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Dividing the Prots of a Partnership Partners who Depend on Each Other Multiple Creditors Dividing a Debt

/ Dividing the Profits

We find in our sugya an interesting and perhaps unexpected aspect of business law. When two partners invest in a business, they do not necessarily divide the profits based on the amount of each one's investment. The Gemara discusses the case of two partners who purchased an ox for plowing, and then decided to sell it to be slaughtered for meat. According to R' Hamnuna, although each partner invested a different amount, they divide the profits equally.

Intellectual investment: The Talmud Yerushalmi explains that this law is based on assumption of the original intent of the partners. Anyone entering into business knows that capital is not the only asset that makes a business thrive. Skill and experience are also required (and of course, most of all siyata d'Shmaya). If one partner invests the majority of the capital, but the other partner invests the business acumen, it is fair to assume that the more capable partner will receive a portion of the profits greater than his financial investment. Here too, although one partner carried the greater expense of purchasing the ox, perhaps the other partner had greater experience in choosing a good ox for purchase, or tending to its welfare.

Since there are many considerations about how to divide the profit, partners must clearly stipulate their agreement when they form the business. If they do not, it must be assumed that they agreed to divide it equally.

Real estate in Eretz Yisroel: Based on this principle, the Poskim discuss the case of two Jews, one from Eretz Yisroel and one from chutz la'aretz, who purchased together a plot of land in Eretz Yisroel, in order to construct a residential building there and profit together from the sale of its apartments. The partner from chutz la'aretz invested 75% of the capital, while the partner from Eretz Yisroel invested only 25%. When they drafted the contract, they stipulated that when the apartments were sold, they would divide the profits equally.

Years passed, and for some reason they never actually constructed the building as they intended. However, the price of real estate in Eretz Yisroel rose so dramatically, that they decided they could make a comfortable profit just by selling the empty land. The investor from chutz la'aretz assumed he would get back 75% of the value of the plot, corresponding to his investment, since they had never materialized their original goal of building and selling apartments. The investor from Eretz Yisroel, however, claimed that since he was a partner, and they had not stipulated otherwise, he should get an equal 50% share. Unwittingly, the two partners had stumbled into a debate between Rashi and the Rambam, how to interpret the opinion of R' Hamnuna in our sugya.

Abaye's MitzvaThe Yehudi HaKodesh of Pshy'scha had a group of gifted students, who would regularly attend his Gemara shiur. Among them was one student, who stood out among them all as exceptionally bright and diligent in his studies. This student had lost his father several years earlier.One time, in the middle of the shiur, the Yehudi HaKodesh paused to consider a difficult point in the Gemara. Try as he might, he could not understand the opinion of the Amora, Abaye, and how he countered the arguments of the other Amoraim in the sugya. When the Yehudi HaKodesh paused to contemplate a difficult point in the Gemara, he would sometimes interrupt the shiur for almost an hour.Since the orphaned student had not eaten breakfast that day, he took the liberty of slipping out of the shiur for a few moments while the Rebbe thought. He hurried home to take a quick meal, to restore his strength for the remainder of the shiur. He ate a few bites, benched, and hurried back to the Beis Midrash with hopes that he had not missed anything.After he had taken a few steps out the door, his mother called after him, asking him to please lower some hay from the loft for her. Since he was already out the door, and he was afraid of missing the continuation of the shiur, he told his mother that he would return after the shiur to help her with anything she needed.

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Fluctuating Exchange Rates Unutilized Capital Slaves Wearing Tellin The Crossword Puzzle Prize

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As he briskly walked back to the Beis Midrash, feelings of regret began to gnaw at his heart. Really, the whole purpose of studying Torah is in order to uphold it. His mother had asked him for a favor, presenting him with a positive commandment from the Torah of Kibud Av V'Eim, one of the Ten Commandments. How could he refuse it, with the excuse that he was too busy learning? Had he not interrupted his learning for his own interests, to grab a few bites of food? Could he not also interrupt it to fulfill such an important mitzva? In the end, this course of reasoning prevailed, and he turned around and retraced his steps back home.He entered the barn, climbed up the ladder, and threw down a few bundles of hay for his mother. Then he carried them into the house, and with a few kind words to his mother and an apology for his earlier response, he again departed for shul.When he arrived, he found that the Yehudi HaKodesh was still engrossed in thought. He was immensely relieved to see that despite his lengthy absence, he had not missed anything. As he drew close to the table to return to his seat, the Yehudi HaKodesh took notice of him. A bright smile crossed the Rebbe's face, and he rose to his feet to greet the student. "Now I understand!" he declared with great joy, and preceded to present the Gemara from an entirely different vantage point, from which Abaye's opinion was crystal clear, and all the difficulties that had previously disturbed them vanished into thin air.After the shiur, the Rebbe asked the student what great mitzva he had performed in his absence. The bashful student explained how he had helped his widowed mother with a household chore. He expressed his hope that the Yehudi HaKodesh was not offended by his lengthy absence."No, no, quite the contrary," said the Rebbe. "In the merit of your mitzva, the entire shiur was graced with this brilliant new pshat in the sugya. When you returned to the Beis Midrash, the Amora Abaye himself accompanied you, and personally explained to me the reasons for his ruling in the Gemara.""Abaye's parents died when he was an infant," explained the Rebbe, "and

