Sheluchin veShuttafin - Chapter 6

1When two partners both do business with the money belonging to the partnership, even if the money was originally invested by only one of them,1 their relationship is referred to as a partnership. If they lose or they profit, the loss or the profit is divided equally,2 or they may stipulate any other division of the profits or the losses, as we have explained.אשְׁנַיִם שֶׁהֵן נוֹשְׂאִין וְנוֹתְנִין בְּמָמוֹן הַשֻּׁתָּפוּת, אַף עַל פִּי שֶׁהַמָּמוֹן שֶׁל אֶחָד מֵהֶן - הֲרֵי זֶה נִקְרֵאת שֻׁתָּפוּת; וְאִם פָּחֲתוּ אוֹ הוֹתִירוּ, הֲרֵי הוּא לָאֶמְצָע. וְיֵשׁ לָהֶם לְהַתְנוֹת בַּשָּׂכָר וּבַהֶפְסֵד, כָּל מַה שֶׁיִּרְצוּ כְּמוֹ שֶׁבֵּאַרְנוּ.

If, however, only one of the partners was doing business with the money belonging to the partnership, even if the money was originally invested by both of them, this type of partnership is called an esek (an investment agreement). The person who does the buying and selling is called an administrator, for he alone is the one involved in the transactions. And the partner who is not involved in the business dealings is referred to as the investor.אֲבָל אִם הָיָה הָאֶחָד בִּלְבָד הוּא שֶׁנּוֹשֵׂא וְנוֹתֵן בְּמָמוֹן הַשִּׁתּוּף, אַף עַל פִּי שֶׁהַמָּמוֹן שֶׁל שְׁנֵיהֶם - הֲרֵי זוֹ הַשֻּׁתָּפוּת נִקְרֵאת 'עֵסֶק', וְזֶה הַנּוֹשֵׂא וְנוֹתֵן נִקְרָא 'מִתְעַסֵּק', שֶׁהֲרֵי הוּא לְבַדּוֹ מִתְעַסֵּק בַּמַּשָּׂא וּמַתָּן, וְשֻׁתָּפוֹ שֶׁאֵינוֹ נוֹשֵׂא וְנוֹתֵן, נִקְרָא 'בַּעַל הַמָּעוֹת'.

2Our Sages ordained3 that whenever a person entrusts money to a colleague to use for business purposes,4 half of the money should be considered a loan. The administrator is responsible for this money even if it is destroyed by forces beyond his control.5 The second half is considered an entrusted object, and the investor is responsible for it.6 If the half that is considered an entrusted article is stolen or lost, the administrator is not liable to pay.7 Therefore, any profit that is earned by this half of the investment will belong to the investor.בתִּקְּנוּ חֲכָמִים: שֶׁכָּל הַנּוֹתֵן מָעוֹת לַחֲבֵרוֹ לְהִתְעַסֵּק בָּהֶן - יִהְיֶה חֲצִי הַמָּמוֹן בְּתוֹרַת הַלְוָאָה, וַהֲרֵי הַמִּתְעַסֵּק חַיָּב בְּאַחֲרָיוּתוֹ אַף עַל פִּי שֶׁאָבַד בְּאֹנֶס, וְהַחֵצִי הָאַחֵר בְּתוֹרַת פִּקָּדוֹן, וַהֲרֵי הוּא בְּאַחֲרָיוּת בַּעַל הַמָּעוֹת, וְאִם אָבַד אוֹ נִגְנַב הַחֵצִי שֶׁל פִּקָּדוֹן, אֵין הַמִּתְעַסֵּק חַיָּב לְשַׁלֵּם; וּלְפִיכָךְ יִהְיֶה שָׂכָר זֶה הַחֵצִי אִם הִרְוִיחוּ, שֶׁל בַעַל הַמָּעוֹת.

