My friend and I went together to a store that sold school supplies. The item I bought was marked at ten dollars and what my friend bought was marked to sell for eight dollars. When we came to pay, we asked the storekeeper for a discount and he said, “Okay, you can have both for fifteen dollars.” I gave him my credit card and he charged us fifteen dollars. Our question is how much my friend owes me since the storekeeper just gave one price for the two items.
Answer
The alternatives for you and your friend are: to split the three dollars that you profited proportionally, meaning you will keep a dollar and sixty-seven cents and your friend the rest, or to split the three dollars evenly between you, each profiting a dollar and a half.
The first issue we must address is the relationship between you and your friend. When the two of you asked the storekeeper for a discount you joined forces to try to obtain a discount for both of you. It is quite plausible, and that is probably what you and your friend thought, that had you each bought separately you would not have received any discount, and almost certainly would not have received such a large discount. This is similar to the discount that buyers in bulk obtain and the reason why a company like Walmart can undercut its smaller competitors.
When two people borrow or buy together the SA (CM 77, 1) rules that they are viewed as partners. One of the consequences is that had the two of you bought on credit from the seller and one of you had not paid the storekeeper, the other one would automatically have the status of a cosigner and would have to pay the full debt. Even though each of you took one object for himself, nevertheless at the time of the sale you acted as, and are legally considered as, partners in the entire purchase.
There is a section of Gemara (Kesubos 93A-B) that discusses two people who pool their assets to purchase something which they eventually sell at a profit. This is similar to what you and your friend did. If we analyze your purchase what occurred is that you contributed ten dollars and your friend contributed eight dollars and your partnership earned three dollars. Your question now is how to split the three-dollar profit that your short-lived partnership earned.
The Gemara begins with a statement of the amora Shmuel that if two people pool their assets, with one person contributing a hundred coins and another contributing two hundred coins, they share equally in the profits. The Gemara cites a dispute concerning the partnerships where Shmuel’s ruling applies. Both opinions agree that it applies to people who pool their assets to purchase an ox to either use themselves or rent to others to plow, and the ox was actually used to plow. Rashi explains that the reason they split the profits equally, in spite of the fact that they contributed unequal amounts towards the purchase of the ox, is because the contribution of both of the partners is essential in order to plow.
The Gemara says that if two partners contribute oxen that were used to plow to a partnership, they split the profits proportionately according to the value of the oxen that they contributed. Rashi explains that in this case the oxen work separately and the contribution of the weaker ox is not the same as the contribution of the stronger ox.
The Gemara also says that if they pool coins and the coins become more or less valuable, they do not split their profit or loss equally but proportionately to their contributions, since their original contributions to the partnership (or their derivatives) are still extant and the profit is earned by each person’s coins independently.
Since there are other cases that are the subject of dispute among the Rishonim, the Sema (176, 15) summarizes by explaining that there are two approaches among the Rishonim to explain why, despite their unequal contributions to the partnership, two partners share equally in the profits.
The opinion of the Rif, Rambam and the SA (176, 5) is like the Rashi that we cited earlier. The principle is that if the contribution of each partner is necessary in order to earn the profit, they share equally and if not, they divide it up according to their relative contributions.
The other approach, advanced by the Rosh (Kesubos 10, 10), is that if the one who contributed the larger amount did not originally stipulate that profits will be divided proportionately, we assume that he agreed to split the profits equally because he was interested in the participation of his partner for any of many possible reasons. We note that we do not need to know the specific reason why the one who contributed the larger amount was willing to share equally. Rather the fact that he did not stipulate that profits will be split proportionately indicates that there is some reason why he agreed to split the profits equally.
Returning to your case, since there is at least a good probability that neither of you alone would have gotten that much of a discount from the seller, your situation is analogous to the situation where the two partners pooled their funds to purchase an ox that was used to plow, since in your case you needed each other to obtain the discount just like the two partners needed each other’s funds in order to buy a whole ox which would plow. We note that the Nesivos (176, 8) explicitly states that this is true even for a short-lived partnership like yours.
We would like to mention one interesting case that illustrates these issues. (The case is discussed in Hamoria 20 page 231-4.) A case came before beis din concerning two people who formed a partnership to purchase and develop properties in Jerusalem. They purchased a property where A contributed 75% of the cost and B contributed the remaining 25%, and they agreed that they would share equally in the profits.
After twenty years, they sold the property for a very sizