Sheluchin veShuttafin - Chapter 5

A stated in several instances within the Mishneh Torah, the prevailing local custom is the foundation of all business dealings. It is considered as if the partners agreed among themselves to sell the article according to these and these conditions (Sefer Me’irat Einayim 176:31).

Although there is a chance that he may make a greater profit in the other place, he also runs the risk of the merchandise being damaged, destroyed or stolen during the journey.

See Chapter 7, Halachah 7.

For giving credit is always a risk, and should not be undertaken without the consent of the other partner (Kessef Mishneh, based on Rabbenu Yerucham).

In such an instance, since this is the prevailing local custom, the partner’s consent is not required (Kessef Mishneh). There must, however, be a significant majority of people who extend credit for that to be considered significant. If some merchants extend credit and some require cash, all partners must consent before extended payments can be offered [Ramah (Choshen Mishpat 176:10).]

See Sefer Me’irat Einayim 176:34, which states that the partner must explicitly consent. Silence is not accepted as consent.

By acknowledging his consent, the colleague waives any claim he has against his partner (Kessef Mishneh).

For a kinyan is not necessary to formalize a colleague’s agreement to waive a right that he possesses (Hilchot Mechirah 5:11).

Compare to Chapter 1, Halachah 5.

Although the partner who took the additional risk is required to suffer a loss alone, it is not considered as if the partnership is dissolved. Thus, if there is a profit, it should be split, for the money was made with the partnership’s assets.

This concept is necessary to state, because one might think that the partner should be penalized for violating the rule stated in the previous halachah, that a partner may not occupy himself with other activities. Since he entered into another partnership, he will surely be involved in that business to a certain extent and will not be able to devote his energies to the first partnership, as desired by the other partners (Kessef Mishneh).

This refers to a heter iska arrangement (see the following chapter), in which one colleague invests money and the other does the work required.

From his own funds. and not funds belonging to the partnership. We do not fear that his personal interest in the same produce will cause him to disregard the partnership’s interests (Kessef Mishneh).

Lest the produce he bought for himself be of slightly lesser quality, and selling the two lots together drag the entire price down (ibid.).

The Turei Zahav (Yoreh De’ah 177:42) and the Siftei Cohen (Yoreh De’ah 177:65) interpret this clause as follows. As will be explained in Chapter 6, half of the money invested in a heter iska is considered as an entrusted object belonging to the investor, and half as a loan granted to the person handling the investment The person handling the investment should not purchase barley with the portion of the money that is an entrusted object, and wheat with the portion that is a loan.

Our translation is based on the commentary of the Kessef Mishneh, which explains that the intent is that if a loss is suffered, it should be suffered by both equally. He questions, however, why the Rambam mentions only a loss and not a profit. He notes that there are other versions of the text, which state bichavilah (“in the same package”), rather than bichabalah (“in case of loss”). He explains that in this way, one will not be more bulky than the other. Kin’at Eliyahu interprets bichavilah as meaning “in the same portfolio” – i.e., that it will be dealt with as one investment.

The Netivot HaMishpat, Chiddushim 176:35 explains that if the place to which the first partner desires to bring the merchandise is close to his locale, and he is willing to accept the entire risk, he is allowed to take the merchandise there.

Since this is the accepted time for the sale of this type of produce, it is considered as if a stipulation has been made for it to be sold at that time.

Since this is not the common practice, the partner’s consent is necessary.

Unfair gain. See Hilchot Mechirah, Chapters 12 and 13, which explain that if the difference between the value of an article and the price paid for it is one sixth, the sale is binding but the difference must be returned. If the difference is more than one sixth, the sale is nullified. In this situation, if the difference between the appraisal and the value of the produce was more than a sixth, the partnership is nullified.

One might think that the partners would waive any claims against each other even if the appraisal was not correct. Therefore, the Rambam teaches that this is not the case, and the evaluation must be fair.

Since the produce was mixed together before it was evaluated, one might think that the partners would certainly waive any claims against each other. Nevertheless, as the Rambam states, this is not the case, and each one is given an appropriate share (Sefer Me’irat Einayim 176:13).

According to the Shulchan Aruch (Choshen Mishpat 178:1), this applies even if one of the partners asks the customs collectors to waive the fee. This is evident from the second clause in this halachah.

According to Sefer Me’irat Einayim 178:1, this applies only when the customs collector makes that statement on his own initiative.

The Rambam’s ruling here echoes his statements in Hilchot Gezelah 12:10.

