Siman 176

Partners who join together in a business—by what is the partnership established so that they cannot retract? It is the opinion of the Rambam, of blessed memory, that they require a formal kinyan. For he wrote in chapter 4 of Sheluchin VeShutafin: Partners who come to join together, the partnership is not finalized by speech, to say that if one said "come and let us partner together in such and such" that they cannot retract; and it is not established except through a kinyan. And since it requires a kinyan, each and every thing is established as a partnership according to its specific kinyan. Thus far his words. Therefore, if they partnered with items that are extant, such as produce—where the business of the partnership was that this one would bring his produce that is placed with him and this one would bring his produce that is placed with him and they would sell them in partnership—or other movables or animals that are extant, the kinyan appropriate to each one is effective, such as hagbahah and meshikhah, and likewise kinyan chalupin. And once they performed a kinyan from their hands via kinyan sudar that this one would bring his merchandise that is with him and this one would bring his, they have become partners in them. Likewise, if they mixed the produce together or the movables, and they were equal without distinction in a manner that after they were mixed it is impossible to recognize them and separate this one's from that one's, it is considered a kinyan. And even though to acquire through this would not be effective if the location was not fit for a kinyan, such as in a reshut harabim, nevertheless regarding a business partnership—where one does not need to acquire the produce of his fellow but rather that they should partner so it belongs to both of them—since they mixed them for the sake of partnership, they have indeed become mixed and partnered, and this is a complete kinyan for partnership. However, with coins, mixing is not relevant and is not a kinyan for coins. Likewise, if they rented a place in partnership and this one placed his jug and this one his barrel in which they partnered, they have indeed become partners in them. And even though in a courtyard of partners they do not acquire from one another except by placing into the vessel of the buyer, as written in siman 200, nevertheless regarding the matter that the item should be in partnership, it is a complete kinyan [Ktzot HaChoshen], unlike one who disagrees in this. For the reason that a courtyard of partners does not facilitate one acquiring from his fellow without his vessels is because it has not left the domain of the partners; but here, the essence of the acquisition is that it should be in partnership, and the partnered location acquires the movables so that they shall be in partnership.

And if the partnership was with money, such that this one places a maneh in the business and that one a maneh, a kinyan sudar is not effective, for currency is not acquired through exchange. The Rambam wrote there that the partnership is not established through a kinyan, for even if they performed a kinyan from both of them that each one shall bring his coins and partner with them, and they wrote a deed regarding this and witnesses testified, it is not effective; rather, it is necessary that each one bring his coins and they place the coins of both of them in one pouch and both of them lift the pouch. Thus far his words. And that which he did not write that each one should perform a meshikhah with the coins of his fellow is because this would not be effective at all for the partnership, for if this one acquires the coins of that one and that one the coins of this one, there is no kinyan of partnership here. Therefore, if each one pulled or lifted the coins of his fellow for the sake of partnership, it is effective [Tur]. And the Rambam, who wrote that they should both lift the pouch, wrote in a concise manner that they should perform the kinyan together, and this is impossible without a pouch and the lifting of both of them; but that each one should pull the coins of his fellow for the sake of partnership, even the Rambam admits that it is effective. And the Rambam, of blessed memory, concludes: The general rule of the matter is that in all the ways that a buyer acquires, in those same ways partners acquire from one another the money placed between them to partner therein. Thus far his words. And with the mixing of produce and a place of partnership, one acquires in partnership even though regarding an acquisition from his fellow it would not have been effective, as has been explained.

And according to this, if the partnership was not made with money or ready-to-hand movables and produce, but rather they entered a partnership to take merchandise on credit and sell them, or to perform some labor in partnership, there is nothing with which to effect a kinyan such that they would be unable to retract, for a kinyan is not effective as it is a thing that has not yet come into the world. And so wrote the Rambam there: Craftsmen who entered into a partnership in their craft, even though they performed a kinyan from their hands, they are not partners. How so? Two tailors or two weavers who stipulated between themselves that whatever this one or that one earns in his labor shall be between them in partnership, there is no partnership here at all, for a person cannot transfer ownership of a thing that has not yet come into the world. But if the tailors were to take the garments themselves and sew them and sell them, or the weavers take the warp and the woof from their money and weave and sell, and they entered into a partnership with the money with which they purchase, behold these are partners, and everything they profit in the wages of their labor and their trade shall be divided equally. Thus far his words. For since they performed the proper kinyan with the money, they remain in partnership, and everything that is done with this money belongs to the partnership. And according to the opinion of the Rambam, the partnership is only in that which they purchase from the partnership money, but if one purchases on credit or for money that was not mixed into the partnership, it belongs to him alone.

But the Ra'avad, the Rashba, the Rosh, and the Tur disagree with him and hold that a partnership is not similar to buying and selling, for there is no need to acquire the money or the movables; rather, he subordinates his person to his fellow to engage in the business, and his fellow subordinates his person to him. This is like a laborer and a contractor who subordinate their persons for work, and a kinyan sudar is effective even for something that has not yet come into the world, for the subordination of the person is effective for everything, as I wrote in siman 60. And the opinion of Rabbeinu Tam, our teacher Meshullam, the Ittur, and Maharam of Rothenburg is that even a kinyan is not necessary at all, even for something that has not yet come into the world; rather, everything they stipulate with one another is established through mere speech, for a laborer does not require a kinyan, and through that benefit of subordinating themselves to one another, they fully resolve and subordinate their persons for the entire duration of the partnership they stipulated between them, and neither of them can retract. Maharik in shoresh 181 agreed with this approach as practical halacha, and so it appears from the words of our teacher, the Rema. However, some say that this applies to what they have already profited, that they are not believed to say they retracted, but regarding the future they can retract, and after they retract the partnership is nullified; for since we compare it to a laborer, does a laborer not have the power to retract at any time he desires? And the reason for the previous opinion is because it is not similar to a laborer, for regarding a laborer the reason is because "the Children of Israel are servants to Me" and not servants to servants, but regarding partners, just as he subordinates himself to his fellow, so his fellow subordinates himself to him, and neither is a servant to his fellow more than his fellow is to him [Maharik ibid.]. Furthermore, partners are more similar to a contractor than to a laborer, and regarding a contractor it will be explained in siman 333 that if they performed a kinyan he cannot retract. Therefore, even according to this opinion, if there was a kinyan they cannot retract until the conclusion of the partnership term they established [it appears to me]. And even according to the Rambam, who requires a kinyan as in buying and selling, this is only at the beginning of the partnership; but when they performed an effective kinyan at the beginning of the partnership or afterwards, whatever specific details they stipulate are acquired through mere speech without a kinyan [Beit Yosef].

The Tur wrote that even if they did not perform any kinyan, but rather formed a partnership and began to conduct the business of the partnership to buy or to sell, it appears that it is effective. Thus far his words. For also regarding guardians, once they have begun the work, they cannot retract, even according to the one who holds that meshikhah is not effective regarding retraction [Bava Metzia 99a]. Consequently, the beginning of work is superior to a kinyan. However, some say that this is specifically when they mixed the money together and purchased from the partnership funds, for then they cannot retract even regarding the future until the time they initially established; but without this, they can retract regarding the future [Sma]. And some say that the primary kinyan is the beginning of the business, and even if each one purchased with his own money, they cannot retract until the conclusion of the time [Taz]. And specifically when both of them began, but if only one began the work, this is not a kinyan [it appears to me]. And according to this, in the opinion of the Tur, there is no distinction between the past and the future that we explained in section 4, since the beginning of the business constitutes a complete kinyan.

That which the Rambam wrote, that a document is not effective regarding money, this is specifically when it is written in the document that "so-and-so and so-and-so entered a partnership through a kinyan" and the like. However, if they wrote in the language of obligation, that they obligate themselves to engage in a partnership business, it is a valid kinyan [ibid.]. And even though movable property is not subject to a document regarding kinyan [Bava Kamma 79b], nevertheless, when he subordinates his person in a document and obligates himself, it is effective for everything, as I wrote in siman 60. But without an obligation and subordination of his person, even though an oath is written therein, this is not a kinyan, only an obligation from the perspective of the oath; and there is a practical legal difference for several matters, as I wrote in siman 209 [ibid.], unlike the one who disagrees on this. However, even when they came before the witnesses and accepted upon themselves that they shall be partners, the witnesses may not write until both of them command to write, or they perform a kinyan sudar [Sma]. And when they perform a kinyan sudar, they may write in whatever language they desire. It emerges that there are many types of kinyanim in a partnership business: kinyan sudar is effective for everything and they cannot retract until the time they established; and so too a document in which a kinyan or an obligation of the person is written, the law is so. And a verbal agreement without a kinyan is effective for what they engaged in regarding the past and not regarding the future according to one opinion, and so ruled one of the great later authorities [Netivot HaMishpat]. And if they performed a handshake or an oath, they are obligated to fulfill it from the perspective of the oath or the handshake until the end of the time they established, but this is not a kinyan. And according to the opinion of the Tur, the commencement of the business is a complete kinyan until the end of the time they established; therefore, according to his opinion, even without a kinyan there is no difference between the past and the future, and only before the commencement of the business can they retract, but once they have started, they cannot retract. And the opinion of the Rambam has already been explained [according to the Shach, subsection 8, even with a kinyan they are able to retract regarding the future, and according to this, what I wrote is not necessary; but from our teacher, the Rema, it does not imply so, and so wrote the Netivot HaMishpat, and so it appears from the Maharik there; and examine this carefully].

And all that we have said applies specifically to two who entered into a partnership and both are occupied in the partnership, and therefore their persons are liened to one another. However, one who gives money or movables to his fellow as an iska and stipulates that he shall give him a portion of the profit that will come to him also from another place, it is nothing more than a mere gift and is not acquired except through a complete kinyan. For it is understandable regarding the iska itself that he is liened to labor, as is written in Yoreh Deah siman 177, but regarding that which does not belong to the iska, by what is he liened? For their law is not like partners, and this requires a kinyan; and kinyan sudar is not effective as it is a davar shelo ba l'olam, and only a deed of personal lien and obligation is effective [it appears to me]. And one who lent money to his fellow and said to him, "Let them be in your hand for half-profit," and they were lost to him by an ones, he is liable for anesim as at the beginning, for he was not removed from their guarding by mere speech alone. And it is not similar to mechilah which does not require a kinyan, for this is not a mechilah. And there is no remedy for this except that he should hand the money back to him, for kinyan sudar is not effective with money; and when he receives it back from him under the law of half-profit, such that half is a loan and half is a deposit, he will not be liable for anesim on the half that is a deposit.

From what has been explained, that a partnership venture does not require a kinyan for the past according to most poskim, and according to the opinion of the Tur if they began the work they cannot retract even regarding the future, we have learned regarding the custom of merchants: when they stand to purchase some acquisition or to receive some work or venture, and they agree among themselves that one shall receive the venture and give the others some profit so that they do not ruin the acquisition of the venture for him, that the matters are established with mere speech. This is because it is like a partnership venture, and when this one received the venture, it is considered the beginning of the venture in such a case, and a retraction in this is considered like a retraction on the past. And even though there is one who hesitated regarding this, nevertheless, it appears to me that this is the primary law, and such is the fixed custom among merchants who fulfill their words in this without any kinyan, even when they did not deposit securities for this, and so one should instruct.

Partners who appraised their produce or their movable property and entered into partnership with them, if it became known that they did not appraise properly, they have the law of ona'ah against one another. And even when they mixed them without an appraisal and conducted business with their value and did not come to an accounting until after some time, we do not say that since they mixed them without specification and without an appraisal they forgave one another and shall divide equally; rather, they calculate how much they were worth at the time they entered into partnership, and they calculate the principal according to their value then, and the profit or the loss they calculate as will be explained before us with the help of Heaven.

In the Gemara [Ketubot 93a] it is stated: Two who placed into a pouch, this one a maneh and this one two hundred, the profit and the loss are to the middle, and they do not calculate according to the money, since they entered into partnership without specification. And even if they bought an ox for plowing and it stands for slaughtering, it is to the middle; according to the explanation of Rashi when they slaughtered it, and according to the Rif and the Rambam when they sold it alive. And when they bought it for slaughtering and it stands for slaughtering, according to the opinion of the Tosafot there, they divide according to the money, and according to the Rosh and the Ran, even in such a case it is to the middle. And we say there in the Gemara that when they did not spend the money on merchandise, but rather the money itself increased or decreased in value in the manner of currencies that rise and fall in price, the profit and the loss are according to their money. And from this Gemara, the Rosh and the Ran and other Rishonim ruled that in all matters of commerce, when they did not stipulate the portions beforehand, the profit and the loss are to the middle, even though this one placed more money than that one. And they wrote the reason based on the Yerushalmi, that sometimes one of the partners is more sharp in commerce than the second; and since this one who gave more money did not stipulate that he would receive a greater portion of the profit than the second, he considered and accepted that they would divide the profit equally, because he knows that his partner is more sharp in this commerce than he is. And so too regarding the matter of loss, the one who placed less, since he did not stipulate that he would suffer less in the loss, presumably because he imagined that through the abundance of money there would be much profit, and the gain is near and the loss is far, and he took upon himself to suffer half the loss because of the doubt of the great profit [Levush]. Therefore, in all types of commerce, the profit and the loss are equal, except when they did not spend the money at all and the currencies increased or decreased in value, they divide the profit or the loss according to their money. And this is the opinion of most of our teachers.

