Siman 171

Partners who have land in partnership, whether they purchased it in partnership, or inherited it, or it was given to them as a gift, or they acquired it from ownerless property, or one purchased half of his fellow's field, and one of the partners requested to divide and take his portion alone—if that land has the "law of division" as will be explained, he may compel the partner to divide, unless they accepted through a kinyan not to divide. This is not a "kinyan devarim," for each one transferred to his fellow his portion for use there. And so too, in one who purchased half a field and they specified at the time of the kinyan that they shall not divide, the condition is valid [it appears to me]. And if it does not have the "law of division," neither of them can compel his fellow to divide. And such is the law regarding movables, for there is no reason to distinguish in this between land and movables. And this is specifically when this partnership is not for commerce; but in a partnership for commerce, even if there is enough for division, one cannot compel to divide before the time they established to be partners, as I wrote in siman 176.

And that which we said regarding that which does not have the law of division, that he cannot compel to divide, in what case does this apply? When neither of them recognizes his portion, but rather the hand of all of them uses every place. But if each one recognized his portion, such as if they bought it on this condition, or in an inheritance where they subsequently agreed through a kinyan that each one would use a portion for himself, even though it does not have the law of division, each of them compels his fellow to separate between his portion and the portion of his fellow so that they do not damage one another through sight, as has been written in siman 157. And even in a place where the damage of sight is not relevant, one compels his fellow that he shall not use his portion and he shall not use the portion of his fellow, and he has the ability to make a partition between them, provided that he brings it into his own. And so too regarding movables, he compels him to divide completely so that one shall not be connected to the portion of his fellow.

From that which has been explained, that when each one recognizes his portion he can compel to divide and has the ability to make a partition between them, there are those who learned from this regarding seats in the beit din and Reuven and Shimon have seats next to each other, and Reuven wants to make a partition between them and place the partition within his own, and Shimon protests against him and claims that when he does so the seat will be cramped, the law is with Reuven since each one recognizes his portion, and only that he shall not diminish the light with the partition and shall make it low. Nevertheless, many who sit on one bench in the beit knesset, and the one sitting at the end, his seat is wide such that two could sit in it, and his desire is to divide his seat with a partition so that there will be two actual seats, and the one sitting next to him protests against him saying that now he is in the second seat and when he makes a partition his will be the third seat, the law is with him and he can protest. And even though even without a partition Reuven can seat another man in his seat, nevertheless it is all considered as one seat, which is not the case when they divide [Netivot HaMishpat]. And specifically when there is a grievance in this, such as when the second seat is more expensive than the third, for then he lowers his honor. And even without a partition, if Reuven wants to fix two boards upon his seat, as the custom is among us to fix a board upon the seat and they support it with a rod or with iron to place the siddur upon it, he can also protest, since by this it will be recognizable that his is the third seat. But when there is no importance in this, he cannot protest against him, and for the most part there is importance in this.

What is the law of division? Any case where, if it were divided according to the partners, there would reach to each one a portion such that the name of the whole is still called upon the portion, there is a law of division in this. But if the general name is lost from the portion, there is no law of division in it. How so? Any courtyard that does not have four cubits by four cubits square, besides the four cubits of the entrances as will be explained in siman 172, is not called a courtyard. And any field that does not have enough for the sowing of nine kabin is not called a field. And any garden that does not have enough for the sowing of half a kab is not called a garden. And any orchard that does not have enough for the sowing of three kabin is not called an orchard [the Rif omitted this, and it requires further study]. Therefore, they do not divide the courtyard until there are four cubits by four cubits for each one, besides the four cubits in front of the entrances; nor the field until there is the sowing of nine kabin for each one; nor the garden until there is half a kab for each one; nor the orchard until there is the space of three kabin for each one. In what case are these things said? In Eretz Yisrael and its like, where the land is good and there is significant importance in these measures. But in Bavel and its like, there is no fixed measure in the quantity of the field, and any that does not have enough for a day's plowing for this one and a day's plowing for this one, they do not divide [this too he omitted] because a laborer is not hired for less than one day's work. And if he does not have this measure, he will lose out, as he would need to pay a laborer for a full day. And in an orchard, the measure is that there be thirty-six trees for this one and thirty-six for this one, which is the measure of a man's labor in one day. And a field that they irrigate with a vessel, until there is enough for the laborer to fill one day for this one and one day for this one; and with less than this, there is no law of division in it. But more than one day's labor, even though there is not two days' labor but only a day and a half for each one, they divide [Sma]. And there is one who says that they only divide the measure of the day, and the remainder stays in partnership because there is not enough for a day's labor for each one [Taz]. And from all the poskim it appears like the first opinion; for if you say so, then even in a large field you would need to calculate perhaps there is work for a hundred days and a half and the like [and his proof is from Bava Batra 12a: "if it is a day's sowing, two days' plowing," it is not so; since the poskim omitted it, it implies that it was merely a common expression that he inferred from it, and from Rashi there it implies like this opinion].