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An ox for plowing or for meat: Rashi explains that when two partners invest in an ox to plow their fields, even if one paid more than the other, they are both equal partners, since neither could have bought the ox alone. Therefore, R' Hamnuna rules that even if they later decided to sell it for slaughter, they do not divide the profits according to their investments. Rather, they divide it equally. However, it seems from Rashi that if they originally bought it for its meat, they each purchased a portion of the animal's body, and neither has any need for the other's investment. Therefore, if its value increases and they sell it for slaughter, each one receives a portion commensurate to his original investment.

The Rambam (Hilchos Shluchim, 4:3) argues that although the Gemara discusses an ox bought for plowing, the same is true of an ox bought for its meat. In either case, if they later sell the ox alive and benefit from its profit, they divide the profit equally. The Shulchan Aruch follows this opinion (C.M. 176:5).

Real estate development: In our case, the investors originally planned to construct an residential building and divide its apartments for sale. This is similar to the case of partners who together purchased an ox, with intention to slaughter it and divide its meat for sale. When the investors later sell the ox alive, or sell the plot of undeveloped land, Rashi rules that they divide the profits relative to their investments. The Rambam argues that they must still divide it equally (see R' Rafael Shiloh's article, in Moriah year 20, v. 3-4, p. 95).

/ Multiple Creditors

Our sugya discusses the case of a man with three wives, who had obligated himself to each one with a kesuba of a different amount. To one he had promised a hundred zuz, to the next two hundred, and to the third three hundred. When he died, he left over only three hundred zuz. How should the three wives divide the estate? Rebbe (Yehuda HaNassi) rules that they divide it equally. The Rishonim debate what Rebbe meant.

According to the Rif and Rambam (Hilchos Ishus 17:8; Hilchos Malveh V'Loveh 20:4), each wife claims one hundred zuz. Rabbeinu Chananel (cited in Tosefos s.v. Rebbe) argues that it is unfair for the woman with the larger kesuba to receive the same amount as the woman with the smaller kesuba. Rather, Rebbe meant that each woman should take an equal portion, commensurate to the size of her kesuba. Thus, the woman with the three hundred zuz kesuba claims one hundred and fifty zuz. The woman with the two hundred zuz kesuba claims one hundred zuz, and the woman with one hundred zuz kesuba claims only fifty zuz.

What is the basis of this debate? Why did the Rif and Rambam refuse to accept Rabbeinu Chananel's interpretation, and vice versa? R' Elchanan Wasserman zt"l (Kovetz Shiurim, Kesubos 335) offered an interesting explanation.

Dividing a debt: Let us imagine a case in which Reuven and Shimon each lent Levi one dollar. When the time comes to collect their loans, Levi has only one dollar to his name. The halacha is that each creditor claims fifty cents. Why? Two possible explanations can be offered.

Each creditor has a halachic claim on the entire dollar, but in practice he cannot receive it, since the other creditor interferes. Therefore, they have no choice but to suffice with half a dollar.

Each creditor has a halachic claim on only half the dollar, since the other creditor's claim on the other half supersedes his own.

The aggressive creditor: If one of the creditors grabbed the dollar for himself, then according to the first explanation he could keep it, since really he deserves the entire dollar. According to the second explanation, he does not deserve the entire dollar. Therefore, he must return half to the other creditor.

The Rambam (Hilchos Malveh V'Loveh ch. 19) and Raavad in fact debate this point. According to the Rambam, the aggressive creditor may keep the dollar. According to the Raavad he may not. Apparently, the Rambam followed the first explanation, that each creditor deserves his entire debt. Accordingly, in our sugya each wife's claim on her respective portion is equal. Therefore, each wife takes one hundred zuz.

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he was raised by his teacher, Rabbah. His name is an anacronym for the possuk, 'Asher b'cha yerucham yasom Through You, the orphan will find mercy' (Hosheia 14:4). He never had the opportunity to honor them in their lifetimes. Whenever a Jew performs an exceptional act of Kibud Av V'Eim, Abaye descends to this world to help him, granting him strength in his endeavors. Thereby, Abaye also has a portion in this important mitzva. Once Abaye's soul had descended to help you in your mitzva, he followed you back to the Beis Midrash, where I saw him now revealed."