According to this construct, the profit or the loss of the entire investment should not be equally divided between the investor and the administrator. For if this were the case, the investor would receive a profit for the half of his money that is an entrusted object without doing anything for it. The administrator is working for the sake of the half of the investment that was an entrusted article, because of the money that he was lent. Thus, this brings the two to avak ribit, the shade of interest.8וּלְפִי תַּקָּנָה זוֹ, אִי אֶפְשָׁר שֶׁיִּהְיֶה הַשָּׂכָר אוֹ הַהֶפְסֵד שֶׁל כָל הַמָּמוֹן לָאֶמְצָע בְּשָׁוֶה; שֶׁאִם אַתָּה אוֹמֵר כֵּן - נִמְצָא בַּעַל הַמָּעוֹת נוֹטֵל שָׂכָר חֲצִי מָעוֹתָיו שֶׁהֵן פִּקָּדוֹן, וְאֵינוֹ עוֹשֶׂה כְּלוּם, אֶלָא זֶה הַמִּתְעַסֵּק טוֹרֵחַ לוֹ בַּחֵצִי שֶׁל פִּקָּדוֹן מִפְּנֵי מָעוֹתָיו שֶׁהִלְוָהוּ, וְנִמְצְאוּ בָּאִין לִידֵי אֲבַק רִבִּית.

What should be done if they desire that the profit or the loss be equally shared? The investor should pay the administrator the wages9 to be paid to an unemployed laborer of the profession in which he was involved.10וְהֵיאַךְ יַעֲשׂוּ אִם רָצָה לִהְיוֹת הַשָּׂכָר אוֹ הַהֶפְסֵד לָאֶמְצָע בְּשָׁוֶה? יִתֵּן לַמִּתְעַסֵּק שְׂכָרוֹ בְּכָל יוֹם וָיוֹם מִיְּמֵי הַשֻּׁתָּפוּת, כְּפוֹעֵל בָּטֵל שֶׁל אוֹתָהּ מְלָאכָה שֶׁבָּטֵל מִמֶּנָּה.

If the administrator has any other11 occupation in which he is involved aside from caring for this investment, the investor does not have to pay him a daily wage. Instead, even if he paid him only one dinar12 for the entire time of the partnership, this is sufficient.13 If the partnership lost or gained, the loss or profit should be divided equally.וְאִם הָיָה לוֹ עֵסֶק אַחֵר כָּל שֶׁהוּא לְהִתְעַסֵּק בּוֹ עִם מָעוֹתָיו שֶׁל זֶה, אֵינוֹ צָרִיךְ לְהַעֲלוֹת לוֹ שָׂכָר כָּל יוֹם וָיוֹם, אֶלָא אַפִלּוּ הֶעֱלָה לוֹ דִּינָר אֶחָד בְּכָל יְמֵי הַשֻּׁתָּפוּת, דַּיּוֹ; וְאִם פָּחֲתוּ אוֹ הוֹתִירוּ, יִהְיֶה לָאֶמְצָע בְּשָׁוֶה.

Similarly, if the investor told the administrator: “In addition to the portion that is divided, you will receive one third or one tenth of the profit,”14 since he has another occupation it is permitted. If there is a loss, the loss is divided equally.15 If the administrator is a sharecropper working the fields of the investor, and he has another business,16 he is not required to pay him any other wage at all. For a sharecropper is obligated to take care of the interests of the owner of the field.וְכֵן אִם אָמַר לוֹ 'כָּל הָרֶוַח יִהְיֶה לְךָ', 'שְׁלִישׁוֹ' אוֹ 'עֲשִׂירִיתוֹ בִּשְׂכָרְךָ', הוֹאִיל וְיֵשׁ לוֹ עֵסֶק אַחֵר - הֲרֵי זֶה מֻתָּר; וְאִם הִפְסִידוּ, יַפְסִיד מֶחֱצָה. וְאִם הָיָה זֶה הַמִּתְעַסֵּק אֲרִיסוֹ, וְהָיָה לוֹ עֵסֶק אַחֵר - אֵינוֹ צָרִיךְ לְהַעֲלוֹת לוֹ שָׂכָר כְּלָל, שֶׁהָאָרִיס מְשֻׁעְבָּד הוּא לְבַעַל הַשָּׂדֶה.

3Our Sages also ordained that whenever a person gives a colleague money to use for a business and the investor did not desire to pay the administrator a wage, and they did not make any stipulation with regard to the division of the profits and the losses, the profit or the loss should be divided17 as follows:18 The wage of the administrator for handling the half of the investment that is considered an entrusted article is one third of the profit of that half, which is one sixth of the profit of the entire investment.גוְעוֹד תִּקְּנוּ חֲכָמִים: שֶׁכָּל הַנּוֹתֵן מָעוֹת לַחֲבֵרוֹ לְהִתְעַסֵּק בָּהֶן, וּפָחֲתוּ אוֹ הוֹתִירוּ, וְלֹא רָצָה לִתֵּן לוֹ שָׂכָר עֲמָלוֹ בְּכָל יוֹם, וְלֹא הִתְנוּ בֵּינֵיהֶן שֵׁם תְּנַאי - שֶׁיִּהְיֶה שְׂכַר הַמִּתְעַסֵּק בְּאוֹתוֹ הַחֵצִי שֶׁל פִּקָּדוֹן שְׁלִישׁ רֶוַח הַפִּקָּדוֹן, שֶׁהוּא שְׁתוּת רֶוַח כָּל הַמָּמוֹן.

Therefore, if a profit is made, the administrator should receive two thirds of the profit:19 half of the profit stemming from the half of the investment that was a loan, and the sixth of the profit that is his wages for handling the money considered as an entrusted article. Thus he receives two thirds of the profit. If there is a loss, the administrator should bear a third of the loss.20 This figure is reached as follows: He is liable for half the loss because of the half of the original investment that was a loan. He deserves a sixth of the loss as his wage for handling the half of the investment that was considered an entrusted article. Thus, his responsibility is one third of the loss.21 The investor must bear two thirds of the loss.לְפִיכָךְ אִם הִרְוִיחוּ, יִטֹּל הַמִּתְעַסֵּק שְׁנֵי שְׁלִישֵׁי הָרֶוַח: חֲצִי הָרֶוַח שֶׁל חֲצִי הַמָּעוֹת שֶׁהֵן מִלְוָה, וּשְׁתוּת הָרֶוַח בִּשְׂכַר שֶׁנִּתְעַסֵּק בַּפִּקָּדוֹן; נִמְצָא הַכֹּל שְׁנֵי שְׁלִישֵׁי הָרֶוַח. וְיִטֹּל בַּעַל הַמָּעוֹת שְׁלִישׁ הָרֶוַח. וְאִם פָּחֲתוּ, יַפְסִיד הַמִּתְעַסֵּק שְׁלִישׁ הַפְּחָת; שֶׁהֲרֵי הוּא חַיָּב בַּחֵצִי הַפְּחָת מִפְּנֵי שֶׁחֲצִי הַמָּעוֹת מִלְוָה, וְיֵשׁ לוֹ שְׁתוּת בִּשְׁכָרוֹ בְּאוֹתוֹ הַחֵצִי שֶׁל פִּקָּדוֹן, נִמְצָא שֶׁנִשְׁאָר עָלָיו מִן הַפְּחָת שְׁלִישׁוֹ. וּבַעַל הַמָּעוֹת יַפְסִיד שְׁנֵי שְׁלִישֵׁי הַפְּחָת.

4There is an opinion22 that makes an error, maintaining that when a person makes an investment without making any stipulations with regard to the division of profits and losses, they should be divided as follows: If there is a profit, the administrator should receive half, but if there is a loss, he must bear only a third of the loss. This is not the rule unless they made an explicit stipulation to this effect.23דיֵשׁ מִי שֶׁטּוֹעֶה וְאוֹמֵר: שֶׁהַנּוֹתֵן עֵסֶק סְתָם, אִם יִהְיֶה שָׁם שָׂכָר, יִטֹּל הַמִּתְעַסֵּק חֶצְיוֹ, וְאִם הָיָה שָׁם הֶפְסֵד, יַפְסִיד שְׁלִישׁ. וְאֵין הַדָּבָר כֵּן, אֶלָא אִם הִתְנוּ עַל דָּבָר זֶה בַּפֵּרוּשׁ.

Similarly if they stipulated that if there be a loss the administrator should suffer half the loss, and if there be a profit he should be granted two thirds of the profit, this is permitted.וְכֵן אִם הִתְנוּ שֶׁיַּפְסִיד הַמִּתְעַסֵּק מֶחֱצָה, וְאִם יִהְיֶה שָׁם שָׂכָר יִטֹּל שְׁנֵי שְׁלִישֵׁי הָרֶוַח - הֲרֵי זֶה מֻתָּר.

