Menashe and Efraim shared an apartment for a year. When they had first moved in, they jointly purchased a computer desk and an eating table.
At the end of the year, Menashe wanted to move out to a different apartment. “What about the furniture we bought together?” he asked Efraim.
“I’m staying here, so I’m happy to keep it and pay you half its value,” answered Menashe.
“I’m willing to do the same!” said Efraim.
“I think it’s simpler that you take one piece of furniture and I take the other,” Menashe offered. “The computer desk and eating table were both about the same price.”
“But each one serves a different purpose,” Efraim said. “I’m interested in having both pieces and am willing to buy them both.”
The two couldn’t reach a resolution, so they approached Rabbi Dayan. After listening to the two explain their predicament, he replied, “A partner is entitled to divide shared property at any time unless there is a stipulation or a custom otherwise. If there are multiple items of the same kind, or a single item that is reasonably divisible, each partner takes half [Choshen Mishpat 171:1].
“If there is a single item that isn’t divisible, each party can demand ‘gode o agode – take or I will take.’ One sets a price, and the other has the option of buying or selling at that price [Choshen Mishpat 171:6).
“The Gemara [Bava Basra 13b] addresses the case of two similar but distinct items, such as a maidservant who cooks and a maidservant who sews. Since each serves a different function, one party cannot demand that both take one maid even if they are worth the same value. Furthermore, a person cannot demand ‘gode o agode‘ on both maidservants together; rather, he must do so on each one separately [Choshen Mishpat 171:13].
“Since the computer desk and eating table are different items, one of you should set a price on either one, separately, and the other can buy or sell at that price. If both of you insist on keeping the actual item, then some say it goes to the one willing to pay the most for it while others say a raffle should be done.
“If the two tables were of the same kind, but one was worth more than the other, many authorities maintain that each party can demand through ‘gode o agode‘ that the other party choose one table and settle the differential in value. However, some maintain that because of the difference in value, the tables are considered different items and ‘gode o agode‘ must be done on each table separately [Sma 171:30, 34; Taz 171:13].
“There is an opinion,” concluded Rabbi Dayan, “that ‘gode o agode‘ applies only to partners who jointly inherited an item or received it as a gift, but not to partners who willingly bought an item together. However, almost all authorities maintain that it applies also to partners who bought an item together” [Shach 171:1; Pischei Choshen, Shutafim 6:24].
