Translation:Shulchan Aruch/Choshen Mishpat/171

Paragraph 1- If one individual purchased half a field from another or if two individuals purchased a field from one seller or if they inherited it or received it as a gift, or if they acquired an ownerless field, and one of the partners wants to divide the field and have exclusive rights to his share and the property has the necessary amount to have the legal status of a field that should be divided, we would compel the other partners and they would divide the field with him. If the field does not have the status of a field that should be divided, neither one of them can force the other to divide. The same rule applies to movable items. If the field had the status of one intended to be divided but they agreed with a kinyan not to divide, they cannot retract their agreement. If Reuven and Shimon had seats in the synagogue next to each other and Reuven wants to make a partition between them and build the partition in his own area, and Shimon wants to stop him from doing so by claiming that if a partition is made his area will be cramped, Reuven is in the right. Similarly, if many people sit on a bench in the synagogue and the individual who sits at the head wants to add another seat next to his seat, and the individual sitting next to him wants to object by saying that now he is second from the head but if they add he will be third from the head, the objector is in the right and he is able to object. See above in Siman 162 with respect to the rules of seats in synagogue.

Paragraph 2- When is this true? Where neither of the partners recognize their share of the partnership and each one uses the entire field. If one of the partners can recognize his share, however, we would force each partner to make a separation between his share and his partner’s, even if it is one that does not have the status of one intended to be divided, so that neither partner can damage the other by sight.

Paragraph 3- What is a field that has the status of one intended to be divided? Any situation where if the field were divided the partner receiving the smallest portion would receive a share large enough that his entire share would be referred to by his name. If he would not receive a share large enough that his entire share would be referred to by his name, however, the field would not have the status of one intended to be divided. How so? Any courtyard that is not four amos by four amos exclusive of the four amos of the entrance, is not considered a courtyard. Any field that is not large enough to plant nine kavin is not considered a field. Any garden that is not large enough to plant half a kav is not considered a garden. Any vineyard that is not large enough to plant three kavin is not considered a vineyard. Thus, we would not divide a courtyard unless each partner were to receive four amos. We would not divide a field unless each partner received a portion large enough to plant nine kavin. We would not divide a garden unless each partner received a portion large enough to plant half a kav. We would not plant a vineyard unless each partner were to receive a portion large enough to plant three kavin. When is this true? In Israel or somewhere similar. In Babylonia or somewhere similar, however, we would not divide the field unless each partner received a portion large enough for a day’s worth of plowing, we would not divide a vineyard unless each partner would receive 36 trees which is the amount an individual works in one day and we would not divide a field that is watered with a vessel unless each partner received a share large enough to have a worker fill a day’s worth of water for. If the field had the status of one intended to be divided and one of the partners sold his share to two individuals or two of his children inherited the field and now neither has a large enough share for it to have the status of a field intended to be divided, they cannot hold up the division because they are no stronger than the original individual they received power from. If there were four partners and two of them had the required amount but the other two did not, the two that have the required amount would receive their share and the other two would remain partners. Even if one of the partners that did not have the required amount said to give him his share as well and leave the fourth partner without the required amount, and he said it in order to stop the division, we would not listen to him. If three individuals were partners in a house and two of them had the requirement amount but the third did not, and one of the two partners that did have the required amount obtained the portion of the partner that did not have the requirement amount, he would not be able to stop the division, notwithstanding the fact that the seller could have stopped the division.

Paragraph 4- There are those who say that if a partner has property next to the partnership property that is able to be joined together, the other party may compel him to split.

Paragraph 5- There are those who say that if partners are coming to divide a house or courtyard and each partner will not end up with his own path, there is no requirement to divide, even if has the status of property intended to be divided, because we don’t want to have one party have to pass through the other’s portion. There are those who say that it is also necessary that each partner can use in his share what he was able to use in the entire property. For example, if there was a bathhouse or bathroom, there must also be a bathhouse or bathroom in his portion. Similarly, if they want to divide a house that has the status of one intended to be divided and a division would cause the house to suffer a loss and depreciate, one party cannot force the other to divide if it appears to the court that the loss will be more than 1/5. Similarly, if there is a property that does not have the status of one intended to be divided, but there is a wide wall that had they made narrower would make the property one intended to be divided and it appears to the court that making it narrower would not damage the construction, we would force them to divide. If a house has the status of one intended to be divided if were divided by its width, but does not have the status if it were divided by its length, we would divide it by its width. If one side of the house has certain constructions and the other does not or if one was the public domain and the other was an alley, we would increase the price until the two sides were equal. This is all to avoid breaking down the constructions. If they parties agree, however, they can do whatever they want.