Similarly if they stipulated that if there be a profit, the administrator should receive one ninth and if there be a loss, he should lose one tenth,24 this stipulation is binding. The rationale is that they made a stipulation that the administrator should receive a greater share of the profit than his share of the loss, and he is granted this additional amount because of his work.25וְכֵן אִם הִתְנוּ שֶׁאִם יִהְיֶה שָׁם שָׂכָר, יִטֹּל הַמִּתְעַסֵּק תְּשִׁיעִיתוֹ, וְאִם יִהְיֶה שָׁם הֶפְסֵד - יַפְסִיד עֲשִׂירִיתוֹ, הוֹאִיל וְהִתְנוּ שֶׁיִּהְיֶה רֶוַח הַמִּתְעַסֵּק יָתֵר עַל הֶפְסֵדוֹ, תְּנָאוֹ קַיָּם; וְתוֹסֶפֶת זוֹ, הִיא כְּנֶגֶד עֲמָלוֹ.

My teachers26 ruled that such a conditional agreement is not effective unless the administrator has another occupation.27 If he does not have another occupation, the profit that the administrator can receive must be at least a sixth more than the loss he could suffer, as we have explained.28 They maintain that a prohibition is involved, and the stipulation cannot supersede it. This ruling does not appear correct to me.29וְרַבּוֹתַי הוֹרוּ שֶׁאֵין תְּנַאי זֶה מוֹעִיל, אֶלָא אִם כֵּן הָיָה לַמִּתְעַסֵּק עֵסֶק אַחֵר; אֲבָל אִם אֵין לוֹ עֵסֶק אַחֵר, צָרִיךְ שֶׁיִּהְיֶה שְׂכַר הַמִּתְעַסֵּק יָתֵר עַל הֶפְסֵדוֹ בִּשְׁתוּת, כְּמוֹ שֶׁבֵּאַרְנוּ, שֶׁזֶּה דָּבָר אָסוּר הוּא, וְאֵין הַתְּנַאי מֵעוֹלָם מוֹעִיל בּוֹ. וְלֹא יֵרָאֶה לִי זֶה.

5My teachers ruled that if a stipulation was made that the administrator should receive three fourths of the profit and the investor only one portion, only one fourth of the money will be considered an entrusted article and three fourths will be considered a loan.30 Therefore if there is a loss, the administrator should bear three fourths of the loss, minus a twelfth.31 The investor should suffer a fourth of the loss plus a twelfth - i.e., one third of the entire loss.ההוֹרוּ רַבּוֹתַי: שֶׁאִם הִתְנוּ שֶׁיִּטֹּל הַמִּתְעַסֵּק שְׁלוֹשָׁה חֲלָקִים מִן הַשָּׂכָר, וּבַעַל הַמָּעוֹת רְבִיעַ הַשָּׂכָר, נִמְצָא רְבִיעַ הַמָּעוֹת בִּלְבָד בְּתוֹרַת פִּקָּדוֹן, וּשְׁלוֹשָׁה רְבָעִים בְּתוֹרַת הַלְוָאָה. לְפִיכָךְ אִם הָיָה שָׁם הֶפְסֵד, יַפְסִיד הַמִּתְעַסֵּק שְׁלוֹשָׁה רְבִיעֵי הַהֶפְסֵד פָחוֹת שְׁלִישׁ הָרְבִיעַ, וְיַפְסִיד בַּעַל הַמָּעוֹת רְבִיעַ וּשְׁלִישׁ רְבִיעַ, שֶׁהוּא שְׁלִישׁ כָּל הַהֶפְסֵד.

What is implied? The investor gave the administrator 100 dinarim according to this stipulation, and they lost 24 dinarim, thus the investor should lose eight, and the administrator sixteen. These ratios should be maintained at all times. Whenever there is a profit, the investor should receive the share of the profit that was stipulated. If there is a loss, he should bear that same proportion of the loss, but should be given one third of the investor’s portion.כֵּיצַד? נָתַן לוֹ מֵאָה דִּינָרים עַל תְּנַאי זֶה, וְחָסְרוּ אַרְבָּעָה וְעֶשְׂרִים - בַּעַל הַמָּעוֹת מַפְסִיד שְׁמוֹנָה, וְהַמִּתְעַסֵּק מְשַׁלֵּם שִׁשָּׁה עָשָׂר; וְעַל דֶּרֶךְ זוֹ לְעוֹלָם. כָּל חֵלֶק שֶׁיֵּשׁ לְבַעַל הַמָּעוֹת בַּשָּׂכָר - אִם יֵשׁ שָׁם רֶוַח, נוֹטֵל כְּמוֹ שֶׁהִתְנוּ; וְאִם יֵשׁ שָׁם הֶפְסֵד, יַפְסִיד אוֹתוֹ הַחֵלֶק וְתוֹסֶפֶת שְׁלִישׁוֹ.

