– Author: Rav Bentzi Shor

Among the most pressing questions facing Judaism today is the question of how Halacha adapts to modernity. Not in the sense of passing moral fads, but rather changes in the reality of the world which we inhabit. One such area of dilemma in the poskim is the economy. A global economy, based on credit and corporations, is a relatively new phenomenon, and poses many novel challenges for a Jew attempting to do God’s will in the 21st century.

What is the law regarding a utensil purchased from a corporation rather than a private individual? Is the utensil still considered to be owned by a non-Jew or would we consider it ownerless (as the common law would seem to indicate) for the purposes of tevilat kelim, which would exempt it from tevila? Would it matter if any of the shareholders of the company are Jewish? Indeed, this question is all the more pressing for us today, as the vast majority of the utensils we purchase come from corporations rather than private non-Jews.

What is a Corporation?

A limited-liability corporation is a legal entity that exists in developed countries around the world. Essentially a legal fiction, LLCs effect a separation between the owners of the company and the company itself, such that the owner’s private possessions are not connected to the company and are legally protected from any liability the company may incur. There are certain characteristics of these types of companies which will be relevant for our discussion on their status vis-à-vis the halacha. Firstly, people buy “stocks”, which are essentially pieces of “ownership”, in the company. Controlling ownership of the company itself can be effected by holding the majority of these stocks; however, in some instances shareholders will all be of equal standing. Stockholders, simply by virtue of owning stock, do not gain any rights to the property of the company itself, and are not responsible for the liabilities which the company incurs. A board of management is nominated by the stockholders, and that board hires the day to day managers of the company (CEO, CFO, etc.). The rights of a stockholder may include: Receiving dividends, receiving a portion of the company’s property in the event of its dissolution, voting rights at shareholder meetings, as well as approval of certain management appointments. It is important to note that the rights of shareholders vary to some extent from one company to the next. Once a year, shareholders will hold a meeting where they will vote on various company matters which are within their purview. Profits from such a company are either funneled back into the company to further its development, or delivered to the shareholders in the form of dividends.

In modern law, an LLC is referred to as an independent entity, and as such, one would refer to actions taken by the company, rather than by a particular group of shareholders or managers.

The question which arises is how Halacha would view such a company. Would the actions of the company be attributable in a halachic way to the owners of the stocks, or would the company be considered an independent entity even with Halacha and thus “ownerless”?

Corporations as Ownership

When faced with this question, the poskim approached it from various angles pertaining to particular points within Jewish law, rather than adopting a broader, more systematic definition. This leaves us with the challenge of trying to understand their reasoning and apply it to our case of tevilat kelim.

The Maharam Shick[1] writes about the status of shareholders in a company with relation to the proscription of lending to another Jew with interest. What would be the halacha, asks the Maharam Shick, if one were to enter into a partnership between various Jewish and non-Jewish investors to create a lending company? Would such a company violate the injunction against usury?

In answering this question, the Maharam Shick first attempts to determine the ownership status of one who has no access to the value of one’s possessions. Since the Jew has no access to any money he may have deposited into this lending company, it could be that he is no longer considered the owner. The Maharam Shick writes, however, that this is not the case, proving his contention from a Gemara in Masechet Beitza.[2] Rather, he writes that though one may not have access to his possessions in any practical sense, this does not directly determine his ownership status.

With regards to the lending company, however, things are slightly different. The Maharam Shick  writes that once a person gives his money (or possessions) to the company, he ceases to personally own that money; rather, he is now in possession of a lien on the company for the amount of money (or the possession) which he invested. Essentially, the Maharam Shick explains, the investor becomes a “lender” of money/possessions to the company, and it is this company which now “owns” the money.

In terms of usury, this is especially advantageous to prospective lenders, as the money which is being lent is no longer the possession of any individual, and thus does not violate the prohibition of lending with interest. According to the Maharam Shick then, one can certainly create a “corporation” which exists as a separate entity from the owners themselves, and can even violate Torah laws which the owners themselves cannot.

If we were to apply this reasoning to the mitzvah of tevilat keilim, one could reasonably surmise that, in just the same way that the money in such a partnership is “ownerless” in the sense that it ceases to be attributable to any of the investors, so too would the utensils be considered ownerless, and would thus never have been considered to have been owned by a gentile, exempting them from the mitzvah of tevilat kelim.

The Maharai HaLevi[3] approaches the topic from the discussion of ownership vis-à-vis  chametz on Pesach. He writes that since one who owns shares in a company has no direct ability to affect any of the company’s holdings, one is therefore not required to destroy any of the company’s chametz, and also does not incur the penalty of חמץ שעבר עליו הפסח, by which chametz which was not disposed of properly before Pesach is rendered forbidden after Pesach.