The Rambam, of blessed memory, wrote [there]: Partners who placed into a pouch, this one a maneh, and this one two hundred, and this one three hundred, and they all engaged with the money without specification, and they lost or gained, the profit or the loss is divided among them equally according to their number and not according to the money. And even if they bought an ox for slaughtering, where if they had slaughtered it, each one would have taken from its meat according to his money, if they sold it alive and lost or gained, the profit or the loss is divided equally. In what case are these matters stated? When they traded with the money in which they partnered. But if the money is extant and they have not yet spent it, and they lost or gained because of the currency which the king or the people of the province changed, they divide the profit or the loss according to the money. And if they made a condition between them, everything is according to their condition, whether in profit or in loss. Thus far his words. And so wrote the Rif, and they transcribed it in the Shulchan Aruch, section 5, and they did not bring any dissenting view. And the commentators wondered about our teacher, the Rema, that he did not bring the opinion of the Rosh, and the Ran, and the Tur, which is also the opinion of Ri, the author of the Tosafot.

It appears to me that the Rif and the Rambam do not disagree at all with the previous opinion regarding the law, and they also hold that in all types of merchandise they divide equally. That which they wrote—that if they bought an ox for slaughtering and slaughtered it, they divide according to the money—is because they hold that this is not in the category of merchandise at all, as they did not buy it to conduct merchandise with the meat, but rather they need the meat for themselves to eat. Therefore, they did not need to stipulate from the outset regarding this, and this is like two people who bought meat in the butcher shop, where it is obvious that they divide according to the money. But if they truly slaughtered it to sell the meat, they divide equally. The Rosh and the Ran explain that the meaning of "for slaughtering" refers to merchandise to sell the meat, and therefore they ruled that even with an ox for slaughtering and they slaughtered it, the profit is divided equally. They do not disagree regarding the law at all, only in the interpretation of "for slaughtering." Therefore, our teacher, the Rema, did not comment, for this and that are one and the same. [And with this it is settled that the Tur wrote that Ri, the author of the Tosafot, ruled like the Rosh, yet in Tosafot the opposite is explained, and Tosafot Ketubot is by the Ri. It is also settled that the Ran does not contradict himself in his words, see there. And the difficulty of the Rosh is settled as to why the Gemara did not answer that it deals with where they slaughtered it, and the Maharsha wrote that it is no novelty at all; and so understood the Levush who mixed the matters, and the Sma wondered at him, and examine this carefully].

But our teacher, the Beit Yosef, and the Acharonim explained the words of the Rif and the Rambam in another manner: that the sages only said "the profit is in the middle" regarding merchandise that is impossible to divide, such as if they bought a precious stone, where if not for the small amount of money of the second person, the first would not have had the ability to buy it; such as an ox for plowing, or if they sold it alive, for it is impossible to buy less than a whole ox, and the owner of the greater amount of money needed the smaller amount just as the smaller needed the greater. However, merchandise that is possible to divide, such as grain and fruit and all divisible merchandise, the profit is according to the money, since it is possible to divide them. And in the Yerushalmi, chapter 4 of Bava Kamma, there is a dispute regarding this, and in the Yerushalmi, chapter 10 of Ketubot, it is explained according to the opinion of the Rosh, see there. And with this that has been explained, that regarding the rise in value of the money or its loss they divide according to their money, all the more so if they entered a partnership with fruits and they are still in existence, but they rose in price or fell, that they take according to their money, for they did not sell them and they themselves stand to be divided from beginning to end [Sma].

And one of the great later authorities brought as a ruling that if they entered into a partnership together to engage in merchandise and to exert effort in its sale, the profit is split equally, since the owner of the lesser capital is obligated to exert himself just like the owner of the greater capital and the effort is equal, and therefore the profit and loss are also equal. And even if they bought an ox to exert effort with it to fatten it, improve it, and slaughter it, as long as the effort is incumbent upon both of them equally, the profit and loss are also equal. And that which was explained—that when the money is extant the profit and loss follow the money—if the merchandise is something that is impossible to divide, such as a number of pearls fit for sale or a precious stone or an ox and the like, even if the money is extant, the profit and loss are split equally [Netivot HaMishpat]. And in my humble opinion, the primary view is like the first opinion, and all the poskim, also the Rif and the Rambam, hold so according to what I wrote, and particularly since in the Yerushalmi it is explicitly stated so.

There is one who says that even in a case where we said that the profit is divided equally, if a profit arose in the merchandise after the time of division they established arrived, they take according to their monies, for then their partnership that they made previously—because of which the profit was divided equally—is nullified. The same law applies if they changed from what they stipulated at the beginning, even if the change was with the will of both of them, such as if they made a partnership to trade livestock and afterwards their mind changed to trade other merchandise without establishing a time, they also take according to their monies, for the first partnership—because of which it was divided equally—is nullified. And some say that even if they began to buy and sell in the business for an established time and afterwards they changed from their first mind and concluded to engage in another business, even if they had not yet begun the other business, all the profit that arose on the first business after their mind was concluded to change it is according to their monies, for it is as after division. However, if they changed their mind to engage in another business for an established time and began to buy and sell in the other business, the profit is divided equally as in the first business when they did not stipulate the portions; for specifically when they did not establish a time for the new business is the first partnership nullified, and also there is no partnership here in the new business for the profit to be divided equally since they did not establish a time in the manner of partnerships. But when they established a time, the profit and the loss are divided equally [ibid.].

Some say that even in a case where it was explained that the profit and loss are shared equally, if there was so much loss that the principal of the one with the smaller amount of money is insufficient and he must supplement from his home, he is not obligated to supplement from his home. For only regarding the actual money with which he partnered did he intend and accept to be equal in loss with the owner of the larger amount of money, but not to supplement further from his home. Therefore, if this one placed one hundred and this one two hundred, and everything was lost, we do not say that the owner of the hundred should supplement fifty from his home to the owner of the two hundred. And it appears to me that this is only if at the time they partnered the discussion between them was that they would trade only with their cash placed in the business and not to acquire merchandise on credit, for then certainly the owner of the hundred did not have in mind to lose from his home like the owner of the two hundred, as it is impossible to lose more than three hundred. But if they conducted their trade much more than their money and there was a loss of more than three hundred, how can we say that the owner of the hundred shall not lose from his home while the owner of the two hundred shall lose from his home? Perforce, both of them intended and accepted to lose even from their homes. Therefore, even when they lost three hundred, the owner of the hundred must supplement fifty from his home. And a proof for this is from what they ruled in Shulchan Aruch siman 93 section 14, that one is not believed with his oath to extract from the partner from his home; and the commentators asked, behold even without this he does not need to lose from his home? And according to our words it is well, and as mentioned above is the primary rule in law.

And so too, if there was a theft or a loss regarding the money of the partners or their merchandise, the loss is according to the money, even in a place where had they engaged in the trade, it would have been shared equally; for this is like liquid capital, as has been explained, that the profit and the loss are according to their money. And specifically regarding money or merchandise that they placed in the partnership, and therefore some say that regarding merchandise that is impossible to divide, even in such a case the loss is shared equally. And even if they changed from the first business to another business, since it is impossible to divide them, the power of both of them is equal in it for every matter [Netivot HaMishpat]. And in a place where the profit is according to their money, and much profit accrued on the merchandise if they were to sell it little by little, and a merchant happened upon them and they sold him all the merchandise for a small profit, they also divide according to their money [ibid.].

Some say that whenever the profit is not due to exertion and involvement, such as if they bought land cheaply and sold it dearly, even though without the money of the one with the smaller portion the one with the larger portion would not have been able to buy it and they did not stipulate between them how much the profit would be for this one and that one, nevertheless the profit is according to their money since there is not much exertion here [ibid.]. And similarly, in everything where it was explained that the profit is divided equally, this is regarding partners who entered into partnership by their own will; but partners who became so by necessity, such as a firstborn and an ordinary son who inherited a business from their father and there was profit in the business after the death of their father, they divide according to their portions since they did not enter into partnership by their own will [ibid.]. And similarly, if the business of the partnership was such that they would not work together, such as an ox for plowing where this one plows with it one day and that one plows with it one day, the labor is according to their money since one is not toiling for his fellow but rather each one for himself; and even so, if they decided to sell it alive, the profit and the loss are divided equally [ibid.]. And also regarding merchandise where the trade proceeds together and the calculation of the profit or the loss is at the completion of the business, even though they do not involve themselves together but rather this one is involved for a period of time and afterwards the second one is involved, the profit is divided equally.

There is no difference in partnership between whether each one gave money from their pocket or whether Reuven agreed with Shimon that he would assist him in his business and he would give him from this such and such profit, and they profited and took those funds from the profit and placed the earnings from that business or the loss into the business for the middle, just as with cash. Therefore, Reuven who had a debt that was difficult for him to collect and said to Shimon that he should assist him in the collection of the debt and he would have a third, and they did so; and there is no need for a kinyan for this because he is like a hired worker and it comes as the wage for his labor. And afterwards they bought merchandise and did not stipulate the portions, their law is like two who placed into the pocket as has been explained, that they divide, and we do not say that since Shimon did not give from his pocket it is enough that he take a portion of profit according to his money; for since Shimon has a portion in the profit, behold they are his entirely. And specifically that after they collected the debt they afterwards bought the merchandise and said that they are buying in partnership; but if they did not say that they are buying for partnership, but rather after the collection Reuven bought merchandise, even though he bought for the sake of the entire debt and even though Shimon assisted him in the purchase of the merchandise, nevertheless Shimon has no portion in this, for behold he only vowed to him a portion in the collection of the debt and not in what he would profit afterwards. And he only needs to give to Shimon as much as they give as the wage for exertion to one who assists his fellow in the purchase of merchandise like this. And it is not similar to a debt of partners where one of them collected and bought merchandise, where it certainly belongs to the partnership, for there from the beginning the money belongs to both of them, which is not the case here where the money belongs to Reuven, except that he promised Shimon for his exertion in the collection such and such. Therefore, what Reuven profited after the collection belongs entirely to Reuven since they did not speak that it should be for partnership, only it is in the hand of Shimon to collect from him his portion immediately after the collection; but when he did not collect immediately, then the profit that arose afterwards, he has no portion, unless there was profit in the currency itself which rose in value [it appears to me].

Partners who concluded to partner together according to the kinyanim that have been explained, and one brought his money to the business and the other has not yet brought it, nevertheless, if there was a profit, he takes his share as long as he did not retract and say that he will not give. And according to this, Reuven and Shimon who partnered together to lend to a gentile, and Reuven gave his share to the borrower, and afterwards the borrower said that he does not need more, and Reuven said to Shimon that he should give him his share for what he lent, and Shimon deferred him, saying "I do not have it now and I will give today or tomorrow," and in the meantime Shimon passed away, even so his heirs merit his share of the profit, for behold, he did not waive it to Reuven. But if Shimon said that he will not give his share, he has lost his share of the profit, for behold, he deviated from the partnership; and even though Reuven can compel him to fulfill the partnership, nevertheless, when he wishes, he leaves him be and the profit is for himself [Netivot HaMishpat]. However, as long as he did not defer him completely, even though he deferred him a bit, since he did not trouble him to go to beit din, he is still in his partnership and the profit is his, and this one must pay his heirs. But if he said to him "let us go to beit din," even though he emerged from beit din with the ruling that the partnership exists and Shimon must give his share of the money that Reuven lent, nevertheless Shimon has no profit as long as he has not given his share of the money. And the reason is because partners, from the day they concluded their partnership, everything each one does, he does for the sake of the partnership, and he is like the agent of the second partner. And even though the second defers him a bit, since he does not defer him completely, the one engaged in the business does not withdraw from his agency. But when he defers him completely or troubles him to go to beit din, we are witnesses that the one engaged in the business no longer wishes to be his agent as long as he does not give money to the business. And according to this, all the more so when in the middle of a business venture they need money for the business and one has not yet given, if he did not defer him completely, the partnership is not nullified; but if he deferred him completely, it is a deviation and their partnership is nullified until he retracts of his own will and gives his share of the money needed for the business [it appears to me].

Partners have the status of shomrei sachar for one another, and if it was stolen or lost while in the domain of one of them, he must pay the partners according to the law of a shomer sachar. Even though they do not take a fee for guarding, nevertheless, since each one is occupied with the business, each one guards the portion of his fellow in exchange for his fellow guarding his portion. This is specifically when they stipulated so from the beginning, that each one would be occupied with the partnership business. But if the stipulation was that only one would be occupied with the business and the second is not obligated to be occupied, if he acted out of the generosity of his heart and occupied himself, his status is not that of a shomer sachar to be liable for theft and loss, but rather like a shomer chinam, and he is only liable for negligence. And some say that he does not even have the status of a shomer chinam and is exempt even from negligence [Shach], because of the reason that will be explained in section 23. And even if they stipulated that each one would be occupied with the business, their status is not that of shomrei sachar unless, before they began to be occupied, they stipulated that each one would occupy himself for a known time and afterwards the second would occupy himself. Therefore, each one, during the time he is occupied, his status is that of a shomer sachar. But if they all occupy themselves together, such that there is no divided time for each one, their status is not that of shomrei sachar because each one is with his fellow in his work, and they are exempt even from negligence, as written in siman 291. Not only this, but even if they only began to be occupied together—even though each one is occupied in a separate place, only that they began at the same hour [Taz]—and afterwards each one was occupied alone at a specific time, they are exempt, for the exemption of guarding with the owners is at the time of the beginning of the work, as written there. And so too the reverse: if at the time of the beginning of the work they did not act as one, even though afterwards they acted together, they are liable for responsibility, for all of this is a decree of the Torah, as will be explained there.

