Shabbat Sukkot | 5768
A Partner Who Does Less Work Than He Should
The Rama (Choshen Mishpat 176:19) writes: “[Regarding] a partner who became sick or was otherwise prevented from being involved in the partnership, it is not right that the other [partner] should earn and have to give to him, even if they made a kinyan at the time of the [formation of the] partnership [that they would share in that case]. However, if he was in a different city as an agent of the partnership and was prevented from returning, he has a part with them, and if there is a minhag among partners, they should do according to their minhag.”
This halacha is both understandable and difficult to understand and the matter may depend on the circumstances. The logic for withholding profits from the partner who did not work is not punitive, for it is referring to one who did not work due to extenuating circumstances. Rather it is based on the concept that one who does not work does not deserve to be paid for his inactivity. The Lechem Rav (112) explains that partners have somewhat of an employer-employee relationship, except that here each is both an employee and an employer. Indeed, an employee who is sick and therefore unable to work does not, under normal circumstances, get paid for the time he missed.
On the other hand, the matter is not simple, as partners are not paid by the job but are paid equally even if works out that one was more productive than another. Perhaps for this reason, the Netivot Hamishpat (ad loc.:37) says that the Rama was talking about a situation that prompted the working partner to approach beit din and request that the partnership be disbanded in the interim. During that time, the relationship no longer entitled the absent partner profits, which could be restored only when he becomes able to take part in the operations. If beit din was not approached, then profits would be shared, except that the idle partner would have to pay the working one for his time and effort like a sharecropper.
The problem with this explanation is that the language of the Tashbetz (I, 35), who is the Rama’s source, does not indicate a differentiation between a case where beit din is approached and one where it is not. The Lechem Rav (ibid.) makes a different, compelling distinction. Some partnerships revolve around joint work and others around joint ownership of capital. The Tashbetz and Rama refer to cases where the partnership revolves around work, in which case we say that if one party did not work, he has no claim to profits. However, in a case where each of the two made significant monetary investments, the basis of the divided profits is the gains that the invested capital sees. In such a case, the basic relationship remains intact even when one is inactive, and it is sufficient to compensate the working partner for his added work like a sharecropper.
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