Shabbat Parashat Ki Tavo | 5769

Hemdat HaDaf HaYomi: Dissolving a Partnership

This week in the Daf Hayomi, the Gemara deals with the issue of dividing something owned by partners. The Mishna (11a) states that: if something can be divided and still be used for its original function, then one of the partners can demand that it be divided. However, if following the division it will not be able to be used for the original function, then one partner cannot force its division.

What can be done in such a situation? The Gemara states that in such a situation a partner can demand "gud or agud"- either buy my share or sell me your share. The principle is that, a person cannot be forced to remain in a partnership forever, and therefore, when something cannot be divided, the partner can demand to absolve the partnership by giving the second partner the choice to either sell his share to him, or to buy the first partner’s share.

The Rishonim disagree whether in every partnership "gud or agud" can be demanded. According to Rabeinu Yona (13b d"h Ala Beyadeinu) "gud or agud" can only be demanded in a partnership that was created unwittingly. For example, if two people inherited something or received something as a present, then one of them can claim that he does not want to be a partner with the other and demand "gud or agud." However, if two people bought something together, since they bought it intending to be partners, one cannot later demand "gud or agud."

However, the opinion of the Rambam (Shechenim 1, 3) is that in any type of partnership, even if people bought or rented something together, a partner can demand "gud or agud." The Rashba (responsa volume 1, 913) explains that the reasoning of the Rambam is that a person can claim that, although at first he thought that they would be able to be partners, now he is no longer able, and he therefore can demand that the other partner either buy his share from him, or that he will sell him the other share.

From the ruling of the Shulchan Aruch (171, 9) it appears that he follows the opinion of the Rambam, that in any type of partnership a partner can demand "gud or agud."

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