Mr. Jacobs passed away. In his will, drafted in accordance with halacha, he divided most of his assets evenly between his two children, Reuven and Shimon. His primary asset was an apartment which he had been renting out for the past twenty years.
A year later, Reuven and Shimon discussed what to do with the apartment, now listed jointly under their names.
“I’m happy to leave the apartment joint-owned and share the rental income,” said Reuven.
“I would like to sell it,” said Shimon. “I need a large sum of money now, rather than the small monthly income. Do you want to buy my half?”
“No, I’m not in a financial position to do that,” answered Reuven.
“Then I would like to put the apartment on the market to sell to a third party,” said Shimon.
“I’m not out to sell my share,” replied Reuven. “We’re getting a very profitable rent. Also, real estate prices are now low, but I suspect they will climb again in a few years.”
“But I need the cash now, whether or not real estate prices will rise,” insisted Shimon. “You can’t force me to remain in a partnership with you when I would like to dissolve it!”
“On the other hand, you can’t force me to give up my share in the apartment,” argued Reuven. “If you want to buy me out, that would be one thing. But why should you be able to force me to sell to a third party?”
The two decided to approach Rabbi Dayan, and asked, “can Shimon require selling the apartment to a third party?”
“An apartment nowadays, certainly a small one, is considered not fit for division,” replied Rabbi Dayan. Although the minimum living space of 4×6 amos (about 7×10 feet) for each partner exists, a single kitchen or bathroom renders the apartment unfit for division in keeping its functionality (C.M. 171:3,5; Sma 171:5).
“Regarding something unfit for division, halacha advocates renting out and sharing the income, or alternating use of the property. Moreover, even if the property was initially intended for renting out, either partner can demand to dissolve the partnership through gode o agod – i.e., he offers the other partner the option to either buy (gode) or sell (agod) the respective half of the property (C.M. 171:8).
“Rambam (Hil. Shecheinim 1:2), followed by Shulchan Aruch, allows the partner to invoke gode o agod even through selling to others who will buy the property (C.M. 171:6).
“However, Rosh (Responsum 98:3), cited by the Tur and Rema, limits the ability to invoke gode o agod to sell to a third party for financial gain.
“Beis Yosef and Bach suggest that perhaps the Rosh agrees, in principle, with the Rambam in a regular case of gode o agod, but he was dealing with a specific case in which there were simpler selling options, but the partner preferred to sell the entire property to a third party for a profit. However, Rema, followed by several Acharonim, seemingly understands that the Rosh disagrees in principle with the Rambam, and does not allow invoking gode o agod through selling to others (Sma 171:15; Shach 171:7; Nesivos 171:9; Ketzos 103:1).
“Thus, Sephardim should follow the Rambam and Shulchan Aruch, but seemingly Ashkenazim could refuse to sell to a third party, unless the initiating partner himself is able to buy (Shuras Hadin, vol. 13, p. 109).
“Nonetheless, even the Rosh presumably would allow the initiating partner to buy for himself and immediately sell to others, without mentioning this in his initial offer (Pis’chei Choshen, Shutafim 6:27[67]).
“Furthermore,” concluded Rabbi Dayan, “regarding a couple that unfortunately gets divorced, either one can require selling joint property to a third party if neither wants to buy the other’s half, since here the partnership reaches its end (see C.M. 176:14-15).”
Verdict: Rambam and Shulchan Aruch allow a partner to invoke gode o agode to dissolve a partnership through sale to a third party. Rema, followed by several Acharonim, seemingly understands that the Rosh disagrees.
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This article is intended for learning purposes and cannot be used for final halachic decision. There are also issues of dina d’malchusa to consider in actual cases.