The Maharai HaLevi’s opinion is difficult to understand, if we are to posit that the shareholder retains ownership of the chametz even though he has no access to it, as this would still require the owner to nullify his ownership of the chametz before Pesach.[4] It is thus easier for us to understand a cryptic line which appears later on in the Maharai HaLevi’s teshuva, where he writes: “Therefore, in our case I have already explained that the object of the chametz itself is not the property  of the shareholder, and he has no license to eat it, sell it, or destroy it.” This line is problematic because prior to it, he hadn’t proven anything of the sort! We are forced to understand, therefore, that while the Maharai HaLevi agrees with the conclusion of the Maharam Shick, in that the shareholder is not the owner of the chametz, he disagrees with the mechanism. For the Maharai HaLevi, it is not that the company is, in and of itself, a separate entity; rather, the fact that the shareholder can’t access any of the company’s holdings means that he doesn’t actually possess any halahically relevant ownership. In contrast, the Maharam Shick posits that an external company is created, and that company becomes the “owner” of the money (or chametz).

One practical difference between the Maharam Shick and the Maharai HaLevi which is worth pointing out comes to the fore with regard to the importance of the level of ownership one has in a particular company. For the Maharam Shick, this is irrelevant, as the company itself is the owner; for the Maharai HaLevi, controlling ownership in a company might cause issues with regards to chametz and, one might surmise, for issues of usury as well. Regarding tevilat keilim, one’s level of ownership might have implications for the Maharai HaLevi.

The approach that the level of ownership may be relevant to halachic ownership as well is, indeed, the position of the Minchat Yitzchak.[5] He writes that one who has partial ownership is considered an owner: “Partial ownership is considered ownership according to our Holy Torah, and therefore regarding stocks, where there is at least a partial ownership, the shareholders are considered owners.” However, he qualifies that this is not the case if one has no access to the property of the company or a say in its day to day management: “And with regard to those shareholders with no rights, not even to have their opinion heard at the shareholder meetings, as with government bonds — these shareholders are not considered even partial owners and their contribution is considered merely a loan [to the corporation].” The Minchat Yitzchak here says that a person’s ownership depends on his level of involvement in the decisions of the company, and we can infer that if a non-Jew had a controlling interest in a company, it would render him the owner and the utensils as obligated in tevilat kelim.

In contrast to the Maharai HaLevi and the Minchat Yitzchak, Rav Moshe Shternbuch[6] writes that shareholders, no matter their decision-making rights in the company, are still considered owners and therefore must sell their shares in companies which have chametz holdings. His reasoning is that a corporation does not exist in the Torah’s economic theory, and therefore the company is a simple partnership (albeit amongst many different partners).

This approach has an interesting corollary — Rav Shternbuch writes that since corporations are only “partnerships”, one cannot enter into such a partnership with a non-Jew. Therefore, he writes that if one does enter into such an agreement with a non-Jew — in an investment firm, for example — the money invested by the Jew is considered a loan. This means that if the non-Jew invests the money and loses the capital, he must return it in full to the Jew, as he would any other loan!

Rav Shternbuch concludes that since gentiles are not governed by Torah law, when dealing among themselves, they are subject to the laws of the land which they create. Therefore, says Rav Shternbuch, a company owned solely by non-Jews can indeed be a corporation; however, when Jews are involved in the company, it becomes a simple partnership and each Jew is considered a partner with ownership rights.

If we apply this reasoning to tevilat keilim, we can argue that either way, there should be no obligation of tevila. If the company is owned by non-Jews, then we apply the law of the land and the utensils are ownerless, as they are part of an “independent legal entity”. Therefore, they would not be obligated in tevila. If there are Jews who are involved in the company, the company becomes a classic partnership, in which event the utensils are owned by Jews and non-Jews, which are also exempt from tevilat kelim according to the Rema.[7] Therefore, one who buys a utensil from this partnership should also not be obligated to immerse it.

A number of other poskim have also addressed the issue of corporations. Rav Asher Weiss[8] writes that in his view, it is appropriate to accept the perspective of the prevalent law of the land, and therefore to classify corporations as ownerless “independent legal entities”, basing himself, in part, on the Maharam Shick. He writes that such a case was not ruled upon by the Sages, and thus falls under the purview of the default law of the land. Indeed, he goes so far as to say that this seems to the be proper ruling even according to Torah law, as none of the three principles in a corporation (shareholders, board, and executives) possess clearly defined ownership of the company. He finishes by writing “therefore, in principle a corporation is not responsible for keeping mitzvot, as the Torah was given to Jews and not to ‘corporations'”. We will explore the application of this principle to tevilat kelim further on.

In a ruling handed down by the Beit Din HaGadol of the Israeli Rabbinate,[9] Rav Shlomo Dichovsky agrees with the conclusion of Rav Asher Weiss that a corporation should properly be considered an independent legal entity. Firstly, Rav Dichovsky writes that the Torah provides legal decisors with the authority to create new economic categories. He bases this on the din of situmta, a type of acquisition which is based on the prevalent tradition of traders rather than any specific Torah or Rabbinic law. He quotes the Maharashdam[10] who writes:

It is clearly written that any monetary law can be effected [in one of two ways]: By either utilizing Torah or Rabbinic law, or by any means which is not written in the Torah and is not [codified] in law.

Based on this, Rav Dichovsky writes:

Which is to say, commercial customs create new economic categories and [can even] override halacha, and therefore is effective even in a case where the normal laws of acquisition don’t apply.