Paragraph 6- If one of the partners in a situation where the property is not intended to be divided or if it is a property that is impossible to divide, such as a maidservant or vessel, says to the other, either sell me your portion for such and such amount or buy my portion for that amount, he is in the right and we would force his counterparty to sell to him or buy from him. He would be required to buy or sell even where the party said to give him an amount that was lot more than the property is worth. If the plaintiff does not want to buy or cannot come up with the money to buy, he cannot force the other to buy from him, even at a cheap price, because his partner can say I only want to sell and not buy. Thus, if there were two brothers and one was poor and the other was wealthy and their father left them a bathhouse or olive-press that the father would rent out, the rental wages would belong to both of them so long as they want to retain the partnership. The wealthy brother cannot say to the other to just rent out his half because items like this are not rent out in halves, unlike a dining room. If the father used the property for himself, one brother cannot force the other to rent it out. Rather, they would use the property the same way their father did. The wealthy brother can tell the poor brother to take his olives and use them in olive press, or purchase servants and come and bathe in the bathhouse. The poor brother cannot force the wealthy brother to purchase his share unless he were to say purchase my share or sell to me and I will borrow in order to purchase or sell my share to others to purchase, in which case the poor brother would be in the right. There are those who say one does not have the right to say “you set a price or I will” if he does not have the money and would have to sell to obtain the money. A person does not have the right to say to his partner “you set a price or I will” for less than the property’s worth because otherwise the wealthy person will force the poor person to sell for less than its worth.

Paragraph 7- If each partner said they don’t want to buy but want to sell, they would sell the property to others.

Paragraph 8- If each partner said he will not sell and they each want to purchase the other’s portion or if one of them does not want to buy the other’s portion or sell his portion but to remain partners and the property is meant to be rented, they would rent it out and divide the income. One partner can say to the other “either you rent it for such amount or I will rent it for such amount” just like the rules of “you set a price or I will.” Any time the parties are able to use the equivalent of “you set a price or I will” that is a better approach than all these divisions. If the property is not one that is meant to be rented out and it is a courtyard, store or house where it is impossible for them to live together, they will live in it on a year by year basis because it is impossible for them to live there together due to the issue of damage-by-sight, the property does not have the status of one intended to be divided and a person does not have the practice to move from a courtyard every 30 days, but does once a year. There are those who say that in the case of a courtyard they must use it together because the courtyard is tied to each one of their individual homes. For this reason we do not use the concept of “you set a price or I will” in the case of a courtyard. This is only with respect to the four amos needed for each entrance or for the path needed to enter and exit. With respect to the rest of the courtyard we would say “you set a price or I will.” If one partner has 2/3 and the other owns 1/3, they would cast two lotteries; one of one year and one of two years. The partner that owns 2/3 would use the property for two consecutive years. If the property was a bathhouse, they can both always enter. The same applies to anything that can be used together and is not intended to be rented out, such as a Torah scroll or a couch. One partner cannot say you use it one day and I will use it the next because the other can say to him he wants to use it every day. If it is something they cannot use together, they would divide it by days. If they did not divide and one of the partners used it for many years, the other partner cannot say he also wants to use it for that amount of time, because so long as they have not divided the property, each one is using his own share.

Paragraph 9- If an individual rented from another a portion of a field or a courtyard that does not have the status of one intended to be divided, or if two individuals rented one area as partners, each one can compel the other say “either rent my portion from me or rent me your portion.” If the property has the status of one intended to be divided, they would divide. There are those who disagree and hold that division is not applicable in the case of something intended to be rented for a specific time. See later 316:2.

