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Bava Basra, 13

1) THE SOURCE FOR THE RULE OF "GUD O AGUD"

OPINIONS: Rav Yehudah and Rav Nachman argue whether there is a law of "Gud O Agud." Rav Yehudah maintains that there *is* such a law, and the Halachah follows his view. Therefore, when two partners (Reuven and Shimon) own an inseparable object, Reuven may force Shimon to either sell his portion to Reuven, or to buy Reuven's portion.

What is the source for this law of "Gud O Agud," and what is its logical basis?

There are two approaches in the Rishonim.

(a) The ROSH (Teshuvos, 98:3) maintains that "Gud O Agud" is a Takanas Chachamim, based on the reasoning of "Zeh Neheneh v'Zeh Lo Chaser, Kofin Al Midas Sedom" -- in a case where one person (Reuven) would gain and the other person (Shimon) would not lose anything, we force Shimon to allow Reuven to benefit. Since the area or the object is not fit to be used by both partners, and thus neither of them are benefiting from it in its present state, the Chachamim enacted that one partner may force the either to sell his own share, or to buy the other partner's share. This also seems to be the view of the RASHBA (Teshuvos, #906), and RABEINU YONAH (cited by the Shitah Mekubetzes on 13b).

(b) The MABIT in KIRYAS SEFER (beginning of Hilchos Shechenim) maintains that the law of "Gud O Agud" is mid'Oraisa. The laws of partnerships -- such as forcing the other partner to divide the property when it is of sufficient size to divide -- is mid'Oraisa, and so is the law that when the property is not large enough to divide, one partner may force the other to buy or sell. Likewise, mid'Oraisa, when "Gud O Agud" does not apply, one partner can force the other to rent the property out to others and to share the profits.

What, though, is the source for this Din d'Oraisa? Where is the law of division of jointly-owned property written in the Torah?

The CHAZON ISH (Bava Basra 8:1), in explaining the law of "Gud O Agud," suggests that the Torah commands the Chachamim to establish laws based on the "Chochmas ha'Torah" with which the Chachamim are endowed. This is based on the verse, "v'Asisa ha'Yashar veha'Tov" (Devarim 6:18). Hence, the law of "Gud O Agud" was established by the Chachamim who, in their wisdom, discerned that this is the most ideal way to divide property that was inherited by or given to partners. Once they established the law of "Gud O Agud," it has the force of a Din Torah.

The BI'URIM V'HE'OROS adds that the concept that the Torah gives the Chachamim the prerogative to establish monetary law (which will then have the power of Torah law) is based on the words of the RAMBAN on the verse, " v'Asisa ha'Yashar veha'Tov." The Ramban writes that this verse "is a Mitzvah to act beyond what the law requires, *and, likewise, to make enactments for the welfare of the city and the country*." This requirement to "make enactments" is not a requirement on the individual, as the first requirement of acting "beyond what the law requires" is, but rather it is a requirement on the Beis Din and the Chachamim. We see from this verse that the Torah commands the Chachamim -- and gives them the power -- to make enactments in the realm of monetary law for the welfare of society.

(The Bi'urim v'He'oros adds that based on the Chazon Ish's explanation, it could be that the words of the Rosh do not contradict the Mabit. When the Rosh says that "Gud O Agud" is a Takanas Chachamim, he agrees that the Torah gave the Chachamim the authority to enact such laws. When the Mabit says that it is a Din d'Oraisa, he agrees that it was the Chachamim who enacted the law, but that it has the force of a Din d'Oraisa, as explained above.)

13b

QUESTION: The Beraisa quotes a Machlokes between the Rabanan and Raban Shimon ben Gamliel in a case where two partners own an area or an object that is not large enough to be divided between them, such as a Chatzer with an area of less than eight Amos. One partner offers to let the other have the minimum amount that is necessary for dividing a Chatzer (four Amos), while he himself will take the remainder, even though it is less than the minimum amount of a Chatzer. The Rabanan maintain that the other partner must accept those terms (for they are beneficial to him) and let the Chatzer be divided. Raban Shimon ben Gamliel says that the other partner may refuse to accept the terms of the division. The Gemara explains that the reason why Raban Shimon ben Gamliel says that the partner may refuse to divide the Chatzer even though he, apparently, is benefiting from it, is because that partner can claim that he does not want to receive any gift because the verse says, "One who despises gifts will live" (Mishlei 15:27).

If there is a verse that supports Raban Shimon ben Gamliel's opinion, then why do the Rabanan argue? Why can the other partner claim that he does not want to accept the gift because he wants to live, and "one who despises gifts will live?"

ANSWER: The RASHBA and RABEINU YONAH as cited by the Shitah Mekubetzes answer that when the first partner offers to give a larger part of the Chatzer to the second partner and receive, himself, a smaller part, his intention is not to give a gift. Rather, his intention is to benefit himself, for he would prefer to have a smaller Chatzer than to remain in partnership with his neighbor. When -- by giving the gift -- the giver himself benefits, the verse, "One who despises gifts will live," does not apply. (This is also the answer of the S'MA (CM 171:24) as cited by the CHASAM SOFER here.)

HALACHAH: The Rishonim argue whether the Halachah follows the view of the Rabanan or whether the Halachah follows the view of Raban Shimon ben Gamliel.

(a) The RIF and the RAMBAM (Hilchos Shechenim 1:5) rule like Raban Shimon ben Gamliel. The Rif writes that Raban Shimon ben Gamliel's "reasoning is [more] logical."

(b) RABEINU CHANANEL (citing one opinion) rules like the Rabanan, as does RABEINU YONAH, the RASHBA, and the ROSH rule. Rabeinu Yonah counters the Rif's assertion that Raban Shimon ben Gamliel's reasoning is more logical by explaining that the reasoning of "one who despises gifts will live" applies only when the giver does not benefit from giving the gift. Here, where the giver benefits, there is nothing wrong with accepting a gift, and therefore we force the second partner to accept the terms of the division.

QUESTION: The Beraisa quotes a Machlokes between the Rabanan and Raban Shimon ben Gamliel in a case where two partners own an area or an object that is not large enough to be divided between them, such as a Chatzer with an area of less than eight Amos (see previous Insight). One partner offers to let the other have the minimum amount that is necessary for dividing a Chatzer (four Amos), while he himself will take the remainder, even though it is less than the minimum amount of a Chatzer. The Rabanan maintain that the other partner must accept those terms (for they are beneficial to him) and let the Chatzer be divided. Raban Shimon ben Gamliel says that the other partner may refuse to accept the terms of the division. The Gemara explains that the reason why Raban Shimon ben Gamliel says that the partner may refuse to divide the Chatzer even though he, apparently, is benefiting from it, is because that partner can claim that he does not want to receive any gift because the verse says, "One who despises gifts will live" (Mishlei 15:27).

This concept of "one who despises gifts will live" seems to contradict the general Mitzvah of giving Tzedakah. Whenever a person gives Tzedakah to a poor person, he is actually harming the poor person by shortening his life by causing him to accept a gift! Similarly, how can it be permitted to give money to support Talmidei Chachamim if "one who despises gifts will live?"

ANSWERS:

(a) The CHIDA (in Teshuvos Chaim Sha'al I:74:42) answers based on the view of the Rishonim mentioned above (see previous Insight) that when the giver has intention to receive personal benefit from giving the gift, then it is not considered a gift. By giving Tzedakah to a poor person or by supporting Talmidei Chachamim, the giver receives tremendous reward for his Mitzvah, and thus it is not considered a gift since the giver also benefits from it.

RAV CHAIM KARELENSTEIN (in Mar'ei Mekomos) answers based on the words of the OR HA'CHAIM HA'KADOSH in Parshas Mishpatim. The verse says, "When you lend money to any of My people, to the poor person among you, do not act to him as one who demands repayment of a loan, and do not set upon him interest" (Shemos 22:24). The Orach Chaim explains the verse to be saying, "If you see that you have more money than you need for your own needs and thus you lend it to My people, you should know that that money is not part of your allotted portion, but rather it belongs to others -- to the poor person among you." (The concept that the money that one gives to poor person does not really belong to the giver is written in the TUR, Yoreh De'ah 247, who says that the money of a wealthy man is a Pikadon, a deposit, from Hashem, Who expects the wealthy man to do the appropriate things with that money.)

Accordingly, giving money to a poor person is not considered giving him a gift, because that money rightfully belongs to him in the first place. (I. Alsheich)