And if initially one was occupied with it alone and afterwards both were occupied with it together and it was stolen, if it was stolen from the first, he is liable because the second was not with him in his work when the guarding began. And if it was stolen from the second, he is exempt because the first was with him in his work when the guarding began. And some say that the first is not liable for all of the partner's portion except when it was stolen not at the time when both guarded together, but rather after they guarded together they separated from guarding together and the first guarded alone, for then he is liable for all of the portion of the second. But if at the time when both guarded together it was stolen from the first, he is only liable for half of the portion of the second, for when they guarded together the guarding was incumbent upon both of them, and each one, when he guards half, guards his own and his fellow's, and it turns out that he only guarded half of his fellow's portion [Sma]. And specifically when each one guarded half and it was stolen from the first and not from the second, for then he is liable for half of the portion of the second; but if they guarded together and everything was stolen, or even if each one guarded individually but it was also stolen from the second, certainly both of them lost, for even though the second is exempt from guarding the first by the law of shomrim, nevertheless certainly we cannot obligate the first to lose more than his portion, for in this he only accepted upon himself the guarding of his portion when all of it was lost and both of them guarded it [this is the intent of the Sma, subsection 26, and the difficulty of the Taz is settled, and also what was written in the Shulchan Aruch "the first is liable" means when half was stolen, and what the Netivot HaMishpat wrote is very forced, and delve into this].

And this is the reasoning of those who disagree in section 21, that when the condition was that one would engage in the entire business and afterwards the second volunteered to engage, his law is not even like a shomer chinam because it is "safekeeping in the presence of the owners," for the first is with him in his work. And all these laws where we judge the one as a shomer sachar and that he is called "with him in his work" relative to the second, this is specifically when they stipulated so at the time of making the business, that the one would engage alone in the entire business. But when they did not stipulate between them, for ordinarily it is incumbent upon both of them to engage equally, and nevertheless one of them took it and engaged in it alone and it was stolen or lost, his law is not like a shomer sachar relative to the second. And even though the second can say, "my intention was that you alone would engage for a period of time and afterwards I would engage alone, and if so, now your law is like a shomer sachar," for the first can say to him, "since there was no condition between us, and also you did not tell me that afterwards you would engage alone in exchange for what I engaged alone—for then I would have been more careful according to the law of a shomer sachar—and since I only did so from the generosity of my heart, my law is only like a shomer chinam" [Mordechai, chapter 3 of Bava Batra]. And although there are those who disagree on this and hold that his law is like a shomer sachar [ibid.], nevertheless this is the primary ruling [Shach]. And according to those who disagree in section 21, he is not even a shomer chinam. However, it appears to me that in such a case, even according to those who disagree, his law is like a shomer chinam, for specifically when the condition was that one alone would engage and the second volunteered afterwards from the generosity of his heart, his law is not like a shomer chinam because the first is with him in his work. But at the beginning of the business, when he volunteered to engage alone, granted that he is not like a shomer sachar, nevertheless why should he be exempt from being a shomer chinam? For the second is not with him in his work. And if it is because ordinarily it is incumbent also upon the second to act, and if he were engaging he would be "with him in his work," nevertheless it is not proper to exempt the one engaging for this reason, for this exemption is a decree of the Torah, and as long as he was not with him in his work, one should not exempt him for the reason that it was proper for him to be with him in his work [and proof is from Maharik, shoresh 155, and according to this all the poskim will be correct, and also the intention of the Rema in section 8 is possible specifically at the beginning, and the difficulties of the Shach and the Netivot HaMishpat are settled. And in siman 401, where they exempted the damaged party because he entered only because of the damage, but a partner surely must engage and they are not fastidious with one another, and his law is rightly like a shomer chinam, and delve into this].

If at the beginning both of them were engaged together, and afterwards they agreed between them that only one would engage in the entire business and it was stolen from him, there are those who say that he is liable to pay his partner half of his share. This is because regarding half of his share, it was "safekeeping with the owners" from the beginning of the business, as he was obligated to guard half, and regarding this half the safekeeping did not change. It is only regarding the second half, which was newly established between them—that what was the obligation of the second would now be the obligation of the first—that there is no "safekeeping with the owners," and therefore he is only liable to pay a quarter share [Netivot HaMishpat]. And if at the beginning of the business they stipulated that this one would engage for a month and afterwards that one would engage for a month, and so they would always alternate month by month, and Reuven engaged in Nisan and Shimon was supposed to engage in Iyar, and Shimon hired Reuven to also engage with him in Iyar, and it was stolen from Shimon's possession from the partnership, he is exempt because Reuven was with him in his work at the beginning of his month. And if afterwards in the month of Sivan, which is Reuven's turn, he hired Shimon to engage with him and it was stolen from Reuven's possession, he is liable to pay Shimon half of his share that Shimon had in his safekeeping. This is because the half that Reuven guards, in which there is Shimon's share, did not change from what it was in the month of Nisan when it was upon Reuven to engage in all of it, and it is not "safekeeping with the owners." The change is regarding the second half, and in that half Shimon is with him in his work and he is exempt from it [ibid.]. And in section 26 more will be explained regarding this.

Our teacher, the Rema, wrote in section 8 that if the partnership was completely divided and there remained in the hand of one of them funds to pay a gentile, and they were lost or stolen from him, his fellow is not obligated to pay him for the loss. However, if there also remained for the second partner from the partnership, it is a case of safeguarding in the presence of the owners, and the loss is upon both of them. Thus far his words. And the reason that he is liable for the entire loss is because his law is like a paid safeguarder. Therefore, this law applies only if at the beginning of the business the condition was that this one would engage in it alone, for then his fellow was not with him in his work [Taz]. And that which he wrote, "but if there remained for the second etc.," the same applies in such a case and it was not meant exclusively; or even if both of them were engaged in it at the beginning, only after the conclusion of the business they agreed that the money should remain in the hand of one of them and he takes payment for his effort, or because he did not trust his fellow with the money, or so that until the payment he may use the money—and this does not belong to the business of the partnership, for it is like a new matter, and therefore his law is like a paid safeguarder [Netivot HaMishpat]. And this general rule must be known: that in a place where the partner keeps it for himself by way of doing a favor for his fellow, in that he takes the effort upon himself out of the generosity of his heart, his law is at most like an unpaid safeguarder, as is written in section 21 and 23. And his obligation is not like a paid safeguarder except when he acts according to an obligation that they agreed upon from the beginning of the business, or that he takes payment for this, or that he does not trust his fellow, or that he uses the money, and also that he does not have the exemption of safeguarding in the presence of the owners, as has been explained. And in any place where he is obligated to pay his fellow, he does not deduct for his fellow the profit that his fellow already received from the business [Maharik, Shoresh 104], for since he already received the profit, this has no connection to the theft, and this one cannot say, "Behold, there is no profit here at all since it was stolen" [ibid.]. However, if they have not yet divided the profit and the principal and the profit were stolen, he only has to pay the principal even if his law is like a paid safeguarder; for how could he pay him the profit as well, behold everything was stolen and there is no profit here [as is implied there]. And if the profit alone was stolen and the principal is intact, it requires deliberation whether his law is like a paid safeguarder also regarding the profit, or perhaps regarding the profit his law is not like a paid safeguarder [from the wording of the Maharik it is implied that he is exempt from theft; see there].

An incident occurred regarding Reuven who hired a horse from Shimon for one month, and after several days Shimon himself was hired to him along with the horse for two months, and on the way the horse was stolen from Reuven's possession. They ruled that Reuven is exempt because Shimon was with him in his work. Even though the beginning of the hiring was without the owners, nevertheless, since afterwards an additional month of hiring for the horse was added at the time Shimon was hired to him, it is considered like a new hiring and it nullifies the previous hiring that was without the owners [Taz]. According to this, also the law that was explained in section 24—where initially both of them were occupied and afterwards they agreed that only one would be occupied alone, where we wrote that the previous half is considered safeguarding with the owners—according to this opinion he is liable even for the previous half, because when they changed and agreed that only one would be the one occupied, it is like a new matter [it appears to me]. And there is no reason to distinguish between a change in time and a change in condition [from Ketubot 99a "there are those who say" etc. is proof for the first opinion, and examine this]. And a general principle must be known regarding safeguarding with the owners: that the owners must be with him in his work at the time of the beginning of the occupation and the safeguarding. But if the work of the owners concluded at the time of the beginning, even if according to the time they set for the occupation and the safeguarding the time had already arrived while the owners were with him in his work, nevertheless, since it was not yet in practice, this is not safeguarding with the owners and he is liable like a shomer sachar [Netivot HaMishpat], not like the one who disagrees in this.

Brothers who inherited from their father, as long as they have not divided and are partners in their father's property, as long as they have not protested against one another, they are all sustained and provided for from the common estate, even if one's expenses are greater than the other's, as written in siman 286. And even according to the opinion that disagrees there, that is specifically when there remained adults and minors, where the minors lack the legal capacity to protest; but when they are all adults, as long as they have not protested, they are all sustained and provided for from the common estate [Sma and Taz], and more will be explained regarding this there with the help of Heaven. And this applies when things are unspecified, but each one has the power to protest this and demand that each one spend on his own portion for his food and sustenance, in eating and clothing and all necessities. And if they did not protest and they bought for themselves after their father's death clothing for them and for their sons and daughters and wives, even though we said that everything is from the common estate, nevertheless, when they come to divide, they appraise the clothing upon them according to their value at the time of the division. And if they wore out or were lost, they do not account for them, for thus our sages, of blessed memory, estimated their intent, that they forgive one another in such a case as long as they did not protest. And this refers to what is upon them, but the clothing they bought for their sons and daughters and wives, they do not appraise them even when they are still in existence, for our sages, of blessed memory, estimated their intent that they forgave one another, as it is a disgrace to bring wives and sons and daughters to beit din to appraise the clothing upon them. Therefore, this law applies only to weekday clothing, but Shabbat and Yom Tov clothing that each one made for them after their father's death, they bring the clothing to beit din and they appraise them, for the appraisal is on a weekday and the clothing is not upon them. And all the more so regarding other household vessels that they bought after their father's death, and likewise jewelry such as precious stones and pearls and other jewelry that they bought after their father's death, that they appraise them even though they wear them on their bodies, for there is no reason to assume that this too would be from the partnership [it appears to me]. And the eldest of the brothers, when he conducts business with their father's property, they do not appraise his clothing that he made for himself, for our sages, of blessed memory, estimated their intent that it is pleasing to the brothers that he wear honorable clothing so that his words will be heard in the business dealings, for honorable clothing honors a person so that he will be respected. For if we were to say that they should appraise them at the time of division, he would not want to make them from his own and would go in degraded clothing, and the business would suffer [Beit Yosef siman 288]. And also Shabbat and Yom Tov clothing that he made, they do not appraise if it appears to the beit din that he needed them for the benefit of the business; but if there was no benefit to the business in this, they appraise them [it appears to me, see Shach subsection 20]. And the Shabbat and Yom Tov clothing of his wife and sons and daughters, they appraise in any case [and what was written in the Tur and Shulchan Aruch, "even in what he bought for himself," is not precise, and they took the language of the Gemara Bava Kamma 11b, and there it is well-settled according to the context, see there, but in Bava Batra 139a it is not so]. And all this is when the brothers did not protest against him, but initially they can protest against him, for since our sages, of blessed memory, permitted it to him for their own benefit, therefore when they do not want it, the power is in their hands.

The Rambam and the Tur wrote that all this which has been explained regarding brothers, the same law applies to other partners who are not brothers. Our teacher, the Rema, wrote in section 9: However, it seems to me that we follow the custom in this matter. Thus far his words. The explanation of his words seems to me to be that regarding brothers, ordinarily, as long as they have not protested, they are sustained and supported as one, unless they protested or the custom is the opposite. But regarding partners, it is the opposite: specifically in a place where there is a custom that partners in a business are sustained and supported from the partnership purse even though one has greater expenses than the other, there, as long as they have not protested, the law is like that of brothers. But ordinarily, where it is not known that the custom is such, this law does not apply even without a protest [see Levush and Sma; and according to what I have written, it is simply settled, and examine this carefully].

Two who have partnered in a business: if both are laboring together in one place, one may not do anything new in the business without the knowledge of his fellow, since he is able to ask the opinion of his fellow. And if he acted without asking his opinion and caused damage, the loss is upon him; but if there was profit, it belongs to the partnership, for every partner is the agent of the other, and only if he caused damage of his own mind is he not his agent to cause damage. And if one labors alone, or even if both labor but they are in separate locations and one cannot ask the opinion of his fellow: if there are conditions between them regarding what each one shall do in the business, neither may deviate from what they conditioned. And if he deviated and there was a loss, the loss is upon him alone; and if there was profit, it is divided in the middle. And if they partnered without specification—that is, they formed a partnership to trade in wheat or barley or other types of merchandise and did not condition the details, and they do not labor together such that it would be possible to ask one another, or only one is the laborer and the second is not present at the business—he shall not deviate from the custom of the country according to the conduct of merchants in that merchandise. And if the way of merchants is to sell it here, he shall not take it to another place, nor shall he partner in it with others without the knowledge of his partner. And if one partner received this business from his fellow as an iska, and in a manner that he should labor only in this merchandise, he shall not labor in other merchandise [Sma]. And likewise with two partners who labor in their business, and at the time they formed the partnership it appeared that their intention was that they should not labor in other merchandise, one may not labor in other merchandise without the knowledge of his partner [see Shach]. And he shall not deposit the merchandise in the hands of others without the knowledge of his fellow, unless they conditioned at the outset that there is permission for one of the partners or for the laborer to deposit in the hands of whomever he wishes, or that the custom of merchants is such to deposit in the hands of such a person according to the nature of the commerce. And likewise, if the one with whom he deposited is a person with whom the second partner is also accustomed to deposit, he is exempt if it was stolen or lost, as has been written in siman 291. However, if through this there was damage to the business, such as if the bailee was not in his house at the time of the sale, he is liable to pay him for the damage [Netivot HaMishpat].

