however, other important considerations involved here.
First of all, there is the fact that the newly competing undertaker is a Gentile undertaker. If the synagogue in the smaller city had made the arrangement with a Jewish undertaker in their city, then the mere fact of the competition by undercutting of price could not in itself be objected to. But the fact that a Gentile undertaker is involved makes an important difference. It is not that Gentile undertakers may not conduct a Jewish funeral. The law specifically says ( Shulchan Aruch, Orach Chayim 526) that if a man is to be buried on the first day of holidays, non-Jewish workers should take charge of the funeral. But what is it that Gentile workers may do? They may do the work that is forbidden to the Jews on the holiday, namely, the physical tasks of digging the grave and of making the coffin. However, washing the dead (tahara) and clothing the dead, that must be done by Jews (see also Greenwald, Kol Bo, p. 197, par. 39). Yet it must be noted that David ben Zimri in Egypt (a successor of Maimonides) permits the Gentiles to participate with the Jews in the washing of the body on the holiday. (Incidentally, the reference to David ben Zimri in the Sha’ are Teshuvah is incorrect; instead of Part Two, 507, it should be Part One, 507.) Of course, if in the small town referred to there is a group of pious Jewish men and women who attend to the washing and the clothing of the body, there would be less objection to the arrangements discussed in the question. But if there is no such organization devoted to this pious task, then certainly the fact that it is a Gentile undertaker involved would be objectionable, certainly to Orthodox Jews.
There is another element besides the limitation of the functions which a Gentile undertaker may perform. It is of further importance that the established Jewish undertaker will conduct funerals free of charge in hardship cases. This is a traditional Jewish mitzvah that was always carried out in every community by the historic Chevra Kadisha. The Jewish undertaker in America, who for historical reasons has become a successor to the Chevra Kadisha, while indeed he is in business to make a livelihood, nevertheless he also continues the tradition of pious service and will conduct funerals in hardship cases without charge. No Gentile undertaker is under obligation to do this, nor is he likely to do this.
What, then, should be done in this complex situation? The mere fact of competition by lowering the price, especially since it is in another city, cannot, as such, be objected to. But a Jewish undertaker deserves a special status in the Jewish community. He alone, at least as far as Orthodox Jews are concerned, can carry out the intimate handling of the body, and he alone is obligated to do acts of charity, a duty which his profession inherits from the historic Chevra Kadisha. For that reason the community in the large city, while it cannot prohibit anybody from taking advantage of the financial benefits of the competition, nevertheless is obligated to help the Jewish undertaker as much as possible. It must also be borne in mind that the duty of burying the dead is incumbent upon every Israelite and upon every Jewish community. If, therefore, the necessity of burying hardship cases free of charge involves a cost, as it does, then the community is in duty bound to help bear that cost. In fact it does bear that cost by paying somewhat higher prices to the Jewish undertaker. This is an obligation incumbent upon the entire community. Of course, if at some time it becomes possible for the Jewish undertaker to lower his prices to meet the competition, then, as the rabbis say in Baba Metzia, “It is all the better.” But in either case, he deserves the support of the community.