If there are many partners and all of them have portions that contain enough for division, but one has a small portion that does not contain enough for division, the one may prevent all of them from dividing [Sma]. However, if they all had enough for division and one of them sold his portion to two people, or bequeathed it to his two sons, and each one does not have enough for division, they cannot prevent the division, for they are no better than the person from whom they come. Nevertheless, to prevent the division based on the power that comes from him, he cannot; for example, three who were partners, where two had enough for division and one did not, and one of the two purchased the portion of the third, he cannot prevent the division even though the one who sold to him had the power to prevent it, for in any event, for him there is the law of division [Levush]. And he cannot say that he purchased the right of the seller, for this is not in the category of a right or an obligation [the Gra]. And likewise, he cannot say "I will return the deed of sale to the seller and he will prevent the division," for we only say this in a place where they desire to diminish his right, such as from medium-quality land to inferior-quality land, but in this case he cannot say so [ibid.].

And that which has been explained, that if one does not have the minimum for division he may prevent all of them, refers specifically to one; but two, for example if there were four partners and for two of them each had the minimum for division, and for the other two there was only a measure for division through the combination of both of them—if these two who each have the minimum for division wish to separate from the remaining two, they do not have the power to prevent them, since for the two of them there will still remain the minimum for division. And even if one of the remaining ones said, "Give me my portion as well and I will separate from you," and consequently there will remain for the fourth less than the minimum for division and he would then prevent all of them, we do not allow him to say this; since his intention is only to nullify the division of the two who have the minimum for division, this is the trait of Sodom. Therefore, if he gives a proper reason for his words, that he is compelled to separate and his intention is not in order to prevent the two, we listen to him and they are compelled to make a compromise between them [Sma].

There is one who says regarding two partners where neither has enough for a division, but one has adjacent land suitable to be joined, his fellow can compel him to divide if he gives him the portion adjacent to his land, for he will then have the required measure. These are words of reason. This is specifically when there is no interruption between this portion and his adjacent land, such as when they are on one boundary and the like. And even according to the poskim as will be explained in siman 174, that if this adjacent owner wanted to compel the second to give him specifically this portion he would not have the power to compel him, nevertheless, when the second wants to give him this portion so that he will have the required measure, he can compel him. [And this is the intention of the Tur in section 3, and what he wrote "he can compel him" means the second shall compel the adjacent owner, and this is not related to the dispute in siman 174, and so our teacher, the Beit Yosef, understood as he wrote in the Shulchan Aruch section 4, and the words of the Sma in subsection 10 require great study]:

Regarding a house, the measurement for division was not explicitly stated in the Gemara. Some say the measurement is no less than four amot by six amot for each person, as this is the smallest house, as written in siman 214 [Mordechai, chapter 1 of Bava Batra]. Others say that four by four is sufficient, like the measurement of a house in which one places eruvei chatzerot [ibid.]. It appears that this depends on the assessment of the beit din according to the location and the status of the people. Some further say that we require each person to be able to use his portion for everything he used the whole for—for example, if there was a bathhouse, or a cattle stall, or a lavatory, or a cellar, or a place for wood for the house, and similarly other household needs—it is necessary that after the division, this also remains for each person, such that in the portion of each one there will be all the needs that the house previously had; if not, it does not possess the requirement for division. In section 21, more will be explained regarding this. Similarly, if they wish to divide a house that possesses the law of division, but the house will be damaged and diminished by the division, one cannot compel his fellow to divide as long as it appears to the beit din that the loss will be more than a fifth of its current value, for this is a substantial loss; for less than a sixth is not considered a loss, as even regarding movable property it is subject to waiver, and more than a sixth is called a loss, as regarding movable property it constitutes the cancellation of the sale, and more than a fifth is a substantial loss. If it does not possess the law of division but the wall is thick, and if they thin it out it would possess the law of division, if it appears to experts that the thinning will not damage the general structure, they may compel one another to divide; if not, they may not compel. A house that possesses the law of division if they divide it by its width, but if they divide it by its length it would not possess the law of division, they divide it by its width. There is one who says that regarding a house or a courtyard, even if they possess the law of division, nevertheless, if there will not be a separate path for each of the partners and one will need to pass through the portion of his fellow, it is called not possessing the law of division. If on one side there are many buildings and on the second side few, or if on one side there is a public domain and on the second side an alleyway, since there is enough for division, they compel the division and compensate one another with money for the portions. Neither of them can say to break the buildings to make equal portions if the second does not consent to this; but with the consent of both of them, they may do as they wish to break and destroy, and there is no concern of bal tashchit in this, since it appears to them that this will be good for them.

The sages ruled that there is a law of "gud o igud," meaning that in a matter which does not have the law of division, or which is impossible to divide at all, such as a male slave, a female slave, a vessel, an animal, or a garment, one of the partners can say to his fellow: "Either sell me your portion for such-and-such, or buy my portion from me at this price." And the same applies if there were many partners; one can say this to all of them, or two of them can say to the remaining ones "gud o igud" [it appears to me]. The claimant forces the defendant in this matter to buy from him or sell to him. And "gud" is an expression of pulling, either "pull to yourself" or "I will pull to myself," or it is from the expression "cut down the tree" (gudu ilana), meaning either you cut the price of the purchase and buy, or I will cut the price and buy. Most of the poskim agreed that even if he set a price much higher than its value, the second is compelled to buy or sell at this price, since he gives him the choice. And although there are those who disagree and hold that the beit din appraises the object and the defendant has the ability to buy or sell, nevertheless, our teacher, the Rema, in section 6, decided like the majority of the poskim [and the Ri and the Geonim in the Tur disagree with this, as they hold like the first explanation, and most of the poskim hold like the second explanation]. But if the claimant does not want to buy, or if his hand cannot afford to buy, he cannot compel his fellow to buy from him even at a cheap rate. However, the second can compel him even though this one has nothing with which to buy, for everything depends on the mind of the claimant [Rif]. And even though through this the defendant will be compelled to sell to him cheaply, nevertheless, it is within his power to sell his portion to another according to its value, and this one will not pressure the other to sell to him cheaply since his hand can afford it. However, if this poor person does not find anyone who will buy from him, the beit din appraises the object and the second retains it at this price, for it is not from fairness that the wealthy person should pressure the poor person to sell to him for less than its value. And if the poor person says "gud o igud," meaning "either buy from me or I will sell the whole thing to another," the poskim disagreed on this: some say he can compel him in such a case, for what does it matter to the wealthy person if this one himself will buy it or another will buy it? And some say that this enactment was only enacted when he says "I will buy it for my use" and not to sell to others, and so wrote our teacher, the Rema. And if it is within his power to obtain a loan and buy it for himself, it is obvious that he can say so [Sma]. And even though regarding one who sells an ancestral field, he does not have the power to borrow money and redeem it if he does not have money, as is explained in the Rambam, chapter 8 of Shemitah, this is a decree of the Torah and we do not learn from it for this enactment [it appears to me].