And regarding the matter of selling on credit, if it is the way of this merchandise to be sold on credit, and even if sometimes they sell it for cash, nevertheless, since they also sell it on credit, if he sold it on credit and it was lost, he is exempt, since he acted according to the way of merchants. And regarding a thing whose way is always to be sold on credit, even if he gave credit to a gentile and it was lost, he is exempt [Netivot HaMishpat]. But merchandise whose way is not to be sold except for cash, and even if there are some merchants who sell occasionally on credit, nevertheless, since most merchants do not sell except for cash, he shall not give credit without the knowledge of his fellow. And if he transgressed this and suffered a loss, he is liable to pay. And our teacher, the Rema, wrote in section 10 that if he warned him not to give credit, even regarding a thing whose way is to be sold on credit, he is liable to pay. Thus far his words. And it appears to me that the warning is only effective at the time of forming the partnership, but afterwards, since they conducted the business without specification and the way of the merchandise is to be sold on credit, he does not have the power to protest, unless there are those who sell on credit and those who sell for cash. And so too in every matter where there is a doubt of loss, such as transporting the merchandise across seas and rivers, if that is the way of that merchandise, if he warned him at the time of forming the partnership that it is not his will to do so and the second party transgressed this and the merchandise was sunk, he is liable to pay; but afterwards he cannot protest against him [as is apparent from the Beit Yosef and from the Gra, who compared this to one who gives money for wheat and he took barley]. And there is one who says that even afterwards he can protest regarding his portion not to give it on credit or to transport it on the sea [Netivot HaMishpat], and it requires further study for the law.

There is a great principle regarding the business of partners: as long as one does not deviate from the way of merchants in matters they did not stipulate between themselves, and is not negligent in the conduct of his trade, he may act with his fellow's property as he does with his own, and he collects from his fellow his portion of what he expended even if there was a loss in this [Mordechai, end of chapter 11 of Ketubot]. For every partner is considered like one who descends with permission, and since he descended with permission, his partner must also suffer the loss just as he shares with him if there was a profit. And so too, two brothers who deal with their father's estate, their law is like partners, and he shall sell the merchandise at the time appropriate to sell [ibid.].

And if he transgressed and acted without the knowledge of his fellow, and afterward informed him and he agreed to his actions, such that he said to him, "I agree to what you did," and a loss occurred in this matter, the one who acted is exempt in every case. But if he remained silent, we do not say in this case that silence is like admission. However, if before he acted he said to him, "I want to do such and such," and he remained silent, silence is like admission [Sma], for he relied on his silence and acted. And these matters do not require a kinyan, for since he agreed with him, it is like a mechilah, and a mechilah does not require a kinyan [ibid.]. And all the more so before the action, even if he remained silent, for since it is like admission, he acted with permission. And so too if he agreed to his actions even in writing, where he wrote to him, "I agree to all that you have done" or "to all that you will do," it is like speech [Shach], for through his writing we know his mind. And so too if even not in his presence he said, "I agree to all that my partner did," it is like saying it face to face [it appears to me].

If one of the partners deviated from any of these matters, such as if he went to a place where he was not supposed to go, or set sail at sea when he was not supposed to set sail, or sold on credit when he was not supposed to sell according to the law, or extended more time to a debtor, or traded in a different commodity, or entered into a partnership with another, and similarly anything like this where he did what he was not supposed to do and acted without the permission of his partner, any loss that occurs because of this, he is obligated to pay alone. And if there was a profit, the profit is split in the middle, for he profited with the partnership funds, and even when he says "I am doing this for myself," it is nothing [Netivot HaMishpat]. But regarding a loss, his fellow partner can say, "If you had not deviated, there would not have been a loss." And when he sold on credit and it was lost, he only needs to pay according to the price that they sell for in cash [ibid.]. And similarly, when he extended time to a debtor and in the interim his status declined and the debt was lost, he only needs to pay according to what the debt was worth for sale at the time the first deadline arrived. And if he clarifies that even if he had not deviated there would have also been a loss, he is exempt, provided that he clarifies this based on merchants with an assessment that appears correct to the beit din [as is implied from the Maharik brought by the Beit Yosef].

Therefore, one who gives money to his fellow in the manner of a partnership to buy wheat with them for merchandise, and he went and bought barley, or to buy barley and he bought wheat, if they decreased in value, they decreased for him alone, and if they increased in value, they increased for the middle, because of the reason that has been explained. And so too, if he went and entered a partnership with another using the partnership money, if he lost through this, he lost for himself, and if he profited, the profit is for the middle. And if he entered a partnership with another using his own money that he has of his own beyond what he has in the partnership, even though in this too he did not act properly if the condition between them was not to engage in another business as I wrote in section 29, nevertheless, both the loss and the profit belong to him alone [Levush], for certainly his intention was not for the partnership, as even regarding an agent the law is so, as I wrote in siman 183 [the Gra]. And if they stipulated between them that even if he trades with his own money it shall be for the partnership, everything is according to their condition, and both profit and loss belong to the partnership. And all this is when he gave him money to buy wheat for merchandise, but if he gave it to him to buy for their consumption, the name of partnership does not apply to this, but only as a mere agent [it appears to me, and so it is implied from the wording of the Rif in the ninth chapter of Bava Kamma, see there and examine closely].

In any case where the partner deviated and is liable to pay for the loss, even if both of them began to be occupied together—where he would be exempt even from negligence as written in section 21—nevertheless, in a case of deviation he is liable even in such a case. For deviation is like damaging with one's hands, and the Torah did not exempt "safekeeping with owners" even from negligence except when there was damage through his laziness in the business because he did not guard well and there was damage. However, when he performed a deviation with his hands, he is a complete damager [Mishneh LaMelech, chapter 5 of Shluchin]. Therefore, if the deviation he performed appears to have been intended for the benefit of the partnership, this is not like damaging with one's hands but rather like negligence, and he is exempt in "safekeeping with owners" [Sha'ar Mishpat in the name of the Rif]. And this matter depends on the understanding of the dayan according to the nature of the commerce and according to the circumstances of the time, and it is impossible to specify this matter in writing.

Even if one partner deviated in the business and is obligated to pay for the loss, nevertheless the second partner cannot cancel the partnership because of this; rather, he pays the loss and the partnership remains in effect until the time they established, and not like those who disagree on this. And if he deviated or was negligent in the business with an irreversible loss, the second can cancel the partnership entirely [Netivot HaMishpat]. And so too, if he is prone to ruin the business, we are not to force his partner to remain with him in the partnership until the time they established, for you have no greater "transaction in error" than this. And so too, if they made some partnership and the matter was revealed that one of them was defrauded, he can cancel the partnership, like members of a group who partnered to eat together and it was revealed that one eats much more than his fellows, the members of the group can remove him. However, regarding what he ate until they removed him, he does not need to pay for the surplus that he ate, for as long as they did not remove him, he ate with permission, and only regarding the future can they remove him [Knesset HaGedolah]. And if they stipulated between them that when one deviates or is negligent the partnership shall be canceled, everything is according to their stipulation.

All conditions that partners stipulate with one another are established through speech alone, for since both of them agree to this, they resolve with a whole heart. Similarly, when they nullify any condition, it is nullified through speech alone, since both of them agree to its nullification. And if afterward one transgressed this and deviated and there was a loss, he is liable to pay; and if there was a profit, the profit is split in the middle. Similarly, if one withdraws from the partnership with the agreement of all of them, he withdraws through speech alone and the partnership of this one is nullified [Radbaz]. And even if there was a deed of partnership between them, it is nullified through speech, for this is like a waiver which does not require a kinyan even regarding a deed, as I wrote in siman 241. And even according to the opinion that will be explained there that it is a legal doubt, nevertheless regarding a deed of partnership, all agree that waiver is effective, for the essence of partnership is a lien of the person from one to his fellow, as has been explained. Consequently, when they withdraw from the partnership, the lien of the person from one to his fellow is removed, and each one is in possession of his own person, and consequently the deed is nullified [it appears to me]. However, when there were still objects and merchandise in the partnership business, in this case waiver is not effective, as I wrote there, unless they divided between themselves and each one received what belongs to him, or he acquired through kinyan sudar the merchandise belonging to him; and if there was money, he shall acquire them through a deed or the like. And if there are denials between them, let the law pierce the mountain between them through an oath or acceptance according to the matter.

Partners are obligated to engage in the business without trickery or deceit. If there is a matter in the business that one of them cannot engage in, because if he engages in it a loss will come to the business, the second is obligated to engage in it alone. For example: Reuven and Shimon are partners who had a debt with a certain officer under whom Reuven dwells, and Reuven made the debt with the agreement of Shimon. Shimon says that Reuven should claim the debt since he made it, and Reuven says that he is afraid to claim from him because he dwells under him, and says that Shimon should claim—the law is with Reuven. This is specifically when Shimon agreed at the time of the loan that Reuven would make the debt in his name, even though he knew that Reuven would not be able to press him, or if at the time he made the debt he did not yet dwell under him. But if he made it in his name without the knowledge of Shimon at a time when he already dwelt under him, and Reuven knew then that it would be impossible for him to press him, he is a complete negligent party, and Shimon is not obligated to claim the debt, and Reuven must pay him the loss from the value of the debt [Netivot HaMishpat]. Nevertheless, Shimon should act beyond the letter of the law and claim from the officer, since he is not afraid of him, it is like "this one benefits and this one loses nothing" [it appears to me]. And when Shimon must claim, he cannot warn Reuven to press the officer, for Reuven is not obligated to provoke his officer since he was not negligent in making the debt. However, if Reuven receives some benefit from the officer because of the debt, such as if he exempts him from tax and the like, we estimate how much the benefit is worth, and he gives half of this to his partner. All this is when Shimon has the ability to claim the debt even though the debt is in Reuven's name; but if he does not have the ability to claim according to the law of the land, Reuven must necessarily claim the debt in any case, for he surely accepted this upon himself since he made it in his name, even if at the time he made the debt he did not dwell under him [it appears to me].

Partners who stipulated between themselves that they would remain in partnership for a fixed time, each of them can prevent his fellow, for he cannot divide until the time they established or until the capital of the partnership is exhausted. For then, one cannot compel the second to provide more capital for the business even if the time has not yet expired, since the capital they partnered with was lost. And as long as there is partnership capital, they must engage in the business until the time, unless that small amount which remains is not fit for business. And even though one who receives an iska from his fellow can withdraw even within the time, as will be explained, this is because there is a status of slave or laborer upon the practitioner, and his law is like the law of a laborer who can withdraw; but partners who engage in business together do not have the status of slave and laborer upon them. And likewise, none of the partners can take from the principal or from the profit until the end of the time they established, for the profit is also liened to the principal. And also, one cannot say, "You take yours and I mine, and we will each engage in business individually and the profit will belong to the partnership, and I will accept responsibility if you lose," for the second can say to him, "The fortune of two is better." And likewise, none of them can claim the claim of gud o igud, for anywhere that one cannot compel him to divide, the claim of gud o igud does not apply [Netivot HaMishpat].

Specifically regarding dividing, one partner does not have the power; however, regarding selling the merchandise, one can compel his fellow when it appears according to the custom of merchants that there will be no further profit in the future, and all the more so when it appears there could be a loss [ibid.]. And if one partner does not wish to involve himself, the second can hire another worker in his place at the expense of the one who refuses, and he can also cancel the partnership because of this [ibid.]. And if one does not wish to give funds according to what they stipulated, if they performed an effective kinyan on the funds as I wrote at the beginning of the siman, he can compel him; and if not, he cannot compel him, but he has the power to cancel the partnership. And if they already gave the funds to the partnership and in the middle of the business one received a certain amount back, he can compel him to return the funds to the partnership even when there was no kinyan on the funds; for since they became liened to one another for the amount of funds they gave initially, they became like employees to one another with their funds, and the funds were acquired for the business of the partnership until the end of the term of the partnership, and all the more so the second can cancel the partnership because of this. And so too if they stipulated to partner with a maneh and afterwards due to the necessity of the business more funds were required, for otherwise the business is not worthwhile, one can compel his fellow to add funds; for regarding anything in which there is the benefit of both of them in the business, they can compel one another [ibid.]. And if he does not have the power to compel him, he has the power to cancel the partnership.

A partner who fell ill or was under duress and did not engage in the partnership, the law is not that the other should engage and profit and give to him. And even if they accepted with a kinyan at the time of the partnership, it is not effective, for the kinyan was only that they both engage, and the second is not obligated to suffer because of the duress of this one, unless he wishes to act beyond the letter of the law, and it is fitting for the seed of Abraham to do so; however, according to the law, we cannot compel him. And if he lost in the business, the second is obligated to suffer his portion of the damage, for what was he to do? Behold, he was forced to engage alone, and the other cannot say "you should not have engaged either," for what kind of claim is this? And if the duress was due to the business of the partnership, such as if he traveled for the business of the partnership and a river delayed him, he has a portion of the profit in what the partner engaged. But when he fell ill there, he has no portion, for even if he were in his house, he would not escape this illness [Shach], unless the cause of the illness can be attributed to the business, such as if the air of the place caused it for him, or the cold or the heat, which in his house would not have reached him, or that he fell ill because of the distress of the business and the like. And all this is when there is no custom of the merchants in this, but when there is a custom in this, they shall act according to the custom.