Paragraph 10- If the property does not have the status of one intended to be divided, and one partner suggests making the field into two portions, one with the required amount and one with less than the required amount, and he says he will take the smaller portion and his partner will take the larger portion and pay him for the difference, he has no power to compel such a division. Even if he says the partner could have the larger portion as a gift, the partner can say he does not want to accept a gift. There are those who disagree with this. If he says the partner should take the larger one at cost and he will take the smaller one or he will take the larger one at cost and he can take the smaller one and if you don’t want the smaller one I will purchase the whole thing, however, we would listen to him, notwithstanding the fact that he did not offer his partner the option of taking the whole property.

Paragraph 11- If a courtyard is seven amos and Reuven owns four while Shimon owns three and Shimon does not want to divide, Reuven has the right to say he will take his portion other than one amah, which he will remain a partner on with Shimon, and can then say “either you set a price or I will.”

Paragraph 12- The principle of “either you set a price or I will” applies even where the property is one where the entire amount is not fit for one person. There are those who disagree with this.

Paragraph 13- For items whose use is not the same, such as two maidservants where one knows how to bake and cook and the other knows how to spin, or two vessels with different uses, and each party needs both of them, neither one can say to the other you take this one and I’ll take the other one or vice versa, even if their value is the same, because each one needs both. Similarly, if they had a field and vineyard and neither had the status of intended to be divided, one cannot say you take the field and I will take the vineyard or vice versa, even if their values are the same. Even if he were to say “either you set the price or I will” on both of them together we would not listen to him. Rather, if he wants he can say on one of them “either you set the price or I will” and they will remain partners on the other or say “either you set the price or I will” on each one of them, but one after the other. If both of the items had the same use and value and neither had the status of being intended to be divided, one of them can certainly tell the other “either you set the price or I will,” meaning they would divide one against the other and one will take one and the second partner will take the other. The same applies if their values are not the same. There is no distinction as to whether the first partner pays the difference to the second or if he tells him to take one without paying money and he will take the second or vice versa. There are those who disagree with this.

Paragraph 14- If two brothers inherited two large houses which each have the required size to have the status of ones intended to be divided, and one of the brothers says to divide each house by itself and the other says to each take a separate house, we would listen to the one that wants each one to receive a separate house. All the more so in a case where the houses to do not have the required size to be divided would they divide separate houses. This that we say we divide houses opposite houses is only where their uses are the same. There are those who say, however, that most houses do not have the status of ones intended to be divided because all houses and living spaces are different. We would not divide a house against an upper story or a room that has a different use than the house. All the more so in a case where he would need to destroy windows or entrances and rebuild them and incur expenses would they not divide one house. It seems from the Rosh in his responsa, however, that we would divide a house opposite a store or wine cellar. It seems to me that the same would be true opposite a room or upper story because they are considered as having the same use. Even when it comes to incurring expenses to build, if it appears to the court that there will not be significant damage, they would divide, as was explained above in seif 5 with respect to the house suffering a loss. With respect to the principle of “you set a price or I will,” however, there is no distinction between a house, a seat in the synagogue or other matters and one can say “you set a price or I will.” There are those who say that the principle of “you set a price or I will” only applies where the title to the actual item belongs to them. With respect to a collateral or something similar where one will collect money in the future, however, we would not say “you set a price or I will” and they will just divide the money. It seems to me that if they use the collateral it has the status of a rental where it was explained above in seif 9 that there are those who disagree.

Paragraph 15- There are those who say that we only apply the principle of “you set the price or I will” where the money will be given immediately. If a party says “set a price and give me 30 days to pay,” however, we would not listen to him because he can say he is pleasant to his partner while his partner is tough with him.

Paragraph 16- In a case where the property does not have the status of one intended to be divided and there are adult and minor orphans and the adults want to divide, there are those who say that the court would appoint a guardian for the minors and litigate the principle of “you set the price or I will.” There are others who say that the principle of “you set the price or I will” does not apply to orphans because guardians do not have the authority to sell the orphans’ portion.

Paragraph 17- The principle of “you set the price or I will” was not said with respect to the four-amos area need for unloading a load and was not said for the area needed to leave and enter, even if the houses are open on one side to the public domain, because people do not generally unload their items in front of everyone.