If each of them said, "I do not want to buy but rather to sell," they sell to another, to whoever gives more. And even if one of them wants to sell his portion to his friend or his relative for less, if through this his partner's portion will be diminished, we do not listen to him [Netivot HaMishpat], and even when they give much more than its value. And if each of them says, "I will not sell, but rather I will buy my partner's portion," or if neither of them wants to buy nor to sell and they want to remain in partnership, but to use it together is impossible and each wants to use it: if this thing is made to be rented, they rent it out and divide the rent. However, regarding the rental itself, each can claim "gud o igud," or "you rent it for such-and-such and pay me my portion, or I will rent it for this amount and pay you your portion," just as in a sale. And if it is not made to be rented, or there is no one to rent it to, and to be together is impossible, they shall dwell in it year by year and shall cast lots as to who shall dwell first. And so too with an object, they shall use it year by year. And if one wants to switch every month, we do not listen to him, for a person is not made to trouble himself every month. And if one has two-thirds and one has one-third, this one shall use it for two years and this one for one year, and they shall cast lots as to who is first. And in section 11 it will be explained that regarding mataltelin there is no necessity to switch year by year, and in a chatzer there is a portion that we do not divide into times. And that which we wrote, that also in rental there is the law of "gud o igud," this is the opinion of the Rambam, of blessed memory, and our teacher, the Rema, ruled accordingly in section 8.

And all this is regarding a matter where it is impossible for them to use it together; but a matter where it is possible to use it together and each has a half, they do not divide it by times without the will of both of them, but rather they always use it together, such as a bathhouse where both bathe, and similarly a sefer Torah where both read, and similarly bedding and the like. And one cannot say, "You use it one day and I will use it one day," for this one can say to him: Just as you lack the power to divest me of it entirely, so too you lack the power to divest me of it even for one day. This is unless one has a large portion and one has a small portion, for then it is necessary to divide it by times so that the one who has the large portion is not disadvantaged by using it equally with the owner of the small portion [ibid.]. And if it is a movable object that is impossible to use as one, such as a slave or an animal for riding or for plowing or other objects, it is necessary to divide it by days even with equal portions. And in this, it is not necessary to divide year by year, for only regarding a dwelling is a person not prone to vacate himself for a short time, but not regarding movable objects. And if according to the way of the world there is also no way to use it day by day alternately, they divide it by weeks or by months. And some say that a courtyard cannot be divided by times, for one must unload his burden and enter his house at every hour, and therefore they must use it together, as it is encumbered to each one for his house designated for him. And for this reason, there is no law of gud o igud in a courtyard, and specifically regarding the four amot required for each and every entrance, as will be explained, or regarding a path required for entry and exit; but in the rest of the courtyard, we say gud o igud. And this fact that we do not say it regarding the four amot before the entrance and regarding the path—even though the houses are open on one side to the public domain and they have the ability to enter through there—is because a person is not prone to unload his burden in the street in the sight of all, and similarly it is not the way to constantly make entry and exit from the public domain in a place where they are accustomed to enter through courtyards. And it appears that regarding the matter of entry and exit, even when one has a small portion compared to his fellow, nevertheless he cannot remove him, neither by gud o igud nor by division of time, for it is impossible without entry and exit even for one hour.

That which we have said, that they use it for periods of time or both of them as one, this is specifically when they agreed upon this between themselves. However, when they did not agree between themselves and one of them used this alone even for several years, and the second was not here or was here and remained silent, he cannot say afterward, "I will also use it alone for as much time as you used it," because this one will say to him: "As long as we did not divide between us, I only used my portion, and I was not required to refrain from using it because you did not use it, and I did not prevent you from using it; and if you want to divide it into periods of time, start from today." And so too regarding a place in the synagogue, when one sat upon it for several years and the second was not in the city or was there and remained silent, they do not deduct for him what he sat upon, for he used his own as long as they did not divide and agree between themselves [Levush]. And if he did not use it himself but rather rented it to others, the rent is divided in half [Netivot HaMishpat]. And so too if he made it a lodging place, the rent is divided in half, for this is like renting it to others [Sha'ar Mishpat]. And so too regarding a beast of partners where one of them ate its milk for several years, or chicken eggs and the like, he must pay the partner his portion even from the past time, with the deduction of its sustenance and the fee for effort [It appears to me].