And if one of the partners dies, the partnership is voided even if it is still within the term of the partnership, and even if the heirs wish to involve themselves with their father's portion. For behold, the money has passed into the domain of the heirs, and he may say to the heirs, "I partnered with your father and not with you, and I do not consent to be your partner." And likewise, the heirs may also void the partnership even when he wishes to continue [Sma]. And even if the heirs are more diligent in business, nevertheless he may say, "I did not partner with you," and we cannot compel him to be in partnership with them [and the Sma in subsection 50 did not mean this strictly, but spoke of the common way of things as to why he does not wish it]. And the same applies to one who received money as an iska and died; the provider may compel the heirs to give him his money even before the time [Netivot HaMishpat] for the reason that has been explained. And nevertheless, it appears to me that if according to the assessment of experts, if he takes his money now there will be a loss to the heirs, we compel him—whether in a partnership or in an iska—until such time as they emerge from the loss, or that he himself bears their loss now from his portion. And likewise, three partners who received money for an iska from one person and one of them died, each of them may retract because he can say that he only consented when three specifically would be involved. And a partner who died and the survivor conducted business alone and did not inform the heirs or the beit din that he was voiding the partnership, the heirs take a portion of the profit, except that he takes payment for his exertion according to what the experts assess. And likewise, regarding a partner who fell ill and the second one conducted business alone, the law is also thus [ibid.]. And when he is healed from his illness, he returns to his partnership. And the same applies to other circumstances of ones, for since he did not come to beit din to say "I am working for myself," the profit belongs to the partnership. And all this applies to a mercantile business, but in a fixed business such as the holding of a mill or an arenda, he cannot push aside the heirs from the partnership until the time, but he can only claim gud o igud [ibid.]. And in the case of illness, even this he cannot claim, as most ill people return to life, unless it was a prolonged illness where according to the words of the doctors his illness will extend a long time, for then he can claim gud o igud [it appears to me].

Just as regarding the setting of a time, one of the partners cannot retract before the time, so too if they did not set a time for the partnership but rather stipulated to perform a certain business transaction, neither of them can retract until they perform the transaction. And similarly, if they stipulated to go to a certain place to trade there or to buy merchandise there and bring it here to sell it, neither of them can retract until they go to the place they stipulated according to the condition that was between them. And if they stipulated to sit there in a shop, if they set a time, they are obligated to sit there until the time; and if they did not set a time, it is viewed according to the matter: if their intention was in order to sell the merchandise they have, they sit until they sell the merchandise; and if their intention was to sit in a shop and buy merchandise and sell, it is not less than a year [it appears to me], for it is not the way to open a shop for less than a year. And if there was a fair there and they stipulated without specification to sit in a shop, presumably their intention was to sit until after the fair, and so too anything similar to this; and the matter depends on the assessment of the beit din.

Even though partners cannot retract before the time they established, nevertheless, one who receives an esek from his fellow for a fixed time—where the recipient himself will engage in the esek and give the provider a portion of the profit—can retract even within the time, according to the law of a worker who may retract even in the middle of the day. However, the provider cannot retract, for the status of "servant" is upon the recipient, and it is a decree of the Torah: "They are My servants," and not servants to servants. But the provider does not have the status of "servant" upon him since he is not engaging [in the work], and his law is like other partners, of whom none can retract. The same applies to two who received an esek from one person; those two can retract, but not the provider. However, this is specifically when both recipients want to retract, but if only one of them wants to retract, the second can prevent him, for regarding him he is not a servant, and his law is like other partners who prevent one another [Sma]. And this, that the recipient can retract, is specifically when he sold the merchandise he bought or if he has not yet bought at all; but when he bought the merchandise and has not sold it, the provider can prevent him until he sells the merchandise and returns his money to him. For granted that he can retract, but he cannot cause him loss or impose upon the provider the burden of selling the merchandise. And also regarding a worker the law is so, as I wrote in siman 333. And in a place where he can retract, even if there was a kinyan he can retract; and there are those who disagree regarding a kinyan, and there it will be explained regarding this with the help of Heaven.

There it will be explained that a contractor does not have the status of a worker regarding retraction. Therefore, one who accepted an iska from his fellow, not for a fixed time but rather he accepted from him a bundle of merchandise to sell it and divide the profit as they agreed between them, he cannot retract; and if he retracted, his hand is at the bottom as is written there. And regarding the iska documents customary among us, where the receiver can pay the giver every month according to what they agreed between them, some say that the receiver does not have the status of a worker, for he is not his servant since he gives him a fixed amount without any accounting of the business at all [Shevut Yaakov]. However, many disagree with this and hold that the receiver can retract even in the middle of the time they fixed in the iska document. However, it is certainly so that the receiver must either give the holder of the document all the profit from the entire time written in the document, or he must clarify through witnesses or through an oath what he profited until now and give the giver half the profit with a deduction for his effort, because the giver can say: "That which I agreed to receive a fixed amount was because of the length of time you fixed with me, but for such a short time I did not consent, and I will receive my portion from the business according to the law" [Netivot HaMishpat in siman 74]. And if it is known that this giver always lends even for a short time, he cannot say so, and the other gives him until this time that he retracts and departs and goes on his way [it appears to me].

In a partnership business, if this one says to do thus and that one says to do thus, they shall ask the merchants, and whoever says to do according to the way of the merchants, we listen to him, for he speaks according to the laws of the merchants, and he compels his fellow to do so. And even if he acted so without asking the partner, and even if it was discovered afterward that had he not done so it would have been better, nevertheless, since he acted according to the way of the merchants, the second has no claim against him. And one who wishes to act not according to the way of the merchants, his partner may prevent him, even if this one's desire is to take upon himself any damage that occurs through this, because he can say: I will not give my money such that I will need to later sue you if there is a loss. Therefore, if this one deposits money or collateral as security, it is possible that the second cannot protest against him [it appears to me].

Therefore, if one of the partners said, "Let us bring the merchandise to such-and-such a place where it is expensive," and it is not the way of merchants to do so, his fellow partner can prevent him, even if he accepts upon himself every accident and every loss, because he can say to him, "I will not give my money and be a pursuer of wind after you to extract it from you if some cause should occur." And if he deposits cash for this, it has been explained previously. And so too regarding anything similar to this. And so is the law conversely: if one of the partners comes to store the produce as is the way of merchants, his fellow partner cannot prevent him. And once the time for their sale has arrived, each one can sell, and his fellow partner cannot prevent him. And when he has sold, even if it later became more expensive, his fellow partner has nothing against him. But if he sold it before its time, it is negligence, and he is liable to pay his fellow partner his portion. And when its time to sell arrived and nevertheless his fellow partner prevented him from selling because he thought it would become more expensive, and afterward it became cheaper, even though he acted improperly and his fellow partner should have protested against him, nevertheless he is exempt from paying, as this is not negligence. And all this is when there is a known time to sell that produce; but when there is no known time for its sale and one of them wants to store it, his fellow partner can prevent him and sell it immediately. And whenever the time for the merchandise to be sold has arrived, even if they set a time for the partnership and it is still within the time, nevertheless he can sell since the time for its sale has arrived. And also regarding bringing the merchandise to another place, if according to the sight of the experts it is correct to do so according to the present time, such as if there is a fair not very far from here and the like, even though normally without the fair it is not the way of merchants to bring it there, nevertheless now he can compel his partner to bring it there.

Partners who entered into a partnership without qualification and did not set a time for their partnership, behold they may divide whenever one of them desires, and each shall take his portion of the merchandise. And if that merchandise is not subject to the law of division, or if there is a loss in the division, behold they sell it and divide the proceeds. And such is the law if they set a time and the time arrived. And similarly, one may say to his fellow "buy or I will buy" [Shach]. And even though in section 43 it was explained that they must sell together, that is because they stipulated to buy this merchandise and sell it, which is considered like a set time until the sale; but here they entered into a partnership without qualification to conduct trade and did not speak specifically of buying this merchandise and selling it, so every moment is like the arrival of the time. And just as with a set time they may divide when the time arrives even if there is still merchandise, so too here. And some say that even here one cannot compel his fellow to divide unless his fellow does not want to divide at all; but if his fellow also consents to divide, but requests that they sell the merchandise they have together, the law is with him and they shall sell together, for the fortune of two is better [Netivot HaMishpat]. And according to this, even where they set a time and they have merchandise, it is possible that one of them can compel his fellow that they sell together. Nevertheless, it does not appear so, for since the time they set has arrived, how can he compel him to be with him together and say "the fortune of two is better"? What is it to him and his fortune? [And so it appears in Shulchan Aruch section 18, for if not so, how could he divide not in his presence? Perhaps he would want to sell specifically together].

And if there was a known time for the sale of that merchandise, even though they did not set a time, each of them may prevent the other from dividing until it is sold at the time set for its sale, and neither of them takes from the principal nor from the profit until the time of division, unless they stipulated between themselves that they would take, or if it is the way of partners in this place to receive the profit in the middle of the business. And the reason that each one may prevent it is that, while it is true they did not set a time, nevertheless, we are witnesses that at the time they purchased this merchandise, it is as if they stipulated that they would not divide until they sell it at the known time for its sale. This is in contrast to the previous law, where there is no known time for the sale of this merchandise, they may divide at any time they wish. And if they set a time for their partnership, and before the conclusion of the time they purchased merchandise that has a known time for its sale, one of them may also prevent dividing until it is sold at the known time for its sale, for the reason we explained [it appears to me].

It is a simple matter that none of the partners can sell his portion to another without the consent of his partner, because he can say to him: "I consented to be a partner with you, but not with this one." And even if he wishes to sell his portion in a manner where he remains the one occupied with the business as before, nevertheless his fellow can prevent him, for he may say to him: "Since the profit will not be yours, you will be lazy in the occupation" [Tzemach Tzedek]. But if he wishes to give a portion of his portion to another and he will be occupied as before, the partner cannot prevent it. And even though there is one who wavers regarding this as well, nevertheless such is the primary ruling, that in this the partner cannot prevent it.

When the time comes to divide the partnership and one of them comes to beit din stating his desire to divide and his partner is not here, the beit din gives him permission to divide without the knowledge of his fellow, as he is not obligated to wait for him. And if the division is ready cash and it is all one type of currency where there is no difference in value or depreciation between them, he divides the money before two witnesses and does not require a beit din; he takes his portion and leaves the portion of his fellow in beit din. And if the division is something that requires an appraisal, such as merchandise or produce or money that is not equal in value and depreciation, he only divides before a beit din of three. However, they do not need to be an expert beit din, for even if they are all laymen and there is not one among them who has learned and reasoned, provided that they are trustworthy people and knowledgeable in appraisal, they divide; and he takes his portion and leaves the portion of his fellow under the authority of the beit din. And the beit din shall see that his portion is in its entirety so that his partner will not have a claim against him afterward if it should be diminished from this. And the beit din divides documents by appraisal [Shach]. And where they did not set a time for their partnership, whether he can divide not in his presence is not clarified in the Gemara or in the Rambam, chapter 5 of Laws of Partners, or in the Tur. However, our teacher, the Beit Yosef, in the Shulchan Aruch, section 18, ruled that even where they did not set a time, the law is so. Nevertheless, it appears to me that they are not similar; for where they set a time and this one is not here, even though it is possible that within a month he will come, nonetheless he can divide not in his presence, for he should not have gone without a division since he knew the time they had set. But where they did not set a time, they wait for him thirty days, as with the time given by beit din for payments, for he did not act with negligence by going without his partner's knowledge; since they did not set a time, he thought the partnership would continue further. But if he tarries more than thirty days, he divides not in his presence.

And if he divided with fewer than three, he has done nothing, and if the price rose or fell, it all belongs to the middle. And similarly, if the one who divided sold his portion and profited, his partner also takes a share in the profit. And if he later lost on his portion, some say that he can cancel the division, for this is not similar to a change in the partnership, as he did not change anything but rather thought to divide, and since the division is nothing, they are partners as before. And some disagree, for since he consented to divide, he has consented, and his partner shall not suffer the loss; on the contrary, this is worse than a change. But regarding profit, everyone agrees that his partner takes a share [the Gra]. And if he sold half of his merchandise according to the assessment, but with the money from the sale he profited, some say it belongs to him alone, for since he sold the merchandise, the money is considered as if they were divided [Shevut Yaakov]. However, in any event, he has not acted properly and is considered like a robber. Therefore, if he thought he was acting according to the law because he did not know the law and did not intend to act unlawfully, he is obligated to give half the profit to his partner, for he did not intend to rob and their partnership still exists [Tamim De'im siman 160].

Partners whose time has arrived to divide, and they had debts with others for which the time of payment has already arrived [Netivot HaMishpat], one partner cannot delay the division and say, "We shall not divide until we collect all the debts that we have." Rather, they divide, and when the debtors pay, each shall take his portion, or they shall divide the documents by an assessment of the beit din, and likewise with oral debts [Sma], or they shall divide by the rule of god o igod. However, this depends on the opinions that were explained in siman 171 regarding whether the claim of god o igod applies to partners and documents. And if they divided the documents and afterwards the debt of one of them was ruined, he has nothing against the second, and his own fortune caused it. But if the time of payment has not yet arrived, each one can delay the division [Netivot HaMishpat].

If debts to others were reaching them and the time for repayment had not yet arrived, if they specified in the documents or orally that they are not responsible for one another, they divide, and when the time for repayment arrives, each one shall give his portion. And neither of them can say, "Let us engage with the money together until the time for repayment arrives," since the time of the partnership has ended. And it appears to me that if they did not set a time for the partnership, one of them can delay and say, "Since we borrowed until such-and-such a time, presumably it was the intention of both of us that we be in partnership until that time." And if they did not specify that they are not responsible for one another, such that the lender can collect the entire debt from one of them, each of them can delay the division until the times for repayment arrive, even if they set a time and the time has already ended; for how shall they divide? Perhaps one of them will not pay and they will claim from the second. However, regarding this one who delays the division—if it is within his power to compel the second to trade with the money until the times for repayment, it appears that if they borrowed during the duration of the partnership, he can compel him also to this, for he says to him: "Since we borrowed together and we limited the times for repayment after the time of the partnership and we are responsible for one another, it is as if we specified that the business shall continue until the times for repayment." But if they borrowed at the beginning of the partnership and afterwards they limited the time of the partnership, granted that he can compel him not to divide for the reason that has been explained, nevertheless he cannot compel him to continue the business until the repayment, for they themselves set the time of their partnership prior to the repayment [see Taz, and it must be said that such was his intention, and examine it closely].