/ Cleaving to Torah ScholarsThe Gemara tells us that a Torah teacher who refuses his students the opportunity to serve him deprives them of the kindness they deserve. The Maharal explains that when a student serves his rebbe, his love for his rebbe grows, and he feels increasingly attached to him. Since being attached to a Torah scholar is such an important boon, a teacher must not deny this opportunity to his students (Chiddushei Aggados).

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An Opportunity to Gain Yiras Shomayim

When Moshe Rabbeinu was instructed to build the Mishkan, he did not build it by himself, but instead involved the entire Jewish people in its construction. The Panim Yafos (Teruma) notes that this seems to contradict the general principle that a mitzva is best done personally, and not by means of one's emissaries. Why did Moshe Rabbeinu not personally complete the construction of the Mishkan?He explains based on our Gemara, where we learn that if a rebbe denies his students the opportunity to serve him, he deprives them of kindness, and detracts from their yiras Shomayim.

Rabbeinu Chananel, on the other hand, perhaps followed the second explanation. The claim of each creditor supersedes the claims of his competitors, each according to the amount of his claim. Therefore, the creditor with the greater claim, collects a greater portion of the estate.

/ Fluctuating Exchange Rates

Once, two friends entered into a business partnership. One invested one hundred thousand shekalim, while the other invested twenty-five thousand dollars. Both deposited their investments in the hands of a third party. Since the exchange rate was then four shekalim to the dollar, their investments were equal. In the end, their business never materialized. They both approached the third party to dissolve the partnership, and reclaim their investments. However, in the meantime the exchange rate changed, such that one dollar was now worth four and a half shekalim. The hundred thousand shekalim was now worth only $22,222.22. How should they divide the capital?

The shekel investor claimed that he had invested half the capital into the business, and he deserved to regain half the capital now that the business was dissolved. The dollar investor claimed that each should regain exactly what he invested twenty five thousand dollars for himself, and one hundred thousand shekalim for his partner regardless of their current value. The resolution to their argument depends on a debate among the Poskim how to interpret our sugya.

"This one takes according to his money": The Gemara states that if three people invested in a business, "this one takes according to his money, and that one takes according to his money": meaning, if the money is never utilized and the business is dissolved, each partner takes a share proportionate to his original investment.

The Sma (C.M. 176 s.k. 16) explains that each one reclaims his original investment, no different than if he had kept his money at home. Accordingly, it would seem that the shekel investor should reclaim his shekalim, and the dollar investor should reclaim his dollars regardless of their value, just as if they had kept their money at home.

The Nesivos HaMishpat (ibid, s.k. 10) offers a different explanation of the Gemara. Had the company been successful, each would have taken an equal share of its profits, regardless of their original investment (as we discussed in the previous article). However, since the money was never used and no profit was made, they take only their share of the company's value, proportionate to their investment. Each invested half of the capital, so each should claim half of the company's value.

Some Acharonim argue that since the partnership never actually used the money for any business venture, no partner has any claim on the other's capital (see Milu'ei Mishpat, ibid). Only if they invested the money, for example: to buy an ox for plowing, do we apply the principles of our Gemara of how to divide the profits and the capital.

" / Slaves Wearing Tefillin

The Gemara tells us that a student may not demean himself by removing his rebbe's shoes, since this is a service that typifies slavery. A bystander might observe the student's action, and jump to the inaccurate conclusion that the student is in fact a slave (Rashi, s.v. Chutz). However, if the student is wearing tefillin, he may remove his rebbe's shoes. The tefillin are an unmistakable sign that the student is a free man, since slaves do not wear tefillin.

Tosefos asks how this is a proof, since we previously learned in our masechta that an eved Canaani (Canaanite slave) may indeed wear tefillin. Tosefos explains that although slaves may wear tefillin, they wear them only for a few moments each day, not throughout the length of the day, as was once customary among free Jews. Therefore, if a student is seen wearing tefillin and removing his rebbe's shoes, there is no mistaking him for a slave.

Precisely at that moment: The Chasam Sofer (on our sugya) questions this conclusion. Since a slave may wear tefillin for a few moments, a bystander might assume that precisely at the moment he chose to wear his tefillin, he was called to remove his master's shoes.

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In constructing the Mishkan, Moshe Rabbeinu found a golden opportunity to allow the entire Jewish people to assist him in this important task. Thereby, he bestowed on them a prodigious blessing of yiras Shomayim.