From what has been explained, we have learned regarding two brothers who inherited a bathhouse or an olive press and the like, a thing that is not fit to be divided: if their father made them to be rented out, or even if he did not make them to be rented out but they find someone who will rent them, they rent them out and the rent is split in half for as long as they wish to remain in partnership. And if the father made them for himself, and they also do not find someone to rent them, they use them in partnership in the manner that their father used them; and one can also claim, "Either rent my portion for such-and-such, or I will rent from you at this price." And there are those who say that when their father made them for himself and not to rent them out, one also does not have the power to compel the second to rent them out even if they find someone to rent them, and likewise he cannot compel the second to rent his portion or to rent to him. And they wrote that the opinion of the Rambam is also thus. However, most of the commentators agreed with the first opinion, and so the mind inclines, for why should they depend on the intent of the father? Behold, it is now theirs. Therefore, if there is no ability to rent them out and one of them is wealthy and the second is poor, the wealthy one says to the poor one, "Take olives for yourself and process them in the olive press," and "Buy slaves for yourself and let them wash in the bathhouse." And the poor one does not compel the wealthy one to buy his portion unless he too is able to buy and can say to him, "God or Igod." But the wealthy one can claim this and they shall appraise the price in beit din. And the wealthy one cannot say to the poor one, "I will use my portion and you rent your portion to another," for it is not the way to rent these things in halves; and he can only claim "God or Igod" whether regarding sale or regarding rental according to the opinion of the Rambam. But in a large house and the like, where they rent in halves, the wealthy one can say so if the poor one does not claim "God or Igod."

It has already been explained that the opinion of the Rambam, of blessed memory, is that one can say gud o igud both regarding a sale and regarding a rental. Furthermore, his opinion is that even regarding something that is not completely theirs, but rather they rented the thing in partnership, they are able to claim gud o igud, as he wrote in the first chapter of Laws of Rental: One who rents from his fellow part of a field or a courtyard that does not have the law of division, or two who rented one place in partnership, each of them can compel his fellow and say to him: "Either rent my portion from me or rent your portion to me." And if it has the law of division, they divide. Thus far his words. Our teacher, the Beit Yosef, brought this in section 9. Our teacher, the Rema, wrote that there are those who disagree and hold that division is not applicable to a thing rented for a time, thus far his words, for they thought and accepted it upon themselves when they rented together. For there are those who say that even when they purchased together, one does not say gud o igud, as one only says this regarding an inheritance or a gift and not regarding a purchase. This is the opinion of the Ri in the Tur and the Nimukei Yosef in the name of the Ra'ah, and it appears this is the opinion of the Ra'avad there, for they purchased it on this condition. Nevertheless, we do not rule accordingly, and our teachers, the authors of the Shulchan Aruch, did not bring this opinion at all. However, at any rate regarding rental, the opinion of many poskim is that we do not say gud o igud. The Rashba, of blessed memory, wrote that it stands to reason like the Rambam, because he can say, "I thought I would be able to be a partner with him, and now I cannot accept it." Furthermore, he can say that his intention in his rental together was not that they should be partners in this, but rather "I only did so so that he would not increase the price, and I relied on the fact that I would claim gud o igud." And like the opinion of the Rambam is explicitly in the Yerushalmi, second chapter of Bava Batra, and it is explained there that if he accepted upon himself to be a partner with him, he cannot retract [the Gra]. But to compel him to erect a partition, even according to the opinion of the Rambam, he cannot in a rental, even though there is hezek re'iyah [Taz], for since it is not his, how can he erect a partition? [And with this it is settled, so that there is no difficulty from what was written in siman 316, and examine there].

