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Ruling:As often happens, the sides apparently expected profits and did not give enough thought to what would happen in the case of loss. Although pl’s son claims that his addition to the draft contract contains a contingency for loss, which obligates def, def denies having seen the unsigned addition, and pl did not prove that he did.
The Tur (Choshen Mishpat 176) rules that if two partners invested different amounts without stipulation, they still split profits equally, not as a proportion of total investment, and they also split losses equally. He cites the Ramah, who says that the equal share of losses refers only to losses on money already invested; it does not require the smaller investor to pay from his personal resources to even out the two partners’ losses. The Shulchan Aruch (CM 176:6) accepts the Ramah’s opinion.
The Rambam (Shluchin V’shutfin 10:5), in discussing a case of an unequal partnership with near total loss of the investment, says that the larger investor cannot swear about the details of the investment and force the smaller investor to reimburse him. The implication is that if the larger investor could prove his claims, he could demand compensation from his partner’s personal funds. The Shulchan Aruch (CM 93:13) cites the Rambam’s opinion, causing the commentaries to wonder how he could cite apparently mutually exclusive opinions as if they are both accepted. The Gra (CM 176:32) and the Taz say the opinions cannot be reconciled, and the Taz says that the Shulchan Aruch agrees with the Ramah and brought the Rambam regarding the laws of oath, but not to make additional inferences. The Bach says there is no contradiction, as the Rambam was talking about cases where the money was lost in normal commercial activity, whereas the Ramah rejects reimbursement specifically regarding loss from external causes. The Netivot Hamishpat (176:11) says that the Rambam requires reimbursement only from past profits that were given out to the partners.
[Next time we will apply the opinions to the present case.]
P'ninat Mishpat (832)
Various Rabbis
253 - Late Pay Without Fringe Benefit
254 - Responsibility for a Failed Joint Investment – part I
255 - Responsibility for a Failed Joint Investment – part II
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P'ninat Mishpat P'ninat Mishpat: A Contractor’s Leaving the Job in the Middle – part II
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based on ruling 84013 of the Eretz Hemdah-Gazit Rabbinical Courts
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