Q&A: On the Nature of Partnership, and Regarding a Convert
On the Nature of Partnership, and Regarding a Convert
Question
It is well known that the later authorities (Acharonim) investigated the nature of partnership: does each partner own a portion of the object, except that it is not known which portion, or does each one own the entire object?
And a practical difference would be, among other things, if one person was a partner with a convert, and the convert died without heirs: does his share become ownerless, so that anyone can acquire it (if we say the first possibility, because from the outset his fellow had only part of the object in any case), or does his fellow automatically become the owner of the entire object (if we say the second possibility, because from the outset he already owned the entire object, and it was only the presence of the convert that made him a partner with him)?
Now, seemingly in Bava Kamma (49b, until the word “la’amala” before the colon) there is a case of a woman who was married to a convert, and someone struck the woman and caused her children to come out, so he must pay compensation for the fetuses to the convert (the husband), and the enhancement in value of the fetuses, half to the woman and half to the husband. Now the Talmud writes that if first the convert died and only afterward he struck the woman and caused her children to come out, he is nevertheless obligated to pay the entire enhancement in value of the fetuses to the woman. We do not say that he owes only half to the woman and the other half he can seize for himself (by virtue of the rule that the portion that belonged to the convert became ownerless upon his death), because “since her hand has a claim in them, she acquires all of them”—that is, the woman was a partner with her convert husband in the payment for the enhancement in value of the fetuses, and now that her husband died, she becomes the owner of the entire payment for that enhancement.
Seemingly, can one prove from this Talmudic passage like the second side of the inquiry above?
Answer
First, this already appears in the medieval authorities (Rishonim). See at length in the Ran at the beginning of the chapter Ha-Shutafin in Nedarim. There are more than two possibilities: each of the two partners is a co-owner of every particle; each owns an unknown half; or the whole thing is jointly owned by both of them. It is not entirely clear to me what the practical difference is when one of them is a convert who dies—why the question would be whether ownership passes to the other or not. Simply speaking, it always passes to the other, because he is in possession of that half, and that half is ownerless. Perhaps there is a practical difference if for some reason he does not want to acquire it.
And accordingly, regarding striking the woman: if the convert died and afterward that person struck the woman, then according to all views the woman acquires everything, because the fetus is in her domain alone.
Discussion on Answer
Because he is holding the whole thing; it’s just that until now that half did not belong to him (but it was in his possession).
I didn’t understand why, just because the second partner is holding that half, ownership automatically passes to him when his partner dies.