We do not say "gud o igud" except regarding the whole and not regarding a part. For example, if it does not have the minimum measure for division and one said, "Let us make two parts, one according to the measure and one small, and I will take the small one and you take the large one and give me the money that the large one is worth more," he cannot compel him, even though it is a good claim. And the reason is because the enactment of "gud o igud" was only enacted when the claimant can say both sides, and here there is "gud" but there is no "igud," for when he claims "igud" the large part and you take the small part, this is no claim at all [Rosh]. And some say further that even if he said to him, "Take the large part as a gift," the other can say, "It is not my will to receive a gift," for "he who hates gifts shall live." And there are those who disagree on this, for since it is his will to give it to him as a gift, you have no claim more fair than this, even though there is no "igud." And if he said to him, "Take the large part at its value and I the small, or I will take the large part at its value and you take the small, and if you have no desire for a small portion I will take everything," we listen to him according to all opinions, even though he does not allow his fellow to take everything, because there is here "gud" and "igud": "gud" regarding the appropriate portion and I will take the small, and what is it to you to buy everything since I am giving you the appropriate portion, and "igud" regarding everything or regarding the appropriate portion [ibid.].

If one has the required measure and the second does not—for example, a courtyard behind houses that contains seven amot, and Reuven has four amot while Shimon has only three amot—Shimon can compel Reuven to divide since he [Reuven] has the measure for division. However, Reuven cannot compel him to divide, and only with the claim of gud o igud can he also claim. Nevertheless, in this case Reuven's power is superior, for if he wishes, he can say to Shimon: "I will take three amot from my portion and leave one amah to be a partner with you, and there will be four amot between us, and afterward I or you will claim gud o igud." And even though it has been explained that with equal portions one cannot say gud o igud regarding a part, nevertheless, in this case where one has more, he can say to his partner: "It is not within your power to be equal with me in usage, for you are using a quarter of my portion which is in excess of your portion; therefore my power is superior to divide in this manner, to leave for the partnership the required measure and to receive the remainder for myself" [Taz]. And there is one who disagrees even in this [Shach], but the primary view is like the first opinion [Netivot HaMishpat].

And if even for both of them together there is not the required measure, such as a courtyard of partners that has only three amot, some say that we do not say in this case "cut or join," for this claim is only in a place where if it remains with one, there will be at least the required measure; but in this case, how can he say to the second "cut," for what will he cut, as there is not the required measure? And some say that we say it even in this case, for in any event it is better that it belong to one than to two. And if according to the assessment of the experts they must necessarily use this for another use, and for that other use there will be enough for division for both of them—such as a courtyard of three amot which is not fit for a courtyard, and they must necessarily make it a place to spread out fruit and the like, and for this there is a use for both of them—it is called "having enough for division," and one may compel his fellow to divide [Tur]. And from this one may judge in all matters according to the assessment of the experts.

Even though we have said that the law of gud o igud applies only to the whole, nevertheless, sometimes this law applies even regarding division. How so? Two brothers who inherited, or two who purchased, two large houses in each of which there is also enough for division, or two fields in each of which there is enough for division, or two maidservants or two slaves who perform the same labor, or two vessels or objects whose use is identical—one can compel his fellow to gud o igud in the division, saying to him: "You take this house and I the other," or "You take the other and I will take this." And so too with fields, slaves, maidservants, vessels, and objects. For since the primary reason for gud o igud is because it is not fit for both of them, and since through division it will be fit for both of them, they compel this. And even if one says, "Let us divide each house or each field," since there is in each the law of division, and the second says, "Not so, but rather let us divide house against house and field against field," we listen to the one who said, "Let us divide house against house." And even if there is in each enough for division, for why should they cause a loss to themselves by dividing them in two, since it is within the power of each to have it in its entirety?