If his partner said to him that it is his desire to divide, "Let us divide now, and regarding what you fear—lest I will not pay half of the debts—you take all the money from the debts and trade for yourself, and you shall pay at the times of repayment," nevertheless, the second one can prevent it and say, "I fear lest I will lose, and it is better for me that we trade in partnership, for the fortune of two is better." And even if this one wants to pay his portion of the debt to the creditor now, nevertheless, the other can prevent him and say, "Since we are responsible for one another and I can compel you to trade in partnership, the entire principal is liened to both of us, and the fortune of two is better" [Sma]. And this is only in a place where he can compel him to trade together, as I wrote in the previous section.

It has already been explained that just as partners divide the profit, so too they divide the loss, even when one labored alone, provided only that he was not negligent and did not deviate. And if a mishap occurred to the merchandise, such as if it was stolen and expenses were incurred to ransom it, since it was not through the negligence of the one involved, the damage is upon both of them. This applies specifically to the merchandise; however, if one of the partners traveled with the merchandise and was captured, the expenses of the ransom are upon him alone, even though he traveled for the business of the partnership, for a partner is not obligated to ransom his fellow, and his own fortune caused it. This is similar to one who fell ill; and even partners who are sustained together, where in the case of illness he is healed from the partnership funds as written in siman 177 if the healing has no fixed limit, nevertheless the accident of captivity is not like sustenance, for they did not become subservient to one another except regarding the guarding of the business, but regarding the guarding of the body, it is upon each one to guard himself [Sma]. And more than this, the Ramban and the Rosh, of blessed memory, ruled regarding two partners where one of them brought the partnership merchandise to a certain place to sell and was captured, and his fellow ransomed him from the partnership purse, and the partnership continued and they both died, and the heirs of the second partner claimed to take first from the partnership the amount of that ransom that was spent on the captive; and they ruled that the law is with them, because the ransom is on his account alone. And even though their legator did not claim it all the days of his life, we do not say that he forgave him, but rather he wished to wait until the division and then he would have claimed it from him. However, if there is a custom that they ransom from the partnership, or in the case of illness that they heal from the partnership, we follow the custom. And in our provinces, the custom is widespread so, that any mishap that results from the business of the partnership is upon the expenses of the partnership.

And if it is evident from the looters that they did not target his person but only the money, as in an incident that occurred in ancient times with one who received an iska from his fellow and the governor seized him along with the other Jews, and he was forced to give from the iska for his ransom—if it is the custom of the city to give from the iska, it is like other taxes. This is because there is a strong assessment that his intent was for the sake of the money, and since it is within his power to impose taxes as he wishes, this too is included among the taxes and is on the account of the partnership.

And all this is regarding partners, but regarding an agent whom one sent on his business and he was seized, some say that if he went for him for free, he is obligated to redeem him, for regarding his person he is like a borrower who is liable for accidents. And there are those who disagree, for we do not find payment for damages except for damages to his property and not for damages to his person [Rashba], unless he caused the damage, such as if he dug a pit, or if his property caused damage. But without this, he is not seized on account of his fellow even though it came to him through his causation. Furthermore, even one who sent his fellow and took upon himself to redeem him from every loss and he was seized on the way, nevertheless he is exempt from redeeming him, for it is an uncommon accident. And it will be explained in siman 225 that even one who took upon himself accidents and responsibility, we say that his intention was only for common accidents. And in a place where there is a custom that everything is upon the sender, even regarding an agent for hire, they shall act according to the custom.

One of the partners or a recipient in an iska who traded in nevelot and tereifot and the like, in things which according to the law it is forbidden to trade as is explained in Yoreh Deah siman 117, his status is like one who deviated, for you have no greater deviation than this, as they certainly did not form the partnership to transgress the words of the Torah. Therefore, if he lost, he lost for himself, and if he profited, the profit is shared in the middle, as I wrote in section 33. And a partner who found a metziah, his fellow has no portion in it unless they stipulated that they would also be partners in a metziah [Hagahot Mordechai, chapter 5]. And similarly, one who hired his fellow to buy and sell in his business and he found a metziah, the employer has no portion in it unless he stipulated with him that it should belong to the employer. And if he collected paid debts, it is included in the category of a metziah, for behold, the document is only worth the value of the paper, and similarly with an oral debt. And if he returned the document to the debtor or told him regarding the oral debt that it is paid, he is not liable to pay even though he was able to collect, and also ab initio it is a mitzvah to do so because of the sanctification of the Name [Levush].

Our teacher, the Rema, wrote in section 12 that a partner who stole or robbed must divide it with his fellow, and if he lost it, the loss is his own. Thus far his words. The great later authorities disagree with this, for it is no worse than a find, as this does not pertain to the business of the partnership. Furthermore, it is worse than a find, for with a find there is no transgression, but with theft and robbery, he presumably is not pleased to take a portion in a prohibited matter, even if they stipulated that finds should belong to the partnership [Taz]. And even if he were pleased, why should he give him a portion? And so it is explicitly stated in the Yerushalmi [chapter 9 of Bava Batra], and such is the primary ruling. And it appears to me that even our teacher, the Rema, only said this when it pertains to the business of the partnership, such as if he was meant to collect from Reuven a maneh for partnership merchandise that he sold to him, and he took from him two hundred by robbery; for since he took it for the partnership merchandise, although he committed a transgression, ultimately it stems from the partnership business. Therefore, it is superior to a find, for a find has no connection at all to the business, and it is similar to an overpayment, which will be explained as belonging to the partnership, and what does it matter to me if he gave him the overpayment or if he took it himself by robbery [and although in the Hagahot Maimoniyot, chapter 5 of Shluchin, it is explained not according to our words, nevertheless, the words of the Rema can be settled in this way].

And that which has been explained, that the loss is his own, this is specifically if he lost through this before it became known to his partner, or even after it became known but he had not yet taken his portion, he can say "I do not want a portion in this and I will also not suffer the damage caused by this." But if he already divided the theft with the partner and afterwards a loss came through this, the loss is upon both of them. And similarly, if one bought a stolen or robbed item and divided it with his partner, and his partner knew that the item was stolen or robbed and a loss came afterwards through this, the loss is upon both of them, since he knew and consented to this, and there is no need for a kinyan for this. And when they concluded between themselves to divide, even though they have not yet divided, the loss is upon both of them. And specifically regarding theft and robbery, which are prone to loss through this, both must suffer; but if they divided profit from a business and a false accusation arose against one of the partners through the business, the second is not obligated to suffer, as I wrote in section 56, for regarding a loss of the body they did not become enslaved to one another, since it is not prone to loss.

In siman 183 it will be explained what the law is regarding one who sent a messenger to buy merchandise and they added for him to the purchase price, and there it will be explained that there is a distinction between an item that has a known price and an item that does not have a known price. It will also be explained there, regarding an error of an extortionist, to whom the error belongs. However, regarding partners, it appears to me that in all manners it belongs to the partnership. A proof for this is that when a messenger stole or robbed, all the poskim hold that the sender has no part in this, yet regarding partners, there are those among the poskim who hold that it belongs to the partnership, like the ruling of our teacher, the Rema, in section 60. And all the more so regarding what they added to the purchase price and regarding an error, where there is a dispute of the Rishonim regarding a messenger, as the Tur wrote there, all the more so that it belongs to the partnership. And so it appears to me as the primary law.

Reuven and Shimon who had a debt owed to them by a gentile, and Shimon said to Reuven, "Whatever you do with your own, you may do with mine," and Reuven went and exempted the gentile entirely and pardoned his debt and Shimon's debt—Reuven is liable to pay Shimon what his debt was worth for sale at the time he pardoned it. And he cannot say, "Did you not permit me to do with yours as with mine?" for we are witnesses that his intention was not to pardon the debt entirely, and it did not enter his mind that Reuven would pardon it entirely; rather, his intention was regarding how he might compromise with him or regarding an extension of time. And this has already been explained in siman 123, section 8. And if Reuven says that Shimon permitted him to pardon it entirely, if Shimon admits to this, Reuven is exempt even if he did not say to him "on the condition of being exempt," for it is similar to one who says to his fellow, "Tear my garment," where he is exempt in such a case, as written in siman 380. And if Shimon denies it, saying he did not tell him so, if Reuven does not have a migo—such as if he could have said "he was never liable to you" or "I did not pardon it at all," for instance where there are witnesses that the gentile was liable to Shimon and there are witnesses that Reuven exempted him—Reuven is liable to pay Shimon according to its value for sale. And he is not believed even with an oath to say that he pardoned it with Shimon's permission, because it is not the way of the world to do so. However, if Shimon has no witnesses regarding the debt or regarding the pardon, Reuven is believed with a shevuat hesset to say that Shimon commanded him so. And this is not like a migo in the place of witnesses, for granted that a pardon is a weak claim, nevertheless, with a migo he is believed with an oath, just as the borrower himself would be believed to say "you pardoned me" when he has a migo. [And this is the intention of our teacher, the Rema, in section 11, and so wrote the Sma in siman 123, subsection 11 in the name of the Rashba, and so it is written in the Shaar Mishpat; and the Shach and the Taz contested him in vain]:

But there are those who disagree on this and hold that if there are witnesses that the gentile has not yet paid Shimon, Reuven is not believed even when he has a migo, such as when there are no witnesses that Reuven exempted him, for it is a migo in the place of witnesses, as we are witnesses that he did not say so, and he must pay him. And if the debt is not known how much it was, Reuven would swear that it was such and such and pay Shimon according to the value of the debt for sale; but Shimon is not believed with an oath as to how much the debt was so that Reuven should pay him based on his oath [Teshuvot Maimoni, Nezikin]. But if there are no witnesses that the gentile has not yet paid the debt to Shimon, if Reuven has a migo, he is believed to say that Shimon commanded him to forgive it, for this is not like a migo in the place of witnesses, as we say that it is a paid debt, but that he was able to sue once more, and in this it is certainly common to say so, that he should forgive him [Taz and Shach]. And even if Reuven himself does not know if Shimon was paid or not, nevertheless, since Shimon has no witnesses that he was not paid, Reuven is believed with a migo. And in a place where Reuven is not believed, he can administer an oath to Shimon that he did not command him to forgive the gentile [ibid. in siman 12]. And there is one who says that he does not need to swear [Shach]. And when he has no migo that he did not forgive, such as when there are witnesses that Reuven forgave the gentile this debt, since there are no witnesses that Shimon was not paid, so that Reuven is liable to pay him, certainly he can administer an oath to Shimon that he was not paid the debt and that he did not tell Reuven to exempt him [ibid.]. And even though he cannot administer this oath alone according to this opinion, nevertheless, by way of another oath he administers this oath as well [see Netivot HaMishpat, and it is forced].

It has already been explained that partners are all obligated to engage in the business, and if one of them does not want to engage, they can nullify the partnership. And even if they did not nullify it, nevertheless, they deduct for him that which he did not toil in the business. And if he toiled a little, they deduct for him a portion for that which he did not toil like them, and this depends on the assessment of the dayanim [Beit Yosef, Mechushar 46]. And if there were four partners and one of them stipulated beforehand that he would not engage, and in exchange for this he waives such and such money to them, and afterwards one of the three was negligent and did not engage properly, and because of this they deduct for him as has been written, they must deduct this for the fourth who was not to engage; for behold, he waived to the three, and when one of them did not engage properly, it remains for him, and he need only give the two two-thirds of what he promised them. And the two cannot say that since the third did not engage properly, we toiled on his behalf as well and his portion belongs to us, for this is like "matters of the heart," and they should have stipulated so, and since they did not stipulate, they waived.

And this is specifically when the waiver was explicit due to the exertion, but without this, it is not a valid claim. For example, two who received an iska from one and one of them died, and the provider had the ability to cancel but did not cancel, and the one managed it alone; and when they came to the accounting, the provider sought to deduct from what he had agreed with them, saying that when there were two managing it he would have had more profit—it is not a valid claim. For since he said nothing, he presumably consented to the previous arrangement, for if not so, he should have made a condition after the death of the one. This is in contrast to the previous law, where they are equal partners and the fourth stipulated that he would not manage it, and in exchange for this he gives to the three such and such; it follows that when one does not need to take his portion, why should he give to them? And he did not need to speak at all. [Beit Yosef there, and it is well-settled that it does not contradict the previous case, and the Netivot HaMishpat was pressed regarding this].

Partnering brothers who were sustained together from the partnership fund, and one of them died, and the second continued to conduct business in the partnership enterprise as he did during the lifetime of his brother, and afterwards when they came to an accounting, the wife of the deceased claimed that the living brother took more for expenses than she did and she must first take from the partnership an amount corresponding to what he took extra—the Rosh, of blessed memory, ruled that if they conducted themselves during the brother's lifetime to take for expenses in an equal accounting such that one would not take more than his fellow, her claim is a valid claim. But if each one took according to his needs, her claim is not a valid claim. And if she did not agree to this after the death of her husband, she should have made this known, for then the choice would have been in the hand of each one to dissolve the partnership as I wrote in section 42; and since she remained silent, she presumably reasoned and accepted that he would conduct himself as before. And if the living brother claims for his exertion since he labored alone—if during his brother's lifetime his brother labored with him, beit din shall assess the value of the worth of his exertion, and he did not need to stipulate regarding this after the death of his brother, for everyone sees a change in this from before. But if the widow or one of her sons labored in place of the deceased, his claim is not a valid claim; and even though he had the power to refuse this and dissolve the partnership as I wrote, nevertheless, if he did not dissolve it and there was someone who labored in place of the deceased, behold it is as before. And such is the law regarding other partners, and there is no difference between brothers and other partners. And if the widow had some side concession, such as if the community waived her portion of the tax, the living brother cannot claim that she must share it with him, for behold they waived it for her alone, and so too in any such case. And even if he says that were it not so he would not have consented to remain in the partnership after the death of his brother, these are "matters of the heart," and he should have stipulated so, and then the choice would have been in his hand and her hand to stipulate as they desired; and since he did not stipulate, he cannot innovate anything now after the business was conducted.

