Shimon and Yosef had jointly inherited from their father a $20,000, 30-year Treasury bond, which would mature in another five years.
“What should we do about the bond?” Shimon asked Yosef.
“It matures in five years,” Yosef replied. “When it matures, we’ll split the money.”
“I’m not interested in waiting five years,” said Shimon. “First of all, who’s holding the bond until then? Unfortunately, our relationship is not ideal as it should be between brothers… Second, I’d rather invest the money in other ways.”
“I’m happy with the bond,” said Yosef. “Its rate is higher than current interest rates.”
“That’s true,” replied Shimon, “but over five years I still would prefer to invest in stocks.”
“I’m cautious about stocks, especially now,” said Yosef. “I’m not willing to redeem the bond, because I can’t get that rate nowadays.”
“If I had my way, I’d redeem it tomorrow!” responded Shimon. “I’m simply not interested in being a partner in the bond!”
“Well, the reality is that due to the inheritance, we are partners,” said Yosef flatly. “There’s not much that can be done about it!”
“Why not?” said Shimon. “If you want the bond, give me half of what it’s worth now; otherwise, I’ll give you half of what it’s worth and then do with the bond what I see fit.”
“I’m not interested in buying or selling,” said Yosef. “You can’t make me do either!”
“But you can’t make me remain a partner in something that I don’t want partnership in!” exclaimed Shimon.
The two approached Rabbi Dayan and asked:
“Can Shimon require Yosef to dissolve the partnership, or can Yosef insist that they jointly hold the bond till maturity?”
“In general, when two brothers inherit an item that cannot be split, each one can demand to dissolve the partnership through gode o igode – take or I will take,” replied Rabbi Dayan. “One party offers the other the option to either buy his half or sell to him the other half” (C.M. 171:6).
“Regarding partners who own a mortgage not yet due, Rashba (Responsa 7:43) maintains that gode o igode does not apply, since when the mortgage loan matures, the money that will be received can be split.
“However, Rosh (98:7) maintains that each partner can demand to dissolve the partnership also in loan documents; since a loan document cannot be split now, gode o igode applies. Thus, each partner can demand that the other either buy his half in the bond, or sell the other half to him. Beis Din (or a qualified professional) would evaluate the worth of the bond, depending on the various factors – the time frame, credit rating of the investment, etc.
“Tur and Shulchan Aruch (C.M. 66:41), in the laws of loan documents, cite the opinion of the Rosh, that gode o igode applies also to loan documents.
“Rema does not comment there. However, in the laws of gode o igode, Rema (C.M. 171:14) mentions the opinion of the Rashba that gode o igode does not apply to a mortgage and the like, whereas in the laws of partners, Rema (176:20) rules like the Rosh that gode o igode applies to loan documents.
“Sma (66:91; 171:39; 176:53) is inconclusive about the Rema’s opinion; alternatively, he suggests a possible distinction between a mortgage and loan documents” (see also Taz 171:14).
“Shach (66:131), however, rejects the distinction of the Sma and rules like the opinion of the Rosh and Shulchan Aruch. He suggests that the Rema merely mentioned the opposing opinion of the Rashba, but does not rule so. This appears to be the consensus of later Acharonim, that gode o igode applies to loan documents” (Pischei Choshen 3:23; see, however, Nesivos 176:40).
“Thus,” concluded Rabbi Dayan, “Shimon can demand that Yosef either buy his half of the bond or sell him the other half.”
Verdict: There is a dispute between the Rishonim regarding whether gode o igode applies to debt destined for collection. The consensus of poskim seems like the Rosh, that it applies.