In what case are these words said? Regarding a matter where the two uses are equal. But regarding two things whose uses are not equal, such as if they inherited a field and a vineyard and there is not enough in each for division—for if there were enough for division, they would divide the field and the vineyard into halves—or if they have two maidservants, one of whom knows how to bake and cook and one of whom knows how to spin, or two vessels whose functions are not equal, even if they are equal in their value, one cannot say to his fellow: "You take the field and I the vineyard," or "You take the maidservant who bakes and cooks and I will take the one who knows how to spin," or vice versa, because each one needs both things and this is not an equal division. And similarly, it is impossible to say gud o igud regarding both of them as one; for it is well that gud o igud regarding one thing is a valid claim, since it is not fit for halves, [one says] "You take all of it or I will take all of it," and one of us will have a complete use. But regarding two things whose uses are different from one another, what connection has one to the other? Therefore, what is their remedy? That regarding each one individually he shall say gud o igud, or he shall say it regarding one and the second shall remain in partnership. But two things whose uses are equal and their values are equal and there is not enough in each for division, certainly each of them can say to his fellow gud o igud, which is to say that they divide one against the other, and this one takes this and this one takes the second, and he gives him the choice to take what he wants. But "gud both of them" he cannot say, since one is sufficient. And even "one after the other" they cannot say, since it is possible to divide one against the other, and even if there is enough in each for division, as I wrote in section 18.

And regarding two items whose use is identical but whose values are not identical, if one can say "gud o agud" in this manner—that one shall take one and the second shall take the other, and he gives him the choice to choose what he desires, and whoever receives the better one shall compensate the second with money—the poskim are divided. For some say that the law of "gud o agud" applies to this, and in all manners he can say to his fellow: either one shall give to the second the difference between them, or he shall say to him, "take one of them without additional payment and I will take the second," or vice versa. And some say that a superior one and an inferior one are considered like two types of uses, and the law of "gud o agud" does not apply to both of them as one. And in the Yerushalmi at the end of the first chapter of Bava Batra, it implies like the first opinion.

From what has been explained, that they only divide something where their use is equal, some say that regarding a house against a house, in most instances they do not divide, for most houses do not have the law of division because not all houses and rooms are equal. And all the more so they do not divide a house against an attic or against a room whose use is not equal to it. And all the more so in a place where it would be necessary to demolish the windows and the doorways and rebuild, they do not divide in such a case. And only in those rooms where each room has a doorway to the public domain and each one is called a dwelling on its own does division apply. But a house where one doorway is open to the public domain and the rest of the rooms are open to the house, like our houses, they are all called one dwelling, and the law of division does not apply to this, only the claim of gudar o agudar. Our teacher, the Rema, wrote in section 14: From the Rosh in a responsum it appears that they divide a house against a shop or a cellar, and it seems to me that the same applies against a room or an attic, for this is called equal use; also regarding the expenses of the building, if it appears to the beit din that it does not damage them so much, they divide. Thus far his words. There is one who disagrees with this [Sma], and such is the primary ruling [Taz and the Gra]. Also our teacher, the Rema, in his book Darkei Moshe, is as one who is doubtful regarding this. And if they have two houses or two other things, where in one of them there is enough for division and in the second there is not enough for division, they adjudicate the law of division in this house that has enough for division, and in the second they adjudicate the law of gudar o agudar or they shall use it in partnership [Shach]. And in every thing in the world, the law of gudar o agudar applies.

Some say that the law of gud o igud only applies to something that they own in essence, but regarding a mortgage or similar cases where they are destined to collect their money, one does not judge this with gud o igud; rather, they divide the money. Our teacher, the Rema, wrote: And it seems to me that if they use the mortgage, it is like a rental, regarding which it has been explained that the poskim disagree. Thus far his words. And some say that even according to the opinion of the Rambam that in a rental there is the law of gud o igud, nevertheless, in a mortgage there is no law of gud o igud since they stand to receive the money, and regarding money there is only the law of division [Sma]. And to this the great later authorities agreed [Taz and Shach]. And all the more so regarding a promissory note, there is no law of gud o igud [ibid.]. And it seems to me that regarding a promissory note, if it remains in the hands of both of them, it will not come to collection because each one will rely on his fellow; whereas when it is in the hand of one of them, if the beit din sees that this is the case, one can compel his fellow with gud o igud, and the same applies to all pledges [it seems to me].

