Siman 177

It is a known and agreed-upon matter that partners, or brothers who are partners in their father's estate, everything that pertains to the business of the partnership, the profit or the loss is split in the middle. However, that which does not pertain to the business of the partnership—such as if one found a lost object, or if one has some side livelihood not from the estate, or some craft—it belongs to him alone, and the brothers have no portion in this. Nevertheless, if the profit is by virtue of their father's merit—such as one of the brothers whom the official appointed as a collector or a scribe who manages his money, and similarly anything comparable to this from the service of the official, and he has profit in this—if the appointment was due to the merit of their father, such as if their father was appointed to this matter and the official commanded to establish a son in his place in order to perform an act of kindness with the orphans, the stipend he takes and everything he earns in his service to the official belongs to everyone. And even if he was exceptionally wise, such that he was truly fit to be appointed, nevertheless, since the merit is due to their father, it belongs to everyone. But if they appointed him due to himself, and not because he wanted to establish one of his sons in the place of the father, this belongs to himself. And likewise regarding loss: if the official took money from him, if he took it because of the money of all the brothers and their wealth, the loss is for everyone; but if it was due to himself, as he was already wealthy even before the inheritance, the loss is for himself. And some say that regarding what we said concerning profit—that if it is due to the father it belongs to everyone—nevertheless, the one who occupies himself takes first his wages for his effort each day like a laborer, and it is necessary to appraise it according to his value and worth.

According to the reason that has been explained, this law does not apply at all in our times, for this only applied to brothers and in ancient days when it was the custom of the great ministers to accept one man from a family to oversee his affairs, and this was from the law of the ministers [Bach]; therefore, all of them have a portion because the minister commanded thus. However, if one of the heirs filled the place of the father in one of the positions in the city or in some craft, the brothers have no portion, for this is not property that is fit to be inherited. And some say that we view the brothers, as long as they have not divided, as if the father is still alive and they are all as one man; and therefore, anything where one of them filled the place of the father and acts by the merit of the father, the profit is for the middle. And all the more so regarding other partners who entered into partnership and explicitly stipulated that whatever they profit from any source shall belong to the partnership, that it is for the middle. And some say that even according to this opinion that we consider it as if their father is alive and they are as one man, nevertheless, this is only in matters of the minister like the first opinion; but in a craft or other business, everything is for himself, even though he filled the place of his father, because of the reason that will be explained in siman 287, that regarding assets left by the father where one of the brothers improved them in their substance, it belongs to him alone. But regarding partners, when they have stipulated, it belongs to the partnership in every case. And all this is regarding brothers who have not yet divided; but if they divided, they have no connection to one another in any matter unless they stipulated between them [what the Rema wrote, "and some say specifically for a craft," refers to brothers].

In a business such as this where one is active and everyone takes a share of the profit, if the active partner fell ill: if he fell ill through his own negligence, such as if he walked in the snow in the winter excessively or in the heat during the summer days and the like, if there is a fixed cost for his medical treatment—that is, he reached an agreement with the physician that for such and such an amount he will heal him—he is healed at his own expense. And if it does not have a fixed cost, he is healed from the common fund, for medical treatment that does not have a fixed cost is included in the category of sustenance, as I wrote in Even HaEzer siman 79. And since it is like sustenance, it is not relevant to distinguish between negligence and an accident, for it is impossible to be so exacting regarding sustenance. But if he fell ill not through his own negligence, even if it has a fixed cost, he is healed from the common fund. And some say that in a case of negligence, in any event he is healed at his own expense, and in a case of accident, specifically regarding medical treatment that does not have a fixed cost is he healed from the common fund. However, before he is healed, they can say to him: "Divide with us," for even regarding sustenance, if they seek to divide, the right is in their hands. And the primary view is like the first opinion [Shach].

In what case is it said that he is healed from the middle? When he alone is engaged in the craft and all of them take a share in the profit; but two partners who are engaged in a craft or in commerce and one of them fell ill, even due to an accident, he is healed from his own funds. And this is specifically when they are not sustained from the partnership together without an accounting, for then, even if the one engaged in the work is on the road and is sustained from the partnership purse, nevertheless, the healing is at his own expense. But when they are sustained from the partnership without an accounting and he fell ill due to an accident, any healing that does not have a fixed limit is considered like sustenance. And in siman 176 it was explained that when one of the partners is captured, he redeems himself from his own funds, for the guarding of his body is upon each individual.

One of the brothers who are partners, all of whom are sustained from the common estate, where one of them desired to go to study Torah or a craft, they shall assess how much reaches his portion of his expenses when they are together, and this they shall give to him from the common estate, even though he requires more when he is alone, such as candles and wood and vessels, for when they are together, a candle for one is a candle for a hundred. And also, this fact that he is permitted to go is specifically when it is not necessary for him to engage in the business, such as when each one works at a specific time and he goes when his time is finished; but otherwise, they have the power to prevent him so that he shall not go at all [Sma].

A partner who said to his partner, "Steal, and any damage that reaches you I will pay," there is nothing in his statement, for even regarding a messenger we maintain that there is no messenger for a sinful matter. And there is one who says that he must pay for his portion since he agreed to his actions, and even according to the opinion in siman 176 that in theft the partner has no portion, nevertheless since he agreed to this it is like any other partnership. But it is not clear to me, and it stands to reason that he is exempt even from his portion; and even according to that opinion that in theft a partner has a portion, that is only when he wishes to take a portion, but when he does not consent to take a portion, even though he said to him beforehand that he should take a portion, this is nothing, for there is no messenger for a sinful matter and he did not become obligated by his statement. And so it appears from the wording of our teacher, the Beit Yosef, who wrote in section 5: A partner who said to his partner, "Steal, and any damage that reaches you I will pay," is exempt, even though he benefited from that theft. Thus far his words. And his intention is not that he benefited and took a portion, for certainly in such a case he would be liable for his portion, but rather he means that he benefited by his statement, and from the wording "exempt" it implies entirely. And so it appears from the source of the law from the Responsa of the Rashba that he brought in his great book, who wrote the reason that he can say, "In a forbidden matter it is not pleasing to me to acquire." See there. [And so it appears from the Levush, see there.] And such is the primary rule in the law.