For all the profits from the efforts of the partners on behalf of the merchandise in the partnership are shared equally.

As the Rambam explains in Hilchot Gezeilah, with this statement he is considered to have dissolved the partnership. Since the other partner did not endeavor to save his share of the merchandise, we assume that he despaired of its recovery. Hence, the partner who saved it is able to acquire it for himself. The Tur and the Ramah (Choshen Mishpat 181:2) differ and maintain that if the other partner could also have saved the property, more stringent rules apply. The partner who saved the property may keep the entire share of the merchandise that belongs to him. Any merchandise that belongs to the other partner must be returned to him, even if the partner who saves the property intends to take it for his own.

By people at large.

This applies even if the article remained in the possession of the one partner for a significant amount of time [Shulchan Aruch (Choshen Mishpat 179:1)]. As long as the partnership continues, the article is assumed to be owned jointly, for we assume that partners are not demanding of each other (Sefer Me’irat Einayim 179:1). Once the partnership is dissolved, however, this principle no longer applies, and the partner who is in physical possession of the article is considered to be its owner unless it is proved otherwise (Kessef Mishneh; Ramah).

The partner in whose domain the article is located may seek to claim it as his own, protesting that that since it is in his possession, his claim should be accepted as true unless proved otherwise by the other partner. We do not accept this argument, because the article in question was known to belong to the partnership, and the fact that it is in his physical domain is therefore of no consequence.

I.e., witnesses who testify according to his position (Kessef Mishneh).

See Chapter 4, Halachah 4, for details regarding when the partnership may be dissolved.

For three people are considered a Rabbinical court.

These criteria are required because in this instance, there is no question of Torah law that must be decided. Instead, the matter concerns the division of property, and what is most important is that the person be capable of evaluating the property’s worth, and trustworthy so that there will be no deception.

It is as if the partnership were never dissolved. Therefore, if he profited on his investment, both panners share in the gain. Similarly, there are opinions that maintain that even if he invests the money and suffers a loss, the partnership must share the loss. See Tur and Ramah (Choshen Mishpat 176:18).

That the division must be made in the presence of three people.

For the quality of produce is dependent on many factors and requires an expert to evaluate. The same applies to any other type of merchandise.

For there is no need for an evaluation. All that is necessary is to divide the money physically.

For in this instance, the money also requires evaluation.

In Hilchot Avodat Kochavim 5:10, the Rambam states that this prohibition is a derivative of the commandment: “Do not make mention of the name of other deities.”
The Hagahot Maimoniot and the Ramah (Orach Chayim 156:1) state that in the present age, leniency can be granted. For in the present age, gentiles no longer swear in the name of false deities. Although they mention the name of their false deity, their intent is to refer to God, Creator of heaven and earth. Although they also associate Him with their false deity, shituf – the association of other entities together with God – is not forbidden to a gentile.
The difference between the Rambam’s ruling and the Ramah’s depends on their conception of the nature of Christianity. In several sources (e.g., the uncensored version of Hilchot Avodat Kochavim 9:4), the Rambam writes that Christianity is considered as idolatry. The Ramah, by contrast, rules more leniently concerning the matter. Seemingly, there would be no difficulty with regard to entering into partnerships with Arabs and others who do not worship false deities. In practice, in the present age, it is frequent – even within the Torah community – for partnerships to be established between Jews and non-Jews.
See also the Shulchan Aruch (Choshen Mishpat 176:51), which states that if one did enter into a partnership with a gentile and the latter is required to take an oath, that oath may be accepted.

See Hilchot Shemitah V’Yovel 6:1.

See Hilchot Bechorot 5:9.

See Hilchot Ma’achalot Asurot 8:16.

See Hilchot Terumah 12:21.

For the money was made with the partnership’s assets.

This expression indicates a conclusion reached by the Rambam for which he does not have explicit support from other sources.

And violated our Sages’ directives. Since doing business with these substances is forbidden, it is considered as if the person departed from normal business practices and thus is required to bear the burden of the loss himself (Sefer Me’irat Einayim 176:39).

Sefer Me’irat Einayim 176:50 explains that both partners have the right to tem1inate the agreement. The surviving partner can say that he was prepared to enter into a partnership with the deceased because he thought that he was a successful businessman, but did not hold that opinion regarding his heirs. The heirs can say that although their father was prepared to do business with the surviving partner, the prerogative is now theirs, and they do not desire to do so.