HASSAGAT GEVUL (Heb. הָסַּגַת גְּבוּל), a concept which originally had specific reference to the unlawful taking of another's land; later it was extended to embrace encroachment on various economic, commercial, and incorporeal rights of others.
Encroachment on Land
The original meaning of the term hassagat gevul was the moving (cf. nasogu aḥor, Isa. 42:17) of boundary stones or other landmarks from their resting places into the bounds of another's adjoining area of land, for the purpose of annexing a portion of the latter to one's own land. Naḥmanides' comment on the passage, "Thou shalt not remove thy neighbor's landmark, which they of old time have set, in thine inheritance which thou shalt inherit in the land that the Lord thy God giveth thee to possess it" (Deut. 19:14), is that Scripture speaks here "in terms of the present," i.e., of the usual situation, since it is common for landmark removal to take place in respect of ancient landmarks set up "of old time" which are not generally known and familiar. The prohibition against removal of the landmark is repeated in the enumeration of curses for recital on Mount Ebal (Deut. 27:17). The exact marking of land boundaries was already emphasized in patriarchal times, as may be gathered from the description of the field in *Machpelah bought by Abraham from Ephron the Hittite (Gen. 23:17), and this was also the case in other countries of the ancient East. Many boundary stones, engraved with invocations and curses against their removal, have been found in ancient Babylonia.
Removal of the landmark is exhorted against and castigated in the books of the prophets and the hagiographa (Hos. 5:10; Prov. 22:28, 23:10). In Proverbs too the reference is to the "present" and usual situation, namely removal of ancient landmarks set by earlier generations. In the Book of Hosea the castigation is directed against the princes, the strong, and in Proverbs it is hinted that the weak, the fatherless, were the main sufferers. In Job too removal of the landmark is mentioned among other injustices perpetrated on orphans, widows, and the poor (24:2–4).
IN THE TALMUD
In the talmudic period the abovementioned passage from Deuteronomy 19:14 was given a literal interpretation and the special prohibition against landmark removal was held to be applicable to land in Ereẓ Israel only. The fact that the enjoinder, "Thou shalt not remove the landmark," appears after it is already stated that "Thou shalt notrob," was held to teach that anyone who uproots his neighbor's boundaries breaks two prohibitions, robbery and removal of the landmark, but that this was the case in Ereẓ Israel only, since it is written "… in thine inheritance which thou shalt inherit in the land…" (ibid.), and outside Ereẓ Israel only one prohibition (robbery) is transgressed (Sif. Deut. 188). The halakhah was likewise determined in later times (Maim. Yad, Genevah 7:11; Sh. Ar., ḤM 376:1).
Land robbery, even outside Ereẓ Israel, has been regarded with great severity in Jewish law. The Talmud speaks of persons specially engaged in land measuring and the fixing of precise boundaries; surveyors are specifically instructed to make accurate calculations – down to the last fingerbreadth – and not to measure for one in summer and for the other in winter, since the measuring cord shrinks in summer (and expands in winter; BM 107b and Rashi ibid.; 61b; BB 89a; Maim. Yad, Genevah 8:1–3; Sh. Ar., ḤM 231:16–18).
IN THE CODES
It is explained that the general distinction made in Jewish law between genevah and gezelah (see *Theft and Robbery) – the former taking unlawfully by stealth and the latter openly with violence – applies also to the matter of trespass on land: "A person who removes his neighbor's landmark and encloses within his own domain even as much as a fingerbreadth from his neighbor's domain is a robber if he does so with violence and a thief if he does so stealthily" (Yad, Genevah 7: 11; Sh. Ar., ḤM 376; from the Semag, Lavin, 153 it also appears that this was understood to be the version of Sif. Deut. 188). The opinion was expressed by some of the posekim that the prohibition against robbery or theft – in relation to trespass on land – forms part of the de-rabbanan (Oral Law) and not the de-oraita (Written Law) law, since land is never stolen but always remains in its owner's possession; this opinion is however contrary to the plain meaning of the abovementioned statements in Sifrei (Tur, ḤM 371:10, 376; Perishah, ibid., Sma. to YD 371:2).