Thus, according to this approach, if it was agreed that the administrator would receive a fourth of the profits, he does not lose anything if there is a loss. For in place of the fourth of the loss that he is required to bear, he is due one third of the portion of the owner - i.e., one fourth. And so, one cancels out the other.נִמְצֵאתָ לָמֵד לְפִי מִדָּה זוֹ: שֶׁאִם הִתְנוּ שֶׁיִּטֹּל הַמִּתְעַסֵּק רְבִיעַ הַשָּׂכָר - אִם פָּחֲתוּ, לֹא יְשַׁלֵּם הַמִּתְעַסֵּק כְּלוּם; שֶׁהֲרֵי רְבִיעַ הַהֶפְסֵד שֶׁהוּא חַיָּב לְשַׁלֵּם מִפְּנֵי הַמִּלְוָה, יֵשׁ לוֹ כְּנֶגְדוֹ שְׁלִישׁ מַה שֶׁיִּטֹּל בַּעַל הַמָּעוֹת שֶׁהוּא רְבִיעַ; וְנִמְצָא זֶה כְּנֶגֶד זֶה.

These authorities maintain that similar principles apply if a stipulation was made regarding losses without mentioning profits. If a loss was incurred, the administrator must bear the loss as stipulated. If a profit was made, the administrator should receive the share of the loss that he was supposed to bear, plus one third of the portion to be received by the investor.וְכֵן אִם הִתְנוּ עַל הַפְּחָת, וְלֹא הִזְכִּירוּ הָרֶוַח: אִם פָּחֲתוּ, פּוֹחֵת הַמִּתְעַסֵּק כְּפִי מַה שֶׁהִתְנוּ; וְאִם הוֹסִיפוּ - נוֹטֵל הַמִּתְעַסֵּק כְּמוֹ אוֹתוֹ הַחֵלֶק שֶׁהָיָה מַפְסִיד, וְתוֹסֶפֶת שְׁלִישׁ מַה שֶׁנָּטַל בַּעַל הַמָּעוֹת.

What is implied? A stipulation was made that in the event of a loss, the administrator should bear one fourth of the loss. Thus if there is a loss, he must pay the investor one fourth. If there is a profit, the administrator receives half the profit.32 Although the rules that they issued are words of logic, if these principles are followed, it is possible for the administrator to cause a loss and yet receive profit.כֵּיצַד? הִתְנוּ שֶׁאִם יִהְיֶה שָׁם הֶפְסֵד, יִפְחֹת הַמִּתְעַסֵּק רְבִיעַ, וְהִפְחִיתוּ - מְשַׁלֵּם רְבִיעַ הַפְּחָת; וְאִם הוֹתִירוּ, נוֹטֵל מֶחֱצָה. וְאַף עַל פִּי שֶׁדְּבָרִים אֵלּוּ שֶׁהוֹרוּ דִּבְרֵי טַעַם הֵם, אִם תֵּלֵךְ עַל דֶּרֶךְ זוֹ, נִמְצָא הַמִּתְעַסֵּק אֶפְשָׁר שֶׁיִּפְחֹת, וְיִטֹּל שָׂכָר.

What is implied? It was stipulated that the administrator should receive one seventh of the profit. A loss was incurred. Thus, the administrator should receive as a wage one seventh in addition to this loss.כֵּיצַד? כְּגוֹן שֶׁהִתְנָה עִמּוֹ שֶׁיִּטֹּל הַמִּתְעַסֵּק אֶחָד מִשִּׁבְעָה בַּשָּׂכָר, וּפָחֲתוּ - נִמְצָא נוֹטֵל הַמִּתְעַסֵּק אֶחָד מִשִּׁבְעָה יָתֵר עַל זֶה הַהֶפְסֵד.

