Siman 93

Even though one does not swear on claims of doubt alone, except for guardians whom the Torah obligated there, nevertheless our teachers, of blessed memory, ordained regarding several matters to swear even on a claim of "perhaps." And why did they ordain so? Because all of these permit themselves the prohibition of stealing from their fellow through the claim of the evil inclination—that they are permitted to receive payment for their exertion even without the knowledge of the owner of the money. Therefore, the sages imposed an oath upon them, because this doubt has a basis for him to suspect him. Nevertheless, one of the great later authorities wrote that this is specifically when he is suspect in the eyes of the claimant and he has some modicum of proof; but if he admits that he has no proof at all, he does not make him swear [Taz]. However, in all the words of our teachers, the early authorities, I have not found a hint of this. Furthermore, from the wording of the Mishnah in the seventh chapter of Shevuot it does not imply so, as we learned there: if he said to him, "What are you claiming of me? It is my will that you swear to me," he is liable. This implies that it depends on his will alone. Furthermore, since the sages, of blessed memory, were concerned about the permitting of the prohibited as has been explained, why should the one who makes him swear not be concerned even when he has no proof? There is further proof from the Yerushalmi there, which said that specifically one who conducts business without an accounting can be made to swear, but when he conducts business with an accounting he cannot make him swear, lest there was an error in the accounting. And if we say that it deals with a case where he has some modicum of proof, why can he not make him swear even with an accounting? There is further proof from Ketubot [86b] where Rabbi Eliezer and the sages disagreed regarding a woman who is not a storekeeper, whether the husband can make her swear; for Rabbi Eliezer holds that he can make her swear, and says his reason is because you have no woman who did not become an apotropia during her husband's lifetime for one hour over her spindle and over her dough, see there. And if we say that it is specifically when he has some modicum of proof, is it because she was appointed for one hour over the dough that there is proof that she stole from him? Another of the great authorities wrote that specifically on a claim of "perhaps" does he make him swear a severe oath, but on a certain claim he only makes him swear a hesset oath, because the defendant has a presumption that a person does not have the audacity [Netivot HaMishpat]. And I do not know what the difference is between this and that. We have already explained at the beginning of siman 75 and in the rules of migo that it is not due to the reason of audacity alone that the Torah exempted one who denies everything, see there, but rather it is a decree. Furthermore, since the Tur and the SeMag wrote that these swear even on a claim of "perhaps," it implies all the more so on a certain claim. And logic dictates so, for how is it possible that in one matter a claim of "perhaps" would be more severe than a certain claim? Therefore, in my humble opinion, one makes them swear in all of these, whether on a certain claim or on a claim of "perhaps," and even if he has no proof at all that he concealed anything from him.

And these are those who swear on a claim of doubt: partners, sharecroppers, and apotropasim whom the beit din appointed over orphans. However, if the father of the orphans appointed him during his lifetime, he shall not swear, for if we require him to take an oath, he will not agree to be an apotropas. But in a case where the beit din appointed him, we are not concerned about this, because it is an honor for the apotropas when the beit din appoints him, and he will not refrain from being an apotropas even when he becomes obligated in an oath. And in a claim of certainty or in a case of partial admission, even one appointed by the father of orphans shall swear, as will be explained in siman 290. And a man's wife, when her husband seated her as a shopkeeper or she transacts in her husband's business within the house; but if she is only appointed over the needs of the house, food and drink, he cannot make her swear on a claim of doubt, as is written in Even HaEzer siman 97. And likewise a member of the household who transacts in the business of the homeowner, or one of the brothers who busies himself for the sake of his brothers without payment for his labor, as he might permit it to himself. But when he busies himself for payment, one does not make him swear on a claim of doubt, for he does not permit it to himself. And likewise regarding a member of the household, such is the law: when he busies himself for payment, we do not make him swear on a claim of doubt. Therefore, regarding one who receives an iska for half the profit, since he gives him payment for his labor, one does not make him swear on a claim of doubt. And likewise the employees of a businessman who take wages, one does not make them swear on a claim of doubt. And the reason we make a partner and a sharecropper swear is because they only take their portion, and they permit it to themselves with the reasoning that they labor excessively in the portion of the second party. Therefore, if for their labor they take a separate wage, we do not make them swear on a claim of doubt. And likewise an apotropas, when he takes a wage for his apotropas-service, we do not make him swear on a claim of doubt [so it seems according to this opinion]. And there are those who disagree in all of this and hold that even when taking a wage, they permit it to themselves, for behold, their permitting it to themselves is not based on actual permission, and the inclination for money overpowers them to permit it to themselves. And if so, even when they take a wage, the evil inclination will find for them fabricated permissions. Therefore, all of these swear on claims of doubt even when they take a wage. And so it is proven from the Rambam and the Rashba, of blessed memory, as is proven from their words which will be explained in section 7. And such is the custom of the world according to this opinion [Noda BiYehuda siman 30]. And so it appears proper to rule, for it is known that the inclination for money is very powerful and finds for itself many permissions, and the primary enactment of the sages was so that they would be precise in their accounting.

When he comes to administer an oath to him, he administers an oath with the holding of a sacred object, lest he stole from his portion, or lest he withheld anything of his own, or lest he was not precise in the accounting between them; and he shall swear regarding all of this that he did not steal, and did not withhold, and was precise in the accounting. And none of these swear on a claim of doubt until the one administering the oath suspects him of two ma'ah of silver, whether in principal or in profit, for profit is like principal. And the sages, of blessed memory, did not enact this oath to apply to less than what the Torah required in the case of one who admits to a part, though an admission to a part is not necessary here [Beit Yosef and Shach, and as is apparent from Ketubot 86b; see there]. And all of these, it is within one's power to administer an oath to them whenever they wish, and they do not need to wait until they divide and administer the oath to them at the end. Regarding his wife, some say that the husband cannot administer an oath to her until the claim for her ketubah, as is written in Even HaEzer siman 97; see there.

Even though there are no witnesses that he is his partner or his aris, but he himself admits and says, "I am his partner and I did not steal anything," nevertheless he must swear. And even though he has a migo, for had he wanted, he could have said, "I am not his partner at all," because we do not say migo to be exempt from an oath. For the entire reason for migo is that we say he is certainly telling the truth, for if he wanted to claim a lie, he would have claimed this other claim. Therefore, regarding an exemption from money, he certainly weighs his words in order to be exempt from money, and similarly witnesses are very precise in their testimony when they testify in beit din. But regarding an exemption from an oath, he does not weigh his words as much, and it is possible that the migo claim did not enter his mind [it appears to me]. And in siman 296 another reason for this will be explained. And some say that we do say migo just as regarding money, for an oath comes to the status of money when he does not wish to swear [the Rosh]. Therefore, if there are no witnesses that he is his partner, he cannot make him swear. And even though it would be a migo of great audacity had he said to him that he was not his partner at all, however, since this oath is only by rabbinic enactment, therefore with any migo whatsoever we exempt him from the oath [Sma, Shach, Taz]. But regarding an oath of the Torah, we do not say such a migo, as is written there.

Just as he himself can administer an oath based on a claim of uncertainty, so too if he died, the heir administers an oath to his father's partner, or his sharecropper, or his household manager based on a claim of uncertainty. And even if his predecessor did not command him to administer an oath to him, he may administer an oath to him when he suspects him. If their father commanded not to administer an oath to him because he is trusted by him, the heir does not have the ability to administer an oath to him regarding the business conducted during the lifetime of his predecessor. Whether an heir can administer an oath to the wife of a husband who died has been explained in Even HaEzer siman 98; see there.