Some say that we do not say "gud o agud" except with the immediate giving of money, but if he said "gud and I will wait for your payment for thirty days" or "I will bind and you wait for my payment for thirty days," we do not listen to him, because he can say to him: "I am comfortable with you and you are certain that I will pay you, but you are more difficult than I, and I do not believe you." And specifically when it appears to the beit din that the truth is so, but if he came only with a mere pretext to delay the "gud o agud," we do not listen to him [it appears to me]. And some say that if Reuven says to Shimon "gud o agud" and Shimon replied "I will bind, and give me a time of thirty days for payment," we listen to him even though Reuven gives money immediately, for in every place we give time to the defendant. But to Reuven we do not give time, for since he is the claimant, when he has money let him claim then; and even if he is a secure man, not like what we wrote that the reason is because he does not believe him [so it appears in the Tur, section 30, that the Ramah disagrees with the Rosh]. And even if the claimant says: "You chose to bind and we gave you time, and know that if you do not bring the money at the time we set, it shall remain before me in this purchase," we do not listen to him, and even if he wants now to deposit money in beit din on this condition; rather, if the defendant does not bring it by the time, the "gud o agud" is void and they perform "gud o agud" anew, and on the second time the claimant can say so, for if not so, there is no end to the matter [it appears to me]. And if the claimant claims "gud o agud" and the defendant replied "gud," and the claimant retracted and said "I do not have cash," and the "gud o agud" was voided, and after a time the claimant returned to claim "gud o agud" and he has cash, and the defendant answered "I will bind and give me time," we do not listen to him, for there is proof that he is merely stalling, for behold, in the first time he replied "gud," which proves that it was not his will to retain it for himself, for he did not know that the claimant did not have cash and nevertheless he said to him "gud"; therefore, either he gives money immediately or the claimant shall bind. But when the claimant said at the beginning of his words "gud o agud and give me time," even though the defendant replied to him "gud and give cash" and the "gud o agud" was voided, and after a time the claimant claimed "gud o agud," the defendant can reply "I will bind and give me time," for that which he said previously "gud" is no proof that he did not want to retain it, for behold, he did not need to reply to him at all since he said "give me time," and as I wrote [this appears to me to be the explanation of the words of the Ramah in the Tur, and see in the Netivot HaMishpat and examine carefully].

As long as they have not performed a kinyan on the god o agod, each of them can retract. For example, if the claimant sued his partner for god o agod and the defendant chose one of them, the claimant can retract and say, "I will remain in the partnership as at first." And similarly, the defendant can retract from god to agod or from agod to god as long as they have not performed a kinyan between them [Tur]. However, to remain in the partnership is not within the power of the defendant since the claimant claims god o agod. And similarly, to raise the price from what they fixed is not within their power; even though they can retract from god to agod or the claimant can retract and remain in the partnership, nevertheless, to change the price is not within their power unless both of them agree to change it [Sma], for regarding the fixing of the price, it is like the conclusion of a sale and neither of them can retract. And even when the claimant retracted and they remained partners, and after some time they were aroused again with a claim of god or agod, neither of them has the power to change the price unless a change occurred in the object from then until now [Netivot HaMishpat]. And even when they divide by time, such that this one uses it for a year and that one for a year, a kinyan is effective, for the usage of the time is like the consumption of produce in a field, and why should a kinyan not be effective?

In siman 289 it will be explained regarding one who left behind adult and minor orphans and the adults wish to divide the inheritance, that beit din appoints an apotropos for the minors and they divide. And in a case where the law of division does not apply and the adults wish to exercise the law of gud o igud, there is one who says that beit din also appoints an apotropos for the minors and they adjudicate the law of gud o igud on their behalf. And there are those who say that this is impossible, for the apotropos is not permitted to sell the property of orphans when it is not for the need of the orphans, as is written in siman 290, and it is impossible for the apotropos to say "gud," and since there is no "gud" there is also no "igud." However, if the beit din sees that if they remain together until they grow up a loss will reach them, they have the power to exercise gud o igud, for you have no greater need of the orphans than this, and they can also say "gud" [it appears to me]. And the division of sacred scrolls will be explained with the help of Heaven in siman 173.