How is this illustrated? They suffered a loss of seven dinarim. The administrator will tell the investor: “I owe you one dinar according to our stipulation, but you owe me two dinarim, which is one third of the portion of the entrusted article.”33 Thus, the investor is obligated to pay him a dinar as wages for losing seven dinarim. And if he had lost fourteen dinarim, the investor would have to pay him two dinarim as wages.34כֵּיצַד? כְּגוֹן שֶׁפָּחֲתוּ שִׁבְעָה דִּינָרים - הֲרֵי הַמִּתְעַסֵּק אוֹמֵר לוֹ 'אֲנִי חַיָּב לְךָ דִּינָר אֶחָד כְּפִי הַתְּנַאי, וְאַתָּה חַיָּב לְשַׁלֵּם לִי שְׁנַיִם שֶׁהֵן שְׁלִישׁ חֵלֶק הַפִּקָּדוֹן', נִמְצָא בַּעַל הַמָּעוֹת חַיָּב לִתֵּן לוֹ דִּינָר בִּשְׂכַר שֶׁהִפְסִיד שִׁבְעָה. וְאִלּוּ הִפְסִיד אַרְבָּעָה עָשָׂר, הָיָה חַיָּב בַּעַל הַמָּעוֹת לִתֵּן לוֹ שְׁנֵי דִּינָרִין.

This is an unfathomable matter, which cannot be accepted by logic. To me, it appears like a dream. Instead, the proper approach and the true law appears to me as follows: If there is a loss, the administrator should bear as a loss two thirds of the percentage he would receive if there were a profit.35וְזֶה תֵּמַהּ גָּדוֹל, וְדָבָר שֶׁאֵין הַדַּעַת סוֹבֶלֶת אוֹתוֹ; וְאֵין זֶה אֶצְלִי אֶלָא כְּמוֹ דִּבְרֵי הַחַלוֹם. אֲבָל הַדֶּרֶךְ וְהַדִּין הָאֱמֶת שֶׁיֵּרָאֶה לִי: שֶׁכָּל שֶׁיַּרְוִיחַ הַמִּתְעַסֵּק - אִם יִהְיֶה שָׁם הֶפְסֵד, יַפְסִיד שְׁנֵי שְׁלִישֵׁי הַחֵלֶק שֶׁהָיָה מַרְוִיחַ.

Similarly, if they made a stipulation concerning a loss and they profited, the administrator should receive the portion he would lose in the event of a loss, plus a third of the share of his colleague.36 Thus, according to this approach, if a stipulation was made that the administrator should receive one fourth of the profit and he incurred a loss, he should pay one sixth of the loss.37 And if a stipulation was made that he should lose a fourth and he profited, he should receive a half.38וְכֵן אִם הִתְנוּ עַל הַהֶפְסֵד, וְהִרְוִיחוּ - יִטֹּל כְּמוֹ אוֹתוֹ הַחֵלֶק שֶׁהָיָה מַפְסִיד, וְתוֹסֶפֶת שְׁלִישׁ חֵלֶק חֲבֵרוֹ. נִמְצֵאתָ אוֹמֵר לְפִי מִדָּה זוֹ: שֶׁאִם הִתְנוּ שֶׁיִּטֹּל הַמִּתְעַסֵּק רְבִיעַ הַשָּׂכָר, וְהִפְסִיד - הֲרֵי זֶה מְשַׁלֵּם שְׁתוּת. וְאִם הִתְנוּ שֶׁיַּפְסִיד רְבִיעַ, וְהִרְוִיחַ - נוֹטֵל מֶחֱצָה.

Following this approach will not lead to unthinkable results, and a just ruling will emerge.39וְעַל דֶּרֶךְ זוֹ לֹא תִמְצָא תֵּמַהּ, וְיֵצֵא הַדִּין בְּקַו הַצֶּדֶק.

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Sheluchin veShuttafin - Chapter 5

Sheluchin veShuttafin - Chapter 7

Footnotes

Who agreed to give the second person a share in the profits because of his professional or business skills.

In contrast to the investment agreement to be discussed, neither partner must be paid a wage. Since they both invest money and work, there is no question of interest involved.