Two partners who had a debt against someone, whether an Israelite or a non-Jew [Sma subsection 66], and one of them collected a portion of it and wants to retain it for himself and says to his fellow, "Go and take your portion," we do not listen to him; for everything that a partner does, he does for the partnership, unless he said to him beforehand, "Let us both go and claim, and if you do not want to, I will claim my portion alone," for then the law is with him. And even in this case, specifically when the obligation was upon both of them to claim the debt; but if the obligation was upon him alone, such as if they stipulated between them that only he would claim the debts, or if the debt was in his name alone, or if the partner was required to engage in another matter of the partnership business, it is of no avail even if he spoke beforehand. Therefore, what he collected belongs to the partnership, and the practical difference in all this is when the remainder of the debt is lost [it appears to me]. And if the debt was against a certain official, and the official was angry with one of them and said to the second, "I will pay your portion, but your partner's portion I will not pay," and his hand is powerful enough to do so: if this partner said before three people, "Know that I am rescuing for myself," he has rescued for himself; and if not, it belongs to the partnership [Sma]. And some say that even if he said to himself, "I am rescuing for myself," and the partner admits to this, or if he has a migo that he could have said, "I received nothing," what he rescued, he rescued for himself [Shach]. And specifically when he collected only his portion; but if the official gave him his partner's portion as a gift as well, he cannot retain it for himself, for it is not within the power of the official to do so, and it is not similar to one who rescues from a troop in siman 181 [it appears to me].

And such is the law if two people have a compromised debt and it is necessary to expend funds to rescue the debt, and one does not want to give, his fellow may say: I will expend the expenses for my portion and I will collect my portion. And if he collected the entire debt by means of the expenses, he gives the partner his portion and charges him for half the expenses, and he cannot withhold the entire debt for himself even though the partner did not act properly in that he did not want to give toward the expense [it appears to me]. And so too in any place where there is a loss, one may divide without the knowledge of his fellow and rescue for himself. And so too partners who had a debt with a violent man from whom they were unable to collect, and one appeased him to give him his portion, if he said "I am rescuing for myself," it is his alone, and in siman 181 more of this will be explained. And any deed that was written in the name of one of them, he cannot say "I am rescuing for myself" [Mishneh LaMelech, chapter 4 of Shluchin]. And so too specifically when the compromise of the debt is due to the violence of the borrower, but if it is not due to his violence but rather he is poor and can only pay half of the debt, it is not within the power of one of them to receive for himself in any case, but rather it belongs to the partnership [Netivot HaMishpat].

Two who have a debt in partnership against one oppressor, and he paid a portion and is withholding the remainder because he says that one of the partners owes him an amount corresponding to this sum, and the oppressor has neither a document nor witnesses that he owes him—the loss is upon both of them, for the oppressor is not believed at all. And even an oath the one cannot administer to the second that he does not owe the oppressor; he can only impose a kabbalah upon him. And if the debtor was an Israelite and claims that one of the partners owes him, and he has no document or witnesses, he cannot seize something known to belong to the partnership because it is not in his power to cause damage to the second, for the loss would be upon both of them since he cannot clarify his debt [Shach]. But something not known to belong to the partnership, even though both of them say it belongs to the partnership, nevertheless, when the debtor has a migo of "I paid" or "I did not seize," he takes an oath that he seized and that he seized his own from the debt owed to him by this partner, and this partner takes an oath to his second partner that he does not owe this seizer, and both of them lose [Levush]. And the reason is that this seizer, since he has a migo, is believed with an oath, and he does not have to believe them that the object he seized belongs to the partnership since there are no witnesses to this. And nevertheless, this partner does not need to bear it all, for he says that he seized by way of robbery and swore falsely, and therefore he swears thus to the second and both of them lose. And there is no difference between the seizure of objects and the seizure of money [Shach], for even though money is considered as if divided, as it does not require an appraisal and the seizer can say "I seized from the portion of this one," nevertheless, since they have not yet divided, he cannot seize when it is known that the money belongs to both of them, even when he has a migo, as has been written.

Two partners who have a claim against someone, and one of them sued him and the partner emerged liable: if it was regarding a matter of an oath that he was liable to them and he swore to him, the second partner cannot sue him further, for an oath to one is an oath to a hundred. Therefore, even if he protested against his partner that he should not administer the oath without him, nevertheless, once he has sworn, he cannot make him swear again. However, if they had a monetary claim against him and the partner emerged liable, if the second was not in the city or did not know at all at the time his partner was with him in beit din, he can sue him another time, and all the more so if he protested against his partner that he should not go to beit din without him. But if he was in the city and did not protest, and it was not known that he did not know, he is unable to sue him further, for presumably he knew when the partner sued him in beit din and relied upon him, and now he wishes to retract and not rely on his partner's arguments. And if the second partner who did not go to beit din is a minor, he can sue him another time in any case, for a minor is considered like one who is not in the city, as he lacks legal competence. And some say that the same applies to a woman, for "all the glory of the king's daughter is within," and it is probable that she did not know and did not rely on her partner. And in a place where he can sue him another time, this defendant can impose an acceptance of an oath upon him that he did not know when his partner went with him to beit din and did not rely upon him.

That which we have said, that when he was in the city he cannot sue him another time, this is specifically when the partners are the plaintiffs; we say that presumably he is satisfied with the lawsuit of his partner and he is acting as his agent. However, when they are defendants, where another sues them whether regarding land or regarding movable property [Taz], and one partner was in court with the plaintiff and emerged liable, this does not harm his fellow at all. Since it is not known that he commanded his fellow to plead and litigate on his behalf, for presumably every person evades litigation when he is a defendant, and he is not satisfied that his partner should stand in court for him. But when it is clarified that he commanded him to stand in court on behalf of the partnership, even if he did not give him power and authorization in writing nor with witnesses, nevertheless, since he so commanded his partner, he is obligated in everything his partner was obligated in, and these matters do not require a kinyan. Our teacher, the Rema, wrote in section 25 that the residents of a city regarding matters of the city's needs are like partners, and if one of them sued another, they all know of that lawsuit and cannot return and plead. Thus far his words.

And even when they were the plaintiffs and were in the city, in what case is it said that he cannot sue him further? When the partner was not found liable based on his own arguments, such as when the matter was clarified in beit din not according to his arguments; therefore, we consider it as if he already descended to judgment, and they write a verdict against him, and he cannot say, "Had I been there, I would have examined the witnesses until they were contradicted, or at least [the court] would give me the time of beit din from the time that I myself would go with him to judgment." But when the partner was found liable based on his own arguments, and likewise if he said in beit din, "I have no witnesses or evidence," such that he cannot bring more as written in siman 20, he is able to bring witnesses or evidence. For although we consider the partner as his agent in beit din, nevertheless, he can say to him, "I sent you to benefit me and not to disadvantage me." Therefore, even if there are witnesses that he made him an agent to argue in beit din, he can retract his agency and argue for himself. And likewise, if his partner admitted to something in beit din, he can say that he admitted falsely, and he is not liable to pay based on his admission. And let it not be difficult for you: since they were the plaintiffs, how did they emerge liable such that they would need to pay? For example, during the judgment, the defendant turned and became a plaintiff, and the second partner became liable in this when the liability was not based on the arguments of the partner. And even though we said that when they are defendants he can return and litigate, this is specifically when at the beginning of their judgment they were defendants; but when at the beginning they were plaintiffs, we say that since he relied upon him to sue, he relied upon him also if during the judgment they become defendants, for it is impossible to give half-permission [Sma]. And there are those who disagree on this [Shach]. And when he was found liable based on his arguments, even if the liability was not upon them except to exempt the defendant, nevertheless he can say that he argued improperly, for "I sent you to benefit me and not to disadvantage me." [So it appears to me; and the Tur and Shulchan Aruch in section 26 did not precisely use this, for according to the reason there is no distinction; and furthermore, the language of "liability" is not precisely regarding the liability of payment, but rather liability in this judgment, as is proven from Rashi, Ketubot 94a, s.v. "anat," and examine there.]

Even though it has been explained that a partner cannot do anything without the knowledge of his fellow, such as accepting another partner into the business, nevertheless, if they are in separate locations and the partner in one location sees according to the state of the business that he is compelled to accept another partner into the business, he may do as he sees fit for the benefit of the business [it appears to me, and this clarifies what is written in the Shulchan Aruch, section 30, and examine it closely]. And likewise, in anything that he sees is for the benefit of the business, he may do even if it is not according to the details they stipulated between them, for it is a strong assessment that had his partner been here, he would have agreed to this if, according to the perspective of experts, it was for the benefit of the business. And two partners, where one of them dwells in a distant place, and Reuven came and said to the partner who is here: "Write to your partner who is in the distant place that he should buy for me such-and-such merchandise and send it to your hand together with the merchandise he sends to you," and he did so, and the partner in the distant place sent the merchandise that was requested and it was lost on the way or sank in the river, and the one who sent from afar was not negligent in the damage as he sent it in the manner of merchants, the loss is upon Reuven, for he became the agent of Reuven through words without a kinyan, as agency does not require a kinyan [Netivot HaMishpat]. And even if Reuven did not give money beforehand, he must pay, for what does the agent have to do with the business of the sender? And likewise, if Reuven wrote to someone dwelling at a distance: "Send me such-and-such merchandise," and he sent it to him and it was lost on the way without negligence of the agent, Reuven is obligated to bear all the damage. But if Reuven said to the one dwelling here: "Write to your partner that he should send such-and-such merchandise, and when the merchandise arrives here I will buy it from you and give a profit on the merchandise," if Reuven said to him that the responsibility for the journey belongs to him, Reuven must bear the damage; but if they did not speak of responsibility, the responsibility is upon the partners [Shach and Netivot HaMishpat].

Reuven and Shimon who entered into a partnership, and one of them took from the partnership funds and entered into a partnership with Levi—such as if he was the sole manager of his business as mentioned previously, or if he did so with the knowledge of his partner—behold, his fellow partner may administer the oath of partners to Levi. He cannot say to him, "You are not my litigant," for since the partner of this one entered into a partnership with him, and he is like the agent of his partner as has been explained, therefore the second one is also considered his partner. And all the more so if Reuven gave money to Shimon as an iska and Shimon gave some of the money to Levi as an iska, that Reuven may administer the oath of partners to Levi. And if Shimon administered the oath to Levi, Reuven cannot return and administer the oath to him, for an oath to one is an oath to a hundred. And so too if Reuven administered the oath to him, Shimon cannot administer the oath to him again. And even if Reuven exempted Shimon from an oath, nevertheless he can administer the oath to Levi, unless he exempted Shimon and those empowered by him. And so too if Shimon exempted Levi from an oath, nevertheless Reuven can administer the oath to him, for he could even administer the oath to Shimon. And if Reuven exempted Shimon and Shimon exempted Levi, some say that Reuven cannot administer the oath to Levi, for since Reuven trusted Shimon and Shimon trusted Levi, it is as if Reuven trusted Levi [Sma]. And there are those who disagree with this, for he only trusted Shimon and not Levi, and what does Shimon's exemption matter to him [Shach]. And some say that if Shimon revealed to Levi that the funds belong to Reuven, Reuven can administer the oath to Levi even if Shimon exempted him. But if he did not inform him, then even when Reuven did not exempt Shimon, Reuven does not have the power to administer the oath to him after Shimon exempted him, because Levi can say, "Had I known that the funds were yours and that you have the power to administer an oath to me, I would not have entered into a partnership with him [Taz]. And if you have a claim regarding this, go back to Shimon and not to me." And it appears that this opinion is primary, for these are words of reason. And regarding that which we said, that when one of the partners administered the oath to Levi the other cannot administer the oath to him again, even if he wants to roll other matters upon him he cannot, for since he was exempted from the primary matter he is also exempted from the secondary rolling of the oath, as has been explained in siman 94 [Netivot HaMishpat], unless he can administer the oath regarding the secondary matter even without the primary oath. And that which we said, that an oath to one is an oath to a hundred, even if the second one was not in the city, the law is also thus [ibid.].

Two who lent or deposited with one, and one of them came to take his portion or to take everything, it was explained in siman 77. And similarly, partners where one of them borrowed for the needs of the partnership, whether his fellow is obligated to pay was explained there. And similarly, one who borrowed from two with one shtar, if one of them came and claimed the entire debt, he is obligated to pay him in the manner explained there. And if the shtar was written in the name of one of them, and this one in whose name it was written came and claimed everything, he is obligated to pay him everything. But if the one in whose name the shtar was not written claims even a portion of the debt, we do not listen to him; even if he knew that the funds are shared, nevertheless, since the shtar was not written in his name, he has no business with him. And if he paid him, this one in whose name it was written does not need to accept them in the accounting if he so desires.