The great severity with which trespass on land has been regarded in Jewish law is illustrated in a responsum of Solomon b. Abraham *Adret (Rashba) concerning the following matter: "A person trespassed and built a wall within his neighbor's yard, thereby appropriating therefrom a cubit of land to his own, and then built a big house supported on this wall; now the owner of the yard comes to demolish the other's whole building." Asked whether in terms of the takkanat hashavim ("takkanah of restitution," see *Theft and Robbery) the trespasser might pay for the value of the land taken without having to demolish the building in order to restore the land to its owner, Rashba replied in the negative: "The takkanat ha-shavim was instituted in respect of movable property only, and in respect of land it was not stated that he [the injured party] should sell his property and break up his inheritance" (Resp. vol. 3, no. 188).
Widening of the Concept
The first manifestations of a widening in the doctrine of hassagat gevul are traceable back to talmudic times, when various halakhot were derived from the doctrine by way of *asmakhta. Thus the doctrine was cited in support of the prohibition against withholding from the poor (all or anyone of them) their gleanings from the produce of the field (Pe'ah 5:6; on the meaning of the term olim and al tasseg gevul olim, see Albeck, Mishnah, ibid.). The prohibition against hassagat gevul was similarly invoked to lend a quasi-legal recognition to an individual's right (copyright) in respect of his own spiritual or intellectual creations: "Whence can it be said of one who interchanges the statements of Eliezer with those of Joshua and vice versa, so as to say of pure that it is unclean and of unclean that it is pure, that he transgresses a prohibition? It is taught: 'you shall not remove your neighbor's landmark'" (Sif. Deut. 188). Even the prohibition against marrying a pregnant woman or one weaning a child (i.e., by another man, for reasons of the possible threat to the welfare of the embryo or child), is supported by the doctrine of hassagat gevul (Tosef. Nid. 2:7; see also Mid. Tan., Deut. 19: 14; Comm. R. Hillel, Sif. Deut. 188).
Trespass on Economic, Commercial, and Incorporeal Rights
Post-talmudic economic and social developments fostered the need to give legal recognition and protection to rights which had not become crystallized within any accepted legal framework during the talmudic period. Some of these rights found legal expression and protection through an extension of the prohibition against landmark removal, so as to embrace also encroachment on another's economic, commercial, and spiritual confines.
Jewish places of settlement in the Middle Ages were restricted – at times voluntarily, at other times by force – to particular streets or quarters. Hence the demand by Jews for dwellings in these particular places frequently exceeded the available supply, and sometimes a prospective Jewish tenant would offer a landlord a higher than customary rental in order to have the existing tenant evicted, the more so since the halakhah excluded neither an offer to pay a high
In a 13th-century takkanah of the community of Crete (Candia) it was laid down that: "A person shall not encroach on his neighbor's boundaries by evicting him from his home… from today onward no Jew shall be permitted… to offer an excessive payment or rental to any landlord in order to gain occupation of his house… and thereby cause him to evict the existing Jewish tenant, for this is a transgression against 'cursed be he that removes his neighbor'ss landmark,'" not only was the offender to be fined, but the takkanah also prohibited anyone to hire the house in question for a full year from the date of its being vacated (Takkanot Kandyah, ed. Mekiẓe Nirdamim, p. 16). Similar takkanot were customary in different Jewish centers during the Middle Ages (see, e.g., Ferrara takkanot of 1554, in: Finkelstein, Middle Ages 93f., 302, 305).
TRESPASS IN MATTERS OF COMMERCE AND THE CRAFTS
In tannaitic times the opinions of most sages inclined in favor of free commercial and occupational competition (BM 4: 12, 60a–b; BB 21b). In the third century C.E., moral censure of someone setting up in competition with a fellow-artisan was expressed by some of the Palestinian amoraim, although without any legal sanction (Kid. 59a; Mak. 24a; Sanh. 81a). In the same century, in Babylonia, *Huna laid down the legal principle that a resident of a particular alley operating a handmill could stop a fellow-resident from setting up in competition next to him, because this involved an interference with his source of livelihood (BB 21b). This view was not, however, accepted as halakhah, and at the end of the fourth century it was decided by Huna b. Joshua that one craftsman could not restrain a fellow craftsman and resident of the same alley from setting up business (in the same alley), nor even the resident of another town from setting up in the same town, as long as the latter paid taxes to the town in which he sought to ply his craft (BB 21b). Even so, however, there was no definition of the legal nature and substance of even this limited right of restraint, nor was it enforced by any sanctions upon infringement, such as the payment of compensation.
With the restriction of Jewish sources of livelihood in the Middle Ages, and the resulting intensified competition, the whole question once more came to the fore. A Jew who with much effort and money had succeeded in acquiring a monopoly in a particular commercial field stood to lose his investment and livelihood through the competition of a fellow-Jew. From the tenth century onward, the question of a right of monopoly, its scope and sanctions, came to be widely discussed in the literature of the responsa and the codes. This discussion took in the ma'arufyah (a form of private monopoly) takkanah, which prohibited encroachment on the ma'arufyah of a fellow-Jew (Or Zaru'a, BM 10a, no. 28). Legally, the ma'arufyah right was a full-fledged right, capable of being sold (Resp. Ge'onim Kadmoniyyim 151) and was even discussed in relation to whether it passed on inheritance (Resp. Ḥakhmei Ẓarefat va-Loter 87). The law of the ma'arufyah was not free of dispute, and as late as the 16th century Solomon *Luria differed thereon in a number of material respects (Resp. Maharshal, 35, 36; Yam shel Shelomo, Kid. 3:2); yet he too recognized extension of the doctrine of hassagat gevul to include a prohibition against infringement of another's livelihood, and the majority of the posekim accepted the overall law of the ma'arufyah (Sh. Ar., ḤM 156:5 and standard commentaries; Ir Shushan, ḤM 156:5; She'erit Yosef 17).
Various takkanot have come down concerning the restriction of competition, particularly with reference to the acquisition of a right of lease or concession. In medieval times, particularly in Poland, a substantial proportion of the tax-collection concessions granted in respect of the wine trade, mints, border-customs, salt-mines, distilleries and saloons, etc., were concentrated in the hands of Jews, and various takkanot were enacted to restrict the competition in this field that had led to higher rentals and reduced profits (Halpern, Pinkas, 11f.; Pinkas Medinat Lita, nos. 46, 73, 87, 104; Resp. Bah., Yeshanot 60; Masot Binyamin 27; Resp. Maharam of Lublin 62; Takkanot Medinat Mehrin, p. 86, no. 259; Ḥavvot Ya'ir, 42).
Setting up in competition with a fellow-artisan or professional was similarly restricted in various fields. Thus a melammed ("teacher") was prohibited from encroaching on a colleague's confines by taking one of the latter's pupils into his own ḥeder (Takk. Cracow of 1551 and 1638, quoted by P.H. Wettstein, in: Oẓar ha-Sifrut, 4 (1892), 580 (second pagination) and it was likewise decided with reference to ritual slaughterers (Ba'ei Ḥayyei, ḤM pt. 2, 80; Naḥalah li-Yhoshu'a, 29; Mishpat Ẓedek, vol. 3, no. 14), the offender in this case being regarded as a robber who could be deprived of the remuneration received for such sheḥitah (Resp. Divrei Ḥayyim, pt. 2, YD 20) which might possibly even be declared ritually unfit (Resp. Shneur Zalman of Lyady, 9; see also Meshullam Roth, Kol Mavasser, pt. 1, no. 17).
An interesting development in this field is related to the office of rabbi. As late as the 15th century, it was decided by Israel *Isserlein and Jacob *Weil that a scholar holding the office of rabbi in a particular town could not restrain another from holding a similar office there, even though the latter would interfere with the former's prospects of earning remuneration in return for services such as arranging weddings, divorces, and the like. This decision was based on the reasoning that accepting a remuneration for such services was essentially contrary to the halakhah and its permissibility was not easily justifiable, and therefore it could hardly be recognized as an occupation or source of livelihood to be protected from
The legal basis for the restriction of competition, with imposition of sanctions, was found in an extension of the legal doctrine of hassagat gevul to include encroachment on the confines of another's trade and source of livelihood. An interesting insight into the manner in which the said extension was arrived at is offered in the method of interpretation adopted by Solomon *Luria (despite his advocacy of greater freedom of competition). In the case of a person ousted by his neighbor from a concession to a customs post, Luria reasoned that the defendant might be held liable for the pecuniary loss suffered by the other party even though it was decided law that there is no liability for *gerama (a form of indirect damage) in tort. Luria relied on Roke'ah's statement that anyone interfering with another's source of livelihood falls within the enjoinder, "Cursed is he who removes his neighbor's landmark," a statement Luria explained on the basis that this passage seemed to be redundant in the light of the prior scriptural injunction, "You shall not remove your neighbor's landmark," unless it was accepted that this passage related to trespass in the field of bargaining. Luria's decision accordingly was that the customs post be restored to the first concessionary without cost, or the defendant compensate him for the damage caused (Resp. Maharshal 89). Other scholars regarded trespass on a neighbor's trading interests as an integral part of the prohibition against trespass on another's right of tenancy (see Resp. Maharam of Padua 41).
The first hints at recognition in Jewish law of the ownership of incorporeal property were given as early as tannaitic times. Thus it was stated, "a person who eavesdrops on his neighbor to reproduce his teachings, even though he is called a thief, acquires for himself" (Tosef., BK 7:13), and support for the prohibition against interchanging one scholar's statements with another's was found (Sif. Deut. 188) in the passage, "Thou shalt not remove thy neighbor's landmark." At the end of the 12th century the same passage was quoted by Judah he-Ḥasid in warning an heir against complying with a direction in the will of his deceased father to inscribe the latter's name as the author of a book, even though it was known to have been written by someone else (Sefer ha-Ḥasidim, ed. Mekize Nirdamim, nos. 17–32). It was nevertheless only from the 16th century onward that copyright became a defined legal right, protected by sanctions and partially based on the extended doctrine of hassagat gevul.
As in other legal systems, this development arose from the spread of printing and a need for the protection of printers' rights. As early as 1518 an approbation (haskamah) to the Sefer ha-Bahur of Elijah *Levita contained a warning, on pain of ban, against anyone reprinting the book within the following 10 years. In the mid-15th century, when Meir *Katzenellenbogen complained to Moses Isserles about the appearance of a rival edition of Maimonides' Mishneh Torah (shortly after his work had been printed by Katzenellenbogen), Isserles responded by imposing a ban on anyone purchasing the Mishneh Torah from Katzenellenbogen's competitor (Resp. Rema 10). Thereafter it became customary to preface books with approbations containing a warning against trespass in the form of any unauthorized reprint of the particular book within a specified period. Halakhic literature contains detailed discussions on various aspects of encroachment on printers' rights. Thus Isserles imposed his abovementioned ban on anyone purchasing the Mishneh Torah, because in that instance it would not have availed against the printer, a non-Jew. Other scholars held the opinion that the ban should be imposed, not on the purchasers of the book – as this would cause study of the Torah to be neglected – but on the printer instead, except if he be a non-Jew (Zikhron Yosef, ḤM 2; Resp. Ḥatam Sofer, ḤM 89). Unlike Isserles, who confined the operation of his ban (to purchasers) within the country concerned only, other scholars extended operation of the ban to printers everywhere (Resp. Hatam Sofer, ḤM 41 and 79). In most cases the period of the prohibition varied from three to 15 years, but was sometimes imposed for as long as 25 years. Some of the scholars held that a prohibition imposed against trespass on a printing right takes effect from the date of the approbation in which it has been formulated, but other scholars held the prohibition to come into effect upon commencement of the printing (Halpern, Pinkas 486; Resp. Shem Aryeh, ḤM, 20; Mayim Ḥayyim, YD 44; Resp. Sho'el u-Meshiv, pt. 1, no. 44).
The above prohibition was mainly justified on grounds of the printer's need for an opportunity to recover his heavy outlay through the subsequent sale of the printed product, since reluctance to undertake any printing in the absence of such protection was likely to send up the price of books and cause study of the Torah to be neglected by the public. In this regard there was a fundamental difference of opinion among scholars concerning the fate of the prohibition once the printer
Out of this discussion grew the recognition given, in later generations, of the existence in Jewish law of a full legal right in respect of one's own spiritual creation. Thus Joseph Saul *Nathanson, rabbi of Lvov, distinguished between printing the work of others, e.g., the Talmud, and printing one's own work, stating that in the latter event "it is clear that he has the right thereto for all time… for with regard to his own [work] a person is entitled to decree that it shall never be printed without his permission or authority… and this right avails him against the world at large" (Sho'el u-Meshiv, pt. 1, no. 44). In support of this opinion, Nathanson had reference to the copyright offered the patent-holder of an invention under general Polish law, adding that the effect of an author's restriction against any reprint of his work within a specified period was not to prohibit what would otherwise be permissible, but, on the contrary, to authorize others to reprint his work upon expiry of the period specified because "even if no express restriction is imposed… this remains prohibited as hassagat gevul by the law of the Torah" (ibid.). A similar view was expressed by Naphtali Ẓevi Judah *Berlin concerning the individual's right in respect of his own teachings; he held that the individual might treat these as he would his own property – save for its total destruction, because it was a mitzvah to study and to teach others (Meshiv Davar, pt. 1, no. 24).
This view was not, however, generally accepted by the halakhic scholars. Thus Isaac *Schmelkes saw no reason why others might not reprint a book – even if first printed by the author himself – once the original edition had been completely sold; "everyone retains the right to study and to teach… why should another not be able to benefit his fellow men and print and sell cheaply?" (Beit Yiẓḥak, YD, pt. 2x no. 75). In his opinion Nathanson's analogy of a patent-right offered no real support for the correctness of his view, since in that case the perpetuity of the right derived from royal charter, without which others might freely copy the inventor's model, and furthermore, a work relating to the Torah was to be distinguished from any other work of the spirit inasmuch as "the Torah was given to all free of charge… not to be used with a view to gaining remuneration" (ibid.). At the same time Schmelkes conceded the validity of a restriction imposed against reprint of a book within a specified period, not as a matter of halakhah, but in pursuance of the general law of the land, by virtue of the rule of *dina de-malkhuta dina ("the law of the land is law").
The doctrine of hassagat gevul strikingly illustrates one of the paths for the development of Jewish law, namely extension of the content of a legal principle beyond its original confines, in a search for solutions to problems arising through changes in social and economic conditions.
Hassagat Gevul (Trespass) in the Publishing of Manuscripts
The Jerusalem Rabbinical court (5715 / 861, PDR I 276) heard a case involving a claim of hassagat gevul by a person who engaged in the business of publishing manuscripts and who had published R. Isaiah di-Trani's commentary on various books of the Bible. As he was about to publish di Trani's commentary on other books of the Bible, it was brought to his attention that another person intended to publish the same manuscript with the commentary on those books. He therefore petitioned the court for an injunction to prevent him from doing so, on the grounds that he had already given public notification of his intention to publish the commentary on those additional works, and hence it was a case of trespass.
The court discussed various aspects of the limits of business competition (see *Business Ethics) and, at the end of its decision, cited R. Hayyim Halberstam of Zanz (Resp. Divrei Hayyim, ḤM 56), who states that the custom of prohibiting the purchase of books from any printer who encroached on the rights of another printer "was based on the words of the geonim who preceded us," and was conditional upon a significant rabbinical figure having agreed to the publication by the first printer. He added that this prohibition had acquired the status of a custom (minhag), and was therefore valid even if it was contrary to the laws of the Torah.
The court ruled that there was no difference in this regard between a person who had invested funds in the printing of books and one who had invested resources in the preparation of manuscripts for printing. However, in the case in question, the plaintiff, i.e., the first printer, had not only failed to obtain an approbation from a rabbinical authority warning anyone against encroaching on his rights in this work but, according to the court, had not even given due notice of the fact that he was about to publish the commentary on the other books as well. Moreover, the defendant had not used the original invention of the plaintiff or his work, and therefore should not be forbidden to publish the commentary on those books.