The point of the halachic construct discussed in this chapter - a heter iska - is to enable a person to profit from a business investment with a fellow Jew without transgressing the prohibition against taking interest. For the investor is giving money and receiving more money in return. To prevent that from being considered interest - or even “the shade of interest” - our Sages developed the convention that the Rambam describes.

The Kessef Mishneh notes that in the following halachah, the Rambam adds the phrase “and they made no stipulations between themselves.” Implied is that our Sages ordained these guidelines only when the partners did not come to an agreement beforehand. If they established a partnership arrangement regarding the division of the profits and the losses, it should be followed as long as there is no question of interest involved.

As is the case with regard to any loan. If a profit is made, the profit from this half of the investment may be kept by the administrator - and if a loss is suffered, the administrator must pay for this portion of the loss.

I.e., the administrator is not held liable.

I.e., his liabilities are those of an unpaid watchman. The Ra’avad objects to this ruling, asking: Why – since he receives a wage for his services – is he not considered a paid watchman, who is liable under such circumstances?
In his Kessef Mishneh, Rav Yosef Karo resolves the question posed by the Ra’avad, explaining that the administrator is not receiving a wage for guarding the object, but for doing business with the money of the partnership. Nevertheless, in his Shulchan Aruch (Yoreh De’ah 177:5), he quotes the Ra’avad’s view.

A Rabbinic prohibition enacted as a safeguard for the Scriptural prohibition. According to Scriptural Law, interest is prohibited only when at the time of the loan, a specific amount or percentage was stipulated to be paid as interest. Our Rabbis, however, extended the extent of this prohibition to include other situations where a person received profit. See Hilchot Malveh V’Loveh, Chapter 6.

Since he is being paid a wage for his services, he does not appear to be taking care of the portion entrusted to him in return for the loan of the second portion.

10.

In his Commentary on the Mishnah (Bechorot 4:6), the Rambam explains the meaning of this term:
I have heard many interpretations, but none of them is satisfactory... This refers to a person who is capable and expert in his profession and thus worthy of earning a significant amount. [He] is not paid the sum given to such a worker, but rather that paid to an ordinary worker from this profession... This is the intent of the phrase “as a worker of the trade in which he is employed.’’
“As an unemployed worker of the trade in which he is employed” implies [a further reduction], dependent on the amount of toil or rest involved in performing that profession. For example, there are certain tasks that require strenuous labor - e.g., iron workers or hewers of marble. If a worker in such a profession were given the chance of performing this labor or resting, he would prefer to rest, even though he would receive much less.
Thus, according to the Rambam’s conception, the administrator must make two waivers. He must forfeit the additional money that he would earn if he is more skillful than the ordinary person in his profession. He must also consider it as if he is resting and give up the amount of his wage that he would sacrifice in order to rest.
The Kessef Mishneh quotes Rashi (Bava Metzia 68a), who interprets this as referring to the wage at which a professional of his degree of expertise would be willing to accept work that is easier and not as demanding as the profession in which he is ordinarily employed. He also cites the view of Tosafot and the Tur (Yoreh De’ah 177), which interprets the term as referring to the wage that would be demanded by a worker who is unemployed and would thus be willing to accept a lower wage than usual.
The Shulchan Aruch (Yoreh De’ah) quotes the Rambam’s wording without explaining the term. The Siftei Cohen 177:5 and the Turei Zahav 177:3 cite various different views.

11.

The wording used by the Rambam implies even an occupation that is minimal in time and profit.

12.

I.e., a minor sum.

13.

Since he is not solely involved with caring for the investment, we need not consider the wage he receives for his efforts comparable to what a person would receive for a day’s work.

14.

This extra amount is considered in place of his wage.

15.

If, however, he does not have another occupation, he must be required to bear a lesser share of the loss, as stated in the following halachah.

16.

The Kessef Mishneh interprets this as meaning another investment as the same type he is administering for the investor – in which instance, while he is caring for his own investment, he will also be caring for that of the investor. If, however, he has another profession that is not connected to the investment, it is of no consequence, and the investor must pay him a wage.

17.