Two who borrowed from one are guarantors for one another as has been explained there, and therefore if one of them died or became impoverished, the other must pay everything. Likewise, if one denied and one admitted, the one who admitted becomes obligated for everything, and we do not accept his testimony regarding his fellow, as has been explained in siman 37. Likewise, one who admitted to one of the partners is as if he admitted also to his fellow, and he must pay him his portion as well. Likewise, if he paid one of them, it is as if he paid also to his partner; and the practical difference is if he paid part of the debt and the remainder was lost, this one who was paid must give to his partner half of what he received, for a partner's hand is like the hand of his fellow. But if he made a compromise with one of the partners, the second cannot compel him to compromise also with him, for he can say: "With your partner I was satisfied with a compromise, but with you I wish to stand only in judgment, and perhaps I will be exempt" [Sma]. And see what I have written in siman 77.

If one of the partners claimed something that is an obligation upon himself and his fellow, he is believed as a single witness to obligate his fellow in a shevuat de-oraita. This is specifically when this claimant did not become obligated through his admission for the entire debt, such as if they became obligated in one shtar, each for a specific amount, and they specified that they are not guarantors for one another, and this one admitted that the debt is still owed and the second denies it or says that he paid, and the like; for then he is not interested in his testimony. But without this, he is not considered as a witness against his fellow, as was written in siman 37 and in siman 77. And two partners, one of whom died, and they were obligated in an oath to someone, this living one shall swear, and he cannot say: since my partner does not swear, I also shall not swear. And likewise, if one of them was suspect, the second swears.

Brothers or partners who have a legal case with another, he cannot say, "Let one of you come to beit din and plead on behalf of all of you," and they have the ability for all of them to plead, except that they shall not plead as one, but rather one after the other, as has been written in siman 17; see what has been written there.

Reuven and Shimon are partners, and Reuven took money from someone to bring into the partnership, and [the person] shall take a share of the profit according to his money; even though he did not inform Shimon his partner, nevertheless, that person takes his share in the profit as Reuven stipulated with him, for every partner may do what seems to him to be for the benefit of the partnership, as was written in section 74. And this is specifically when Shimon was not in the city, for if he is in the city, he should not act without his knowledge. And when he was not in the city and Reuven brought this person into the partnership and did not stipulate with him how much he should take in the profit, some say that he takes an equal share with them, even if his money is less than theirs, as was written in section 10 [Sma]. And it seems to me that he only takes half from his [Reuven's] share and not from the share of the other partner, unless it is known that this other person is sharp in business and it is worthy that he take an equal share; for if not so, it is considered an injustice against him [Shimon] if he takes an equal share, and his law is like a messenger, where he can say to him: "I sent you to benefit me and not to cause me loss."

Inhabitants of a walled city who bought a Sefer Torah for sixty dinar and stipulated that if one of the inhabitants of the city goes to settle in another place, those remaining shall give him his portion, and now one wishes to leave and the books have increased in value and he asks for his portion according to the current high price, they need not give him except according to the purchase price they paid. For there is no law of division in this case such that he could say "give me money or a portion" [Levush], and he has nothing but money due to the prior stipulation, and they are only obligated to give him according to the purchase price that existed at the time of the stipulation. Therefore, if it were a matter where the law of division applies, he could demand under such a stipulation either his portion or according to the current high price. And so too, if it were between two partners and the law of gud o igud applied, he could raise it according to the current high price by means of gud o igud. But regarding a Sefer Torah of the public, gud o igud is not applicable against one who uproots his residence, unless they divide into two communities, for then they raise it by means of gud o igud, and with many books they divide. And regarding an individual, if there was no stipulation between them, they need not give him anything at all [it appears to me]. But two who bought a house and stipulated between them that whenever one wishes to withdraw they shall give him the value of his portion, and afterwards the house increased in value and one wishes to withdraw, they must give to him according to the current high price [Taz].

Reuven and Shimon had a partnership together and they had notes of indebtedness, and they owed tax to the community. The notes were in the possession of Reuven, and they seized the notes for the tax of Reuven; he is obligated to pay Shimon his portion. He cannot say to him, "Deduct also from your portion the tax due from you," for they did not withhold it on account of Shimon, and Shimon shall have his own dealings with the community regarding his tax. Since the community did not rob him, and he benefited from this in that his tax was paid through this, he is obligated to pay Shimon. And so too in any similar case, such as if they seized from him an item belonging to the partnership for a verified debt due from him, he must pay the partner his portion even if such a debt is also due to this seizer from his partner, since he is not claiming it from him now. However, if they robbed from him an item of the partnership, he is exempt, as will be explained.

Reuven and Shimon are partners in a debt owed to them by a certain official, and Reuven accepted the guarantee for the debt, and the official seized him and coerced him to waive the debt and the guarantee, and he was forced to waive it—he is exempt from paying Shimon, for this is like one who was coerced through physical suffering to show the property of his fellow, where he is exempt, as is written in siman 388. They did not enter the partnership on the condition that he would pay even if he were coerced. This applies specifically when they coerced him to forgive this debt, but if they coerced him regarding another matter and he appeased him by waiving the debt, he is liable to pay Shimon his portion, for it is forbidden to save oneself with the property of his fellow. Shimon can require Reuven to swear that the coercion was regarding the debt [Teshuvot Maimoniyot, Nezikin, siman 1]. This applies specifically to the waiving of the debt, but if he handed over a pledge that was in his hand, he is liable even in a case of coercion, for one who handles an object with his hand is liable even in a case of coercion [Shach ibid.]. This applies specifically if Reuven took the pledge into his house without Shimon's command, but if Shimon commanded him to take the pledge into his house, he becomes a shomer over it, and a shomer is exempt from cases of coercion even if he handled it with his hand, as is written in siman 291 [Netivot HaMishpat]. All this applies to handing over a pledge, but if he handed over the official's promissory note to the official, he is exempt in any case, for one who burns his fellow's promissory note is liable by the law of garmi, and any garmi in a case of coercion is exempt [as is evident there in the Teshuvot]. Know that any coercion for which one is exempt in this manner refers specifically to physical coercion, but monetary coercion is not considered coercion regarding being exempt from his fellow, for a person may not save himself with the property of his fellow.

Partners who have a debt together and one desired to distance himself from his place and take the document with him, his fellow may prevent him; and if he does not wish to leave it with him, he shall deposit it in the hands of a beit din or in the hands of a faithful trustee. And if one of the partners loaded the partnership merchandise on his animal or placed them in his shop, he takes the rent for his animal or the rent for his shop first, and afterwards they divide the profit or the loss; and even though he did not speak with him that he should pay him for this, for an implicit matter is considered as if it were explicit. And one of the brothers who are partners who has money in his hand and claims that they belong to others, if they are divided in their household expenses such that they do not eat together from the partnership purse, he is believed with an oath to say that they belong to others by a migo that he could have said they are his and he saved from his expenses, and it is upon them to bring proof that it is partnership money. And if they are not divided in expenses and he has no independent business, it is upon him to bring proof. And if he has a migo that he could have handed it over to others and no person would have known of this, he is believed with this migo to say that they belong to others [Netivot HaMishpat] or that they are his, and he swears a hesset oath and is exempt. And if he died, it is upon the others to bring proof in any case, and in siman 62 these laws were explained, see there. And one of the partners who went with the agreement of his partner with the partnership merchandise to a certain place to sell it, and when they came to the accounting he wants to take from the partnership his food expenses that he had on the way, if they are not sustained in their home from the partnership purse and the partner also engaged in his home in partnership business, and he would have had his travel expenses even if he had been engaged in his home, he does not take from the partnership unless there is a custom there. And now the custom is that when one of the partners travels on the way, he always takes his food expenses from the partnership purse, and they do not calculate whether in his home he would have had such an expense or not.

A horse that was pledged to Reuven and Shimon, and they deposited it with a certain gentile to guard it, and Shimon said to the gentile that he should lend it to Levi, and they brought it to Levi and it was stolen or robbed from him: if Reuven wishes, he collects from Shimon, and if he wishes, he collects from Levi. Levi cannot say, "I did not borrow from you," since Reuven has a portion in it, he can collect his portion from him. And any damage that occurs in a partnership business at the time they are engaged in the partnership business, both of them must bear it. And similarly, two partners who bought silk, and when they came to sell it, it was missing from the weight, this too is included in the loss and is upon both of them. However, the partner who was occupied with this must swear that he did not misappropriate it and that he was not negligent in its guarding. And specifically that at the time they bought the silk, the second partner also knew that the weight was complete; but if he does not know at all, such as where one of the partners bought the silk or other merchandise and it was found missing, the loss is his alone, for partners are shomrei sachar [Taz]. And if he clarifies that at the time he bought it, it was complete, and afterwards it was lost through an ones, he is exempt. But as long as he does not clarify, the second one does not need to accept into the partnership account except according to the weight and the number that he brought.

Reuven and Shimon were requested by a gentile to lend him a sum of money, and Levi requested of them to join as a partner with them in this debt, and they agreed. Reuven went ahead and gave the gentile four and a half zekukim, and the gentile said that he did not need more. Reuven went and said to Shimon and Levi, "If you wish to partner with me, each of you give me his portion." Shimon gave him his portion, but Levi did not give it to him. If, when Reuven demanded of Levi to give his portion, Levi said to him, "I do not desire to give," then he is uprooted from the partnership if Reuven does not wish to compel him to give his portion, and his portion remains for Reuven, for he gave two portions. However, if he said, "I will give my portion," even though he delayed him somewhat, nevertheless, since he did not trouble him to go to beit din, he has a portion in the profit. And if Levi died, his portion of the profit belongs to his heirs, as I wrote in section 20; see there.

Reuven and Shimon are partners, and Reuven bought merchandise from a gentile and sold it to Levi, and Levi became obligated to pay the gentile at a certain time. The gentile did not agree to the security of Levi alone, and Reuven wrote a document to the gentile stating that if Levi does not pay him at the set time, he will pay him. Afterward, they divided the partnership. Reuven has the power to compel Shimon to write a document for him stating that if Reuven clarifies that he was forced to pay the gentile, Shimon will pay him his portion and all expenses that he will incur regarding this debt. It was explained in siman 93, section 17; see there.

If Shimon purchased merchandise from an extortionist and erred and brought it into the partnership, and he is afraid lest he remember, and likewise if he had pledges and is afraid lest a loss come to him from this, Reuven should admit before witnesses that the money of the error and the pledges came to the partnership, and they shall write and sign and give it into the hand of Shimon, but he does not need to give him a deed. And this has already been explained there as well in section 18; see there.

One who received merchandise from his fellow to transport it to another place to sell it and divide the profit, and the recipient will take the wage for his labor according to the law of iska, and before he transported it this merchandise decreased in value here, the recipient calculates the merchandise only according to its value at the time he transported it. And even if he received it for a known sum, nevertheless, presumably their intention was not that the partnership should begin from the time of receiving the merchandise, but rather from the time of transport [Sma]. Therefore, whether it increased in value or decreased in value, he always calculates according to the price at the time of transport from the city. However, when it decreased in value and the recipient calculates according to the lower rate, the giver can retract [Netivot HaMishpat]. And if he fixed the sum for him at the outset, and it was within his power to travel immediately and he did not travel, and in the meantime it decreased in value, he calculates according to the previous price. And so too if it increased in value, he need only calculate for him according to the previous price [and it appears to me that this is the intention of the Levush, and the difficulty of the Sma is settled, and examine this closely].

Many partners together—one cannot withdraw from the partnership except with the consent of all of them. And even if one of the partners wants to buy his portion, the partners may prevent him, for the number of those occupied with the business will be diminished. And all the more so if his desire is to sell to another, for it is not within his power without their consent, as they can say, "It is not our desire to be partners with this person to whom you sold." However, if Reuven accepted a business venture and allocated a portion of the venture to Shimon and a portion to Levi, one of them can sell his portion to another with the knowledge of Reuven, even without the knowledge of the second person, since they did not form a partnership together; rather, Reuven allocated to them from his portion, and only the consent of Reuven is required. But Reuven does not have the power to sell his portion without the consent of both of them, for they can say that they only agreed to be partners with you and not with another. And there was an incident involving Reuven who bought merchandise and allocated to Shimon, Levi, and Yehuda each a quarter in the venture for profit and loss. Afterwards, they lost four hundred zuz on the merchandise, and there was a loss of one hundred zuz upon each one. Shimon and Levi feared that there would be further loss and reached an agreement with Reuven that they would withdraw from the venture, and they gave Reuven three hundred, and Reuven gained one hundred zuz according to the present situation. And they ruled that Yehuda has no portion in these hundred, for they only partnered regarding the profit from the merchandise and not regarding what one partner buys from his fellow's portion. And since Yehuda did not have the power to prevent Shimon and Levi from selling their portions to Reuven because he did not form the partnership with them, Yehuda has no portion in this profit. And if he wishes to withdraw, he must give one hundred zuz for his portion of the loss. And likewise, if the merchandise was sold and there was a loss of four hundred, Yehuda loses one hundred. And likewise, if there was more loss or profit, the hundred that he took from Shimon and Levi shall always be calculated on the account of Reuven alone. And that which we said, that one does not withdraw except with the consent of all of them, and even if one of the partners wants to buy his portion—this is when all of them are occupied with the business, for they can say, "It is not our desire that those occupied with it be diminished." But if this person who is withdrawing is not occupied with the business at all, certainly he can sell his portion to one of the partners without the consent of all of them [so it appears to me].

Partners who came to divide their vessels that contained the merchandise, there is no proof from what is written on the vessels with the name of a certain partner that they are his alone, for the second can say that because the partnership continued for some duration, these vessels were yours in the past and now they are mine, for so it was according to the state of the business and the like. Therefore, they divide either by means of an oath or by means of a compromise, but not by means of a chazakah, for partners do not establish a chazakah against one another, as was written in siman 179. And in Orach Chaim siman 156 and in Yoreh Deah siman 147 it was explained regarding the law of partnership with a Cuthean; and when one enters into a partnership with him and he becomes obligated to him in an oath, it is permitted to accept his oath. And many of the laws of partnership were explained in siman 93.