Trespass by Infringement on a Monopoly
In the Atlantic case (CA 6126/92 Atlantic v. Doug Frost, PD 50(4) 471), the Supreme Court of the State of Israel relied on the prohibition against hassagat gevul in the context of encroachment upon commercial competition. A fishing company, which for many years had been the only entity operating in a particular part of the fishing sector, had gone bankrupt. This collapse was the result of competition from another company that had begun operating in the same line of business.
The Law in the State of Israel
The Copyright Act (1911) and the Copyright Ordinance (1924), both of which originated in ordinances from the time of the British Mandate, determine the scope of the prohibition against publication and reproduction of works, including translating, processing, recording or copying such works, and the remedies – both civil and criminal – available for a breach of copyright.
The Performers' Rights Law 5744 – 1984 determines the entitlement of an artist performing artistic, literary, dramatic or musical works, not to have copies made of his performances without his consent, and his right to royalties for the use of his works.
LEGAL PROTECTION OF "MORAL RIGHTS" IN THE STATE OF ISRAEL
In a 1981 amendment, the Copyright Ordinance (1924) was amended, and section 4A was added, bearing the title "Moral Rights." This section established an author's right to have his name applied to his works and to object to any modification to his works liable to prejudice his honor or reputation. A violation of this right constitutes a civil wrong, according to Israeli torts law (see *Torts). The explanation of the draft bill states that
In a similar vein, in the Qimron case the Supreme Court addressed the Jewish legal perspective on the protection of copyright and intellectual property (CA 2790/93 Eisenman v. Qimron, PD 54(3) 817). A U.S. researcher published, without permission, parts of a study conducted by an Israeli scholar, who had devoted 11 years to reconstructing fragments of a scroll from the Second Temple period found in the Qumran caves. The court (Justice Y. Turkel) stated that "The roots of this important principle also derive from Jewish legal sources, which emphasizes the magnitude of the sin of a person who fails to report statements in the name of those who made them." Justice Turkel cites the words of R. Isaiah ha-Levi Horowitz, who states: "It is a great principle to report sayings in the name of those who said them, and not to steal sayings from those who said them, for such theft is worse than stealing money… How great, in my eyes, is the sin of a person who cites an interpretation that has been published in a book, or which he has heard, and fails to mention the name of the original maker or writer of the interpretation" (Shnei Luḥot ha-Brit, Shavuot, 183:2).
Regarding encroachment on the business and commercial rights of others, see *Business Ethics.
[Menachem Elon (2nd ed.)]
Gulak, Yesodei, 1 (1922), 172–5; Gulak, Oẓar, 355, 359f.; S. Funk, in: JJLG, 18 (1927), 289–304; Z. Markon, in: Ha-Mishpat, 2 (1927), 192–201; Herzog, Instit, 1 (1936), 127–36; L. Rabinowitz, Ḥerem Hayyishub (Eng., 1945), 122–6; Z. Falk, Ha-Kinyanha-Ruḥani be-Dinei Yisrael (1947); E. Rivlin, in: Emet le-Ya'akov… Freimann (1937), 149–62; F. Baer, in: Zion, 15 (1949/50), 35f.; ET, 9 (1959), 542–6; J. Katz, Tradition and Crisis (1961), 59f. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:66, 329f, 553, 555, 653; 3:1420; idem, ibid., Jewish Law (1994), 1:74, 394f.; 2:673, 674f, 808; 4:1691; idem, M. Elon, "Profiteering and Overreaching in Jewish Law," in:, Maḥanayim, 2 (5752), 8–19 (Heb.); N. Rakover, Copyright in Jewish Sources (Heb., 1991); A. Sheinfeld, "Torts," in: N. Ravkover (ed.), Ḥok le-Yisrael (Heb., 1991/92), 143–54; A. Hacohen, Law and Economics in the Responsa Literature (Heb.), 62–77.
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