The Turei Zahav (Yoreh De’ah 177:7) explains that this refers to an instance when the partners ask how to make the division in the proper manner. If, however, the division was already made and then the administrator asks for his wage, he need not be paid anything more. Since the question does not involve interest as forbidden by Scriptural Law, the court is not empowered to act on the administrator’s behalf.

18.

I.e., it is preferable for the investor and the administrator to come to an agreement between themselves with regard to the division of the profits and losses, that will al o acknowledge a portion due the administrator as his wage. If, however, this has not been done, our Sages set up these ground-rules so that there would be no que lion of interest involved.

19.

One half plus one sixth equals two thirds.

20.

The Rambam’s decision is based on the principle that the administrator must be given an advantage over the investor, both in the event of a profit and in the event of a loss.
The Tur and the Ra’avad differ with this ruling and maintain that the administrator must bear half the loss. They maintain that it is sufficient for him to receive only one advantage over the investor. (See also the following halachah.) The Shulchan Aruch (Yoreh De’ah 177:4) quotes the Rambam’s ruling. The Siftei Cohen 177:14, however, questions his decision, maintaining that the majority of the authorities follow the Ra’avad and the Tur.

21.

One half minus one sixth equals one third.

22.

This opinion can be found in the works of the Baal Halachot Gedolot, one of the early halachic texts published after the Talmud. It parallels the opinion of the Ra’avad mentioned in the previous halachah: that the administrator may be given only one advantage over the investor.
Significantly, from the Rambam’s Commentary on the Mishnah (Bava Metzia 5:4), it appears that the Rambam originally subscribed to this opinion himself.

23.

If, however, a stipulation to this effect is made it is binding. As long as the administrator is given some advantage over the investor, there is no question of interest. The Rambam, however, maintains that unless a stipulation is made, the profits and losses should be divided according to the principles stated in the previous halachah.

24.

This is obviously speaking about a situation where the work performed by the investor is not a major factor, and the profit comes primarily from the initial investment.

25.

Since he is being granted an advantage for performing the work, the work he performs on behalf of the investment is not considered interest given in return for the portion he receives as a loan.

26.

This refers to Rabbenu Yitzchak Alfasi and the Ri Migash.

27.

Unlike the Rambam, who makes a distinction between whether or not a stipulation was made, these authorities maintain that what is of fundamental importance is whether or not the administrator has another occupation. If he has another occupation, as long as he is given a small advantage over the investor, it is acceptable. If he does not have another occupation, he must be given a sizable recompense for his work.

28.

In the previous halachah.

29.

The Rambam does not accept the distinction mentioned above, maintaining that as long as the administrator is granted a certain benefit, there is no question of interest, even according to Rabbinic Law. Therefore, if an explicit stipulation is made between the partners, that stipulation is allowed to stand. Nevertheless, if they do not make a stipulation, the administrator is given a more favorable settlement, as stated in Halachah 3.

30.

I.e., a stipulation was made only in the case of profit, and not in the event of a loss.

31.

This twelfth - one third of one fourth - is granted to the administrator as his wage, so that there is no question of interest involved. The Rambam arrives at this figure because, according to the principles mentioned in Halachah 3, the administrator should be granted one third of the share of the investor as his wage.

32.

The fourth he was supposed to receive, plus a second fourth (one third of the three fourths received by the investor).

33.

The investor is given six sevenths, and the administrator one third of that, two sevenths, as his wage. Thus, when there is a loss of seven dinarim, his wage should be two dinarim. He must then pay one dinar as his share in the loss, leaving him with a gain of one dinar.

34.

Since there is a loss of fourteen, the administrator’s share of the loss is two dinarim, and the investor’s share of the loss is twelve. The administrator should be give one third of twelve, four, as wages. And four minus two is two.

35.

By associating the share of the loss that the administrator must bear with the portion that he himself would receive - rather than the portion that the investor would receive - the Rambam ensures that in the event of a loss, the administrator will always be forced to bear a share of the loss, although that share will be smaller than the share of the profit he would receive (Kessef Mishneh).

36.

In this regard, he accepts the approach suggested by his teachers.

37.

One fourth is three twelfths. Two thirds of three twelfths is one sixth.

38.

His fourth plus one third of the three fourths to be received by the investor.

39.

The approach of the Rambam’s teachers is accepted by the Shulchan Aruch (Yoreh De’ah 177:27-28).