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Two NamesToday it is common for people to have a first and middle name. However, we never find from the era of the Rishonim any reference to a person with two names. A single exception seems to be R' Yaakov Yisroel, cited in Tosefos here. However, some suggest that he had only one name, Yaakov, but he was called by the nickname Yaakov Yisroel, to distinguish him from other people named Yaakov. This assumption seems to be supported by the way he signed one of his halachic teshuvos, with the name "Yaakov bar Yosef Yisroel." Here it seems that Yisroel was not really his name, but his title (see Sefer HaYashar, Teshuvos 53, note 2; and 54 note 11).

/ Collecting a Debt from

the EgyptiansThe Midrash says that Bnei Yisroel saw the Yam Suf spit up the Egyptians alive on the shore. There they saw their mortally wounded enemies die before their eyes. What was the point of this? Why did Hashem not have them die in the depths?The Panim Yafos explains that the Jewish people took the treasures of Egypt as their just reward for their years of slave labor. As we learn in our sugya, a creditor can claim the debt of a dead person from the real estate inherited by the heirs, but not from the movable property. The treasures were movable property. Therefore they had to be claimed before the Egyptians died.

We find in halacha that while wearing tefillin, a person may engage in any form of physical labor, with the exception of carrying garbage on his head, which is a disgrace to the tefillin (Bava Metzia 105b; Mishna Berura 41 s.k. 3). So too, he may remove someone's shoes while wearing tefillin, as we find explicitly in our sugya (Me'Asef Kol HaMachanos 43 s.k. 19).

However, to answer his objection to Tosefos, the Chasam Sofer stipulates that one may only do these labors while wearing tefillin, if he is accustomed to wearing tefillin for the entire day. If he wears tefillin for only a short while each day (as is our custom), he may not perform mundane labors while wearing them. It would be a disgrace to tefillin, if he would devote himself to these labors, precisely during the short time he wears tefillin.

For this reason, a student may remove his rebbe's shoes while wearing tefillin, and he does not appear like a slave. Had he been a slave, who wears tefillin for only a few moments each day, he would not devote himself to mundane labors during that holy time. Rather, it is obvious that he is a free Jew, who wears tefillin for the entire day.

/ Who Claims the Crossword Prize?

A question was once raised regarding a crossword puzzle enthusiast, who sent a completed crossword puzzle to a magazine, thereby entering their drawing for a valuable prize. He was embarrassed to submit his true name, knowing that if he won his name would be publicized in the magazine. Instead, he submitted the name of his neighbor. The neighbor's name was drawn as the winner, and the prize was soon sent to his house.

When the neighbor received the prize, he realized what had happened, knowing full well the other's hobby and his bashful nature. However, he had no intention of forfeiting the prize. "My name was drawn," he claimed, "and the prize is mine." Need he give the prize to the person who completed the crossword? The answer to this question can be found in our sugya.

The messenger's bonus: The Gemara discusses the case of Reuven, who sent Shimon to purchase something for him. The seller, Levi, in a spirit of generosity, gave Shimon more than his money's worth of the product. Who keeps the added bonus, Reuven or Shimon? The Gemara rules that they must share it.

The Rishonim debate the reason for this ruling. According to Rashi (s.v. Sheyaish) and the Ramban (Attributed Teshuvos, 60) it was unclear to whom Levi intended to give the bonus, therefore Reuven and Shimon must share it.

On the other hand, the Rif (57b) and Rosh (11:15) explain that according to the strict dictates of halacha, Shimon alone should claim the bonus. However, our Sages decreed that he must share it with Reuven, since Reuven was instrumental in getting Shimon the bonus.

The practical distinction between these two reasons would be evident in a case where Levi explicitly said that he meant to give the bonus to Shimon alone. According to Rashi and the Ramban, Shimon would receive the entire bonus. According to The Rif and Rosh, Reuven and Shimon would still share it (Ran, cited in Sma and Shach 182:6). If Levi would explicitly say that he meant to give the bonus to Reuven alone, all would agree that Shimon has no share in it (Ketzos HaChoshen, s.k. 7).

Who deserves the prize: Undoubtedly, the magazine intended for the person who filled out the crossword to receive the prize. Therefore, although they sent it through his neighbor, he should receive the entire prize, as the Ketzos HaChoshen ruled.

Their combined "mazal": However, according to a third explanation of our sugya, the crossword enthusiast and his neighbor should share the prize. The Aviasaf (a Rishon, whose writings were lost to us, but is quoted by the Mordechai and Hagahos Ashri on our sugya) explains that Reuven and Shimon must share the bonus, since their combined mazal won it (see Ketzos HaChoshen ibid s.k. 8). In this case, perhaps the mazal of the neighbor's name, caused it to be drawn from among the hundreds of correct answers submitted.

On the other hand, perhaps we can only attribute the success of the venture to Shimon's "mazal" if he did something to win the bonus (such as being the broker of the deal). However, there is no proof from Chazal that a person's mazal is a factor in causing his name to be drawn (Mishpatei HaTorah I, 67).

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