Rav Dichovsky writes further that one could potentially find a parallel to the idea of an independent legal entity in the idea of a tzibbur. The Gemara in Masechet Horayot[11] presents the idea that a tzibbur can’t die, meaning that in a case where a sacrifice was brought on behalf of the entirety of the Jewish people, and suddenly every single person in that generation died simultaneously — potentially rendering the sacrifice inert and therefore forbidding it to be brought on the altar — one would still bring that sacrifice. Here Rav Dichovsky identifies the idea of an entity independent of its constituents and draws a parallel to the idea of a corporation.

If one were to take Rav Dichovsky’s conclusions and apply them to the laws of tevilat keilim, it seems that the corporation is the legal owner of said utensils, and not a non-Jew, thus rendering them exempt from tevila.

Rav Shternbuch, however, in his piece quoted above, takes issue with Rav Dichovsky’s theoretical stance that one can create new economic law outside of what the Torah has already put forth, especially as it relates to corporations. He writes:

And it (the corporation) is like a golem which was created through the legal system of the nations of the world for the express purpose of doing business, and this non-living entity has debts and property.

And as for us, the Jewish nation, there is no such concept within economic law, and it is also impossible to create such a concept, for economic Torah law is limited to those laws which apply to living beings, and one cannot create – even through law – a [category of] acquisition for a non-living entity.

Practical Ruling

As we saw above, many modern-day authorities rule in principle that a corporation does indeed possess an independent legal identity. One would expect, therefore, for those same poskim to rule that the utensils sold by such companies are exempt from tevila, as they are ownerless. This, however, is surprisingly not the case.

After reaching such a clear conclusion regarding corporations in other areas of halacha, Rav Asher Weiss is surprisingly silent on this issue. Nowhere in his writings on tevilat keilim does Rav Weiss mention that utensils purchased from a corporation are exempt from tevila.

Indeed, even those poskim who hold that the level of ownership created by corporations is significant are reticent to rule conclusively based on that conclusion. For example, Rav Shternbuch[12] (who held that a corporation is not a halachic concept) writes that theoretically, one should not make a beracha on such utensils, as there is a legitimate doubt as to their ownership due to the possibility that a corporation is considered its own entity. Practically however, Rav Shternbuch writes that since the majority of shareholders are non-Jews and it has a “shem akum,” one can even make a beracha when immersing his utensils. Rav Chaim Pinchas Sheinberg[13] arrives at the conclusion that one should in fact not make a beracha on tevila of such utensils due to the issues raised above. This is the conclusion as well of Machon HaTorah V’ha’aretz,[14] who rule that one should not make a beracha when immersing utensils purchased from a corporation.

It seems though that practically, the poskim were unwilling to rule that such utensils do not require tevila at all. One potential explanation for this reluctance could be based on Tosafot,[15] who identify a further important component of the equation — the general attribution of this utensil (referred to by Rav Shternbuch above). If generally, people attribute this utensil to non-Jews, it acquires a shem goy, and therefore could potentially require tevila, even if it was never technically owned by a non-Jew.

A number of poskim rule that one should do the tevila with a beracha. These include Rav Moshe Feinstein[16] and Rav Shlomo Zalman Auerbach.[17]

Practically, it seems that the prevalent custom is to immerse one’s utensils which were purchased from a corporation and to make a beracha.[18]

[1]  Yoreh De’ah 158

[2] 39a, in the context of neder.

[3] Rav Yitzchak Aharon HaLevi Ettinga (1827-1891)

[4] See Shulchan Aruch (448:5) and Mishna Berura (25) concerning chametz that was nullified by a Jew and was then found in his property.

[5]  Minchat Yitzchak 3:1

[6]Mo’adim Uzemanim 3:269

[7] Yoreh De’ah 120:11

[8] Minchat Asher 1:108

[9] Piskei Din Rabbaniyim, Vol.10, pp.286-287

[10] Choshen Mishpat 380

[11]  6a

[12]Teshuvot V’hanhagot 2:408

[13]Shiurei Halacha, Tevilat Kelim, Shiur 16

[14] Available at: www.toraland.org.il/ שאלות-ותשובות/כשרות-המזון/כשרות-המטבח/ברכה-על-טבילת-כלים-של-חברה-בעמ

[15] Avoda Zara 75b

[16] Igrot Moshe (C.M. 2:15)

[17] Shiurei Halacha, loc cit.

[18] One option for those who wish to be stringent could be to wait until one has a utensil to be toveled that was definitely owned by a non-Jew. However, this is not a very common occurrence, since as mentioned in the article, the vast majority of utensils acquired are purchased in the store and were produced by a company. Another consideration could be that a Jew who sells a utensil may render it obligated in tevilat kelim at that time (see Beit Yosef Y.D. 120:8; Taz 120:7). If so, perhaps one could argue that an individual non-Jewish storeowner may render utensils that he sells obligated in tevilat kelim. Nevertheless, this too is not agreed upon by all. Another option could be to transfer ownership of utensils purchased to a non-Jew and then reacquire them back, in which case all would agree tevila is required with a beracha (though there is a discussion which methods of acquisition may be used with a non-Jew).

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