Partners where both of them are engaged in the business, each one can administer an oath to his fellow. And even if only one is engaged in the business, but he delivers to the second their merchandise or their money without weight, measure, or count, this one who is engaged can also administer an oath to his fellow. But if when he delivers to him merchandise or money, he delivers it to him by weight, measure, or count, he does not have the power to administer an oath to him on a claim of doubt, unless he has a certain claim against him like any plaintiff and defendant. And only the one who is not engaged can administer an oath to the one engaged even on a claim of doubt. And when both of them must swear, who swears first depends on the assessment of the dayyan [Pitchei Teshuvah]. And if the dayyan cannot decide, they shall cast a lot. But they should not swear together [Shevut Yaakov], for perhaps there will be a contradiction from one to his fellow and a false oath from one of them will be clearly apparent, as we wrote regarding a shopkeeper and laborers in siman 91. And so too in every place where two litigants must swear, there is no law of precedence among them even when the oath of one is more severe than that of his fellow, and the main thing depends on the assessment of the dayyan according to the nature of the matter.

The Rambam, of blessed memory, wrote in chapter 9 of Shlukhin: One who sends an object with his fellow to sell it, or sent money with him to buy him fruit or merchandise, even though he did not give him payment for this and he has no share or benefit in this mission, since he transacted with his fellow's money, he is like a member of the household, and he may administer an oath to him based on a doubt that he did not withhold anything of his. Thus far his words. And the Rashba, of blessed memory, disagrees in this, for there is no logic at all to obligate a messenger based on a claim of "perhaps," for if so, one who sends a messenger to buy him fruit for a dinar would impose an oath upon him and lock the door before all messengers. Furthermore, he brought proofs for this, and therefore wrote that the messenger is not obligated to swear except when he comes to take, such as when he takes a portion of the profit, for he is like a partner, or if he incurred expenses and comes to take, similar to what is explained in siman 91, and then there is no distinction whether he takes payment or not. Thus far his words. And our teachers, the authors of the Shulchan Aruch, brought these two opinions in section 4. And it appears to me that certainly even the Rambam, of blessed memory, does not intend that every messenger should swear, for it is no logic at all that if one sends money or objects to be brought to some place, he should impose an oath upon him based on a claim of doubt [and so it appears in Kiddushin 43b, see there], even if he takes payment for his mission; or if one sends his fellow to buy for him or sell for him some object, that he should impose an oath upon him based on a claim of doubt. And the intention of the Rambam, of blessed memory, is when it was by way of commerce, such as if he sent him to sell from his belongings or one precious object like a gemstone, or gave him money to buy him merchandise or fruit for commerce. And his main intention is to teach us that the oath of doubt of a member of the household is not specifically when he deals with all his affairs, but even if he handed over to him one commercial matter to buy or sell, since the matter is characterized by the name "commerce" and he handed it over to him, he can administer an oath to him, and this is a member of the household. According to this, they do not disagree at all. And from his wording we learned that one who takes payment also must swear, from what he wrote "even though he did not give him payment etc.," it implies explicitly that all the more so when he gave him payment. And so it is explained from the wording of the Rashba who wrote that there is no distinction between one who takes payment and one who does not take, and as we wrote in section 2, for such is the primary ruling.

The sages did not grant him this power to administer an oath on a claim of doubt except during the entire duration of the business dealing, for then he is always able to administer an oath to him, whether at the beginning of the business, in the middle, or at the end. But when they have separated from one another, such as when they divided the partnership or the sharecropping, or the business was completed and the wife was divorced, and the member of the household separated from him from being involved in his business, and the agent brought him the merchandise or the money from the sale of his merchandise and he remained silent and they went their way and he did not claim against them immediately, they are thereafter like any other person, and he does not administer an oath to them on a claim of doubt. He can only impose a cherem set by the beit din upon him that he did not conceal anything from him during the time he was his partner, or his sharecropper, or his wife, or a member of his household; and even in this, he must show a basis for suspicion that he has against them [it appears to me]. However, if he had a claim of certainty, he may always administer an oath to him and roll upon him whatever he desires from the previous business or from another business, according to the law of gilgul shevuah that will be explained in siman 94. And so too, if after some time he became obligated to him in any oath, whether from the Torah or from the words of the sages or a shevuat hesset, he can roll upon him whatever he desires from the previous businesses that he did not conceal from him. However, if the partners exempted one another from an oath, and similarly a sharecropper, a member of the household, and his wife to whom he gave trustworthiness, he cannot roll an oath upon them even when they became obligated to him in an oath from another matter; and so too, if he waived the oath for them, he does not have the power to roll [Urim VeTummim].

If partners divided the partnership and debts remained for them with others, they cannot administer an oath to one another out of doubt, for they have already divided, and the remaining debts are a known matter and are considered as if divided; when the debtor pays, each shall take his portion. So too, if there remained in the hand of one from his fellow a fixed matter, whether money or merchandise, even though he has not yet taken them, this is as if they divided. However, as long as there remains a matter that they have not yet divided and they do not know its measure or its weight, or if there remained for them a matter from the business for which they have not yet made an accounting and it is not known to each one how much will reach his portion, the partnership is still as if it exists and they may administer an oath to one another. And this is specifically regarding a matter about which they are fastidious, even if it is a small part of the business; but if they are not fastidious about this and did not concern themselves at all to make an accounting for such a small matter or to divide it, it is not relevant that because of this the name of partnership should still be applied [it appears to me]. So too, two who borrowed from one and engaged in business and lost everything and did not come to an accounting, it is not as if they divided and they must swear to one another [Sma]. But if they did not concern themselves to make an accounting because they saw that it was entirely a loss and they despaired, it is as if they divided [it appears to me]. And if one of the partners divided the partnership without the knowledge of his fellow, it is nothing, and the second can administer an oath to him, for the division of one of them is not a division regarding this matter [our teacher, the Beit Yosef]. And the one who divided, it is possible that he cannot administer an oath to the second out of doubt, since he divided the partnership and it is as if he removed himself from his fellow and waived his oath. And if the wife of the partner and his offspring engaged in the business of the partnership, the second partner can administer an oath to all of them; and even if they exempted one another from an oath, nevertheless, he can administer an oath to his wife and offspring unless he exempted them explicitly [Urim VeTumim]. And we have already written that the partner can administer an oath whenever he desires, but a husband regarding his wife, some say that he cannot administer an oath to her as long as she is not claiming her ketubah, and it was explained in Even HaEzer siman 97, see there.

If one of them sued his fellow and said, "Swear to me, for the partnership still exists," and this one responds to him, "We have already divided," or if the claimant says, "It is true that we have already divided, but there was a condition between us that I may administer an oath to you at any time I desire and you have not yet sworn to me," and this one denies it, he cannot administer an oath to him based on a claim of doubt. And even if the defendant says, "We divided, and such-and-such remained for you with me, and that which remained you established against me as a loan or left it as a deposit with me, and we have already finished the accounting of the business," he cannot administer an oath to him, neither the oath of partners nor a heset oath based on a claim of doubt. And he cannot administer to him even a heset oath that they already divided or that they were never partners if the defendant claims so. And even by means of gilgul he cannot administer an oath to him, because one does not administer a heset oath nor apply gilgul except for a claim that, if he were to admit to it, he would be liable for money. But a claim that even if he admits he would only be liable for an oath—such as in this claim, if the defendant were to admit that they had not yet divided or that he was his partner and there is only an obligation of an oath—he does not swear regarding it, as I wrote in siman 87, section 25. And even by means of gilgul he does not swear in this case, as will be explained in siman 94, section 1.

If he claimed, "You are still my partner and I have such and such remaining with you," and this one says, "We have already divided and nothing of yours remains with me," or if he says, "I was never your partner," behold, the defendant shall swear a shevuat hesset that he has nothing of his in his possession, and he includes through a gilgul against him that he never robbed him and that he did not conceal from him profit in which he had a share [Shach]. However, he does not include through a gilgul the language that he was not his partner or that they already divided, for the reason that was explained in the previous section, since there is no monetary obligation in such an admission.

If the plaintiff claimed, "We are still partners and I have the right to adjure you with a claim of doubt," and the other party says, "We were never partners," and the plaintiff brought witnesses that he was his partner, and the defendant subsequently retracted and said, "We have already divided," we do not listen to him, for he has been established as a liar regarding this oath and is obligated to swear the oath of partners. However, regarding the oath, he is believed, for he was not established as a liar regarding the money, as it is possible that even though he was his partner, nothing of his partner's remained in his possession; but regarding the oath, he was established as a liar. And if he said afterward that he swore, he is not believed until he swears before witnesses [Sma], and similarly in any case like this.

A partner who claimed against his fellow regarding one detail of the details of the partnership, such as claiming that a certain condition existed between them and the other says this condition did not exist, or claiming "my principal was one hundred gold pieces and I received fifty" and the other says "your principal was only fifty," or claiming "this merchandise is mine" and the other says "it belongs to both of us," and all similar claims—the choice is in the hand of the claimant: either he administers to him now the general shuvat hashutafim and includes all these details within the severe oath via gilgul, or he does not administer an oath to him now except for a shevuat hesset on the specific detail he is claiming, like any claimant and respondent, and afterwards in the course of time, if he wishes, he may administer to him the shevuat hashutafim as well. The defendant cannot say, "Why should I swear to you another time the shevuat hashutafim? When you want to administer an oath to me, it is better for me to swear the shevuat hashutafim now and you may include via gilgul whatever you wish," as in other claims where the defendant is able to say so, as I wrote in siman 87, section 23. And the reason appears to me to be that, granted, regarding certain claims, certainly the defendant can say so, "I will not swear twice"; but in this case, where he now claims a certain claim against him and obligates him in a shevuat hesset, and regarding the shevuat hashutafim he does not yet know if he will obligate him or not—and it will appear according to the matter, if there will be grounds for him to suspect him, he will administer the oath, and if not, he will not administer the oath—certainly the claimant can say so, and he shall swear a shevuat hesset for the time being. And if he admitted to a part, he shall swear a shevuat de'oraita, and afterwards, if he sees grounds to suspect him, he will administer to him the shevuat hashutafim. However, in a case of denying everything, when he administers to him now a shevuat hesset, the defendant can reverse it upon the claimant, as I wrote in siman 87, for a shevuat hesset can be reversed, whereas a Torah oath and an oath of doubt cannot be reversed [so it appears to me in explanation of the Shulchan Aruch, section 12, see there].

There is a great principle regarding the oath of partners: a partner is not believed by his oath to extract from his fellow, but only to retain what is in his hand, for a partner is not among those who swear and take, but rather among those who swear and are exempt. To extract, he is not believed except through absolute clarification or through witnesses, and not through his oath. Only if he claims that his fellow knows of what he is claiming from him—that it is due to him according to the accounting he states—or it is possible that he knows of this [Sma and Shach], he can administer to him the oath of partners and roll upon him that he does not know of this or that the accounting is not according to his words [and see in siman 94, section 4, what I wrote there]. And if the second partner did not engage at all in the business and he cannot administer to him the oath of partners, if he claims with certainty that his partner knows of his accounting, he administers to him a heset oath; and when he does not claim with certainty, he cannot administer an oath to him but only imposes upon him a cherem stam. Therefore, Reuven and Shimon who were partners in a business where this one placed a maneh and that one a maneh, and the business was for an amount greater than this, such as if they took merchandise on credit and the like, and Reuven claims there was a loss of three manehs and claims fifty from Shimon's pocket, he cannot extract the fifty from him by swearing that there was a loss of three manehs. He is only believed regarding Shimon's maneh that is in his hand. Furthermore, even if Shimon has in his hand a maneh from the partnership, he is not believed to extract this maneh from him; rather, the maneh remains in the possession of both of them and they divide it. But Shimon cannot say, "Since he is not believed to extract from me, I will not give him anything from the maneh in my hand." The reason is that since Reuven is believed by his oath regarding the maneh in his hand that he lost, consequently the maneh in Shimon's hand remains in the possession of both of them and they divide it between them. And if the shares were not equal, they divide according to the value of the shares. And what is Reuven's remedy? If he admits that Shimon does not know of all the loss he shows in his accounting, he has against Shimon only a kabbalat cherem, for Reuven is not believed to him by his oath regarding the accounting. And if he says that it is possible that Shimon knows, he shall administer to him the oath of partners and roll upon him that he does not know. And if Shimon did not engage at all in the business, he cannot administer an oath to him unless he claims with certainty that Shimon knows, then he administers to him a heset oath that he does not know of the loss and that Reuven is not believed to him in his accounting and his oath; for if he believes him, he must necessarily pay him according to his accounting. And like this we judge even if one placed more money in the business than his fellow, and the dayan shall understand according to the principle we explained as to what he is believed by his oath and what he is not believed. And regarding the sum that he cannot extract from Shimon, he does not need to swear about this, for why should he swear since he does not have the power to extract from him based on his oath? And two who placed into the purse, this one a maneh and this one two hundred, and did not stipulate between them how much each one's share shall be—how they divide in profit and loss will be explained in siman 176 from section 10 until section 19, see there. And if Shimon says that he knows of the loss, but only fears that perhaps Reuven profited elsewhere from the partnership, he is obligated to pay, provided that Reuven swears a heset oath that he did not profit from elsewhere, or if he admits that he profited, how much he profited [Urim VeTummim and Netivot HaMishpat].

And similarly, when one of the partners claims that a maneh is owed from the partnership to a certain person, if he had in his hand enough to cover the debt and was able to give it to that person, he is believed through a migo, for if he wanted he could have said "I have nothing in my hand," and the debt is given to that person. After he has paid the debt, they make an accounting and divide between them what remains of the partnership. But if it was not in his hand to give without it being known to the partner, and he has no migo, he is not believed to extract from money or merchandise known to belong to the partnership, and certainly not to extract from his partner and give to that person, for we fear perhaps they made a conspiracy between them in order to extract from the partner. And even if there was a loan with a document in the hand of this person, if the document is written in the name of this partner alone, the second is not obligated to pay anything. And if he claims that his partner certainly knows that this debt which is upon me is from the business of the partnership and that the debt has not yet been paid, he can administer to him a shevuat hesset that he does not know that this debt is owed from the business of the partnership and that it has not yet been paid. Or, if the second is also occupied with the business, he shall administer to him a shevuat hashuftafim, and this he shall swear by means of gilgul. And when he swears, then he [the first partner] shall pay the entire debt from his own pocket. And when he administers the oath by means of gilgul, then even if he does not claim that his partner certainly knows, but it is a doubt to him if he knows, he can also roll it upon him by means of shevuat hashuftafim [so it appears to me, and similarly in the previous section; and the Taz disagrees and holds that even with gilgul one does not administer an oath in a case of doubt, and it requires further study to require this of a partner; and see Sma subsection 26 and Shach subsection 15, and delve into this].

Reuven and Shimon are partners, and a promissory note was issued against Levi in the name of Shimon for one hundred dinars from the partnership funds, and Shimon said, "I have been paid by Levi and I returned the money to the partnership purse," or if he said, "I initially set a time for him of a year or more," if the note is in the hand of Shimon, since he has a migo that he could have returned it to Levi, he is believed with a migo [Urim VeTumim]. But if the note is not in his hand, or if the note was established in beit din or by witnesses in a manner that he has no migo, Shimon is not believed. And how do we judge in this case? Levi is already exempt, or he can extend the time based on the admission of Shimon, and against Reuven, Shimon is not believed without proof and he shall pay from his pocket, or if he extended the time for him, he shall pay for the time being from his pocket and claim from Levi at the time he stated. And all this is when it is not explicitly stated in the note that the money belongs to the partnership; but when it is explicit in the note that it is partnership money, even though it was written in the name of Shimon alone, if Shimon does not have a migo, Shimon is not believed in his admission except regarding his portion and not regarding the portion of Reuven, and Reuven can claim his half from Shimon, or from Levi if he cannot extract it from Shimon. But when the note is in the hand of Shimon and he has a migo, even in such a case Shimon is believed in whatever he says, since the note is in his name alone [Sma siman 108 subsection 29]. And some say that the reason is not because it was written in his name, for since it is written that it is from partnership money, a migo does not avail in such a case as written in siman 108, but rather that here Shimon is believed when the note comes from his hand and he has a migo because a partner's law in this is like a third party, for behold, he trusted him and he was able to do whatever he wished, and therefore he is believed with a migo [Bach and Urim VeTumim]. And according to this, even if the note was written in the names of both of them, if one of the partners had a migo, he would be believed; but according to the first opinion, he is not believed even with a migo when it was written in the names of both of them [it appears to me].

Reuven and Shimon are partners, and Reuven bought merchandise from a star-worshiper and sold it to Levi, and Levi became obligated to pay the star-worshiper. And he [the star-worshiper] did not want Levi's security alone, so Reuven wrote a document to the star-worshiper that if Levi does not pay him at the appointed time, he [Reuven] would pay him. Afterwards, Reuven and Shimon divided the partnership. Reuven has the power to compel Shimon to write him a document that if Reuven clarifies that he was forced to pay the star-worshiper, Shimon will pay him his portion, and for whatever expenses he incurs regarding this matter, whatever he clarifies. And if he is unable to clarify the expense, the experts in the matter shall appraise it. However, with an oath he cannot extract the expense from Shimon; and it is not similar to what was written in siman 91, that in any place where this one knows and that one does not know, the one who knows shall swear and take, for there he must pay him against his will since he commanded him to incur expenses, whereas here, he did not command him [Urim VeTumim]. And there is one who wishes to say that Reuven does not have the power to extract his portion from Shimon unless Reuven clarifies with witnesses that Levi did not pay the star-worshiper; but without this, even if Reuven was forced to pay him, Shimon does not need to pay his portion, since the star-worshiper comes with a pretext against him, a person is not seized for his fellow, as will be explained in siman 128 [Sma]. However, from the words of our teacher, the Beit Yosef, in siman 176 in his book Bedek HaBayit, it does not appear so regarding the law, for since Reuven acted for the benefit of the partnership, and if Shimon had been there he also would have been forced to sign the document together with Reuven, and how did Reuven sin in this? Therefore, if Reuven was only forced to pay him, Shimon is obligated to pay his portion. And from either side: if Levi truly did not pay him, behold they are obligated to pay; and if Levi paid and did not receive a receipt from the star-worshiper and they are exempt, behold Levi was negligent in this and not Reuven [and the Sma did not see the book Bedek HaBayit as is known; and see in Urim VeTumim and in the Responsa of the Rosh he took the common way of the matter, and so it appears from siman 131, see there; and the words of the Netivot HaMishpat in siman 176 section 37 were not clarified to me, and delve into this].

An incident occurred regarding one of the partners who sued the second, since from a business dealing he had with a certain extortionist, he erred in the accounting and brought the money into the partnership; and he fears lest he [the extortionist] remember this and he will be required to return it, and therefore he requests that the second one make him a document for this, that when he will need to pay, he [the partner] will pay him his portion. And he further sued him that since he had pledges and sold them, and he fears that a loss will come to him from this, he requests that he make him a document that when there will be a loss, he will pay him his portion. And the second one answers him: "Behold, you also did not give a document, and who knows if you will come to a loss? And when you come to this, I will pay you my portion, and why should I give you a document now?" And they ruled that the law is with him, for he does not need to give a document, but rather he should admit before witnesses that the money, the sum of which is such and such, his partner brought into the partnership from the error; and he should also admit before them regarding the pledges that he sold, that if a loss reaches his partner from this, he will pay his portion. And the witnesses shall write for the claimant the admission of the second and give it into the hand of the claimant as proof, so that the second will not be believed to claim afterward that he did not bring the money into the partnership, and also regarding the pledges, so that he will be secure when he loses. And there is a practical difference between whether he would write a document himself or a document of admission from the witnesses, for with the document itself, the second would fear that when he would need to pay him, he would also collect from his purchasers who bought from the second afterward, with his claim being that they should have been careful in buying from him since perhaps he would need to pay him [Taz].

There was another incident involving Reuven and Shimon, who were partners, and Reuven's brother had money. Reuven said to his brother, "Exert yourself with us in the business of the partnership and place your money with ours, and take profit according to your money." Shimon did not know of this, and afterward Shimon claimed, "Since you did not inform me of this, I do not have to give your brother from the profit; give to him from your portion." Reuven says, "Since we were partners, each of us has the power to do whatever appears to be for the benefit of the business, and I saw the benefit of the business in bringing my brother and his money into the partnership, and why should I lose because I did not inform you, since I acted for the benefit of the business?" And they ruled that the law is with Reuven, and his brother shall take his portion of the profit according to his portion of the money as Reuven stipulated with him. However, it is within Shimon's power to impose an oath upon him that his intention was for the benefit of the partnership. And this is specifically when he brought his brother in with money, but if he brought him or another man in to take a portion of the business without money, he is certainly not believed to say so unless he clarifies with clear proofs that the benefit of the business required this [so it appears to me]. And if the partner knew of this, that he brought this other person into the business to take a portion, and he remained silent, silence is like admission, and he takes a portion in any case. And so too, if he explicitly protested against him, even if he brought him in with money, he does not take from the partnership, but only from the portion of this partner who brought him in [as is apparent from the poskim].

If they came to divide the partnership and one of the partners produced some promissory notes from so-and-so and so-and-so to whom he sold on credit, and the second partner claims, "I did not command you to sell on credit, and I will not take any of the notes for my portion; take the notes for yourself and I will take my portion from cash and merchandise"—if the custom of the city is to sell on credit, the second partner must accept them, but he may administer an oath to him that these credits are from the business of the partnership and that he made them for the benefit of the business, or he must clarify before the beit din through a clear estimation that this was for the benefit of the business, and he will be exempt from the oath [it appears to me]. And if it is not the custom of the city to sell on credit, the second partner shall not take his portion in credit unless the first one clarifies with absolute clarity that he was forced to do so and that it was impossible to act otherwise [it appears to me]. The general rule of the matter: whatever one partner does that appears to be for the benefit of the business—such as in the previous section where he brings in another person with money, or where he sold on credit in a place where the custom is so—even though he did not inform the second partner, nevertheless the second partner is forced to accept and cannot give him only a receipt, since this one claims with certainty that he acted for the benefit of the business and did not deviate from the way of businessmen. But if he deviated from the way of businessmen, such as if he brought in another person without money or sold on credit in a place where the custom is not so, if the second partner knew and remained silent, silence is like an admission; and if he did not know, he does not need to accept it in the accounting unless the one who acted clarifies with clear proofs that he was forced to do so for the benefit of the partnership. The main laws of partnership are explained in siman 176 [In the Yerushalmi it says that those who swear on a doubt only do so when they did not conduct the business with an accounting, but with an accounting one cannot administer an oath on a doubt; and all the poskim omitted this, for in our Shas it does not imply so, and the words of the Pnei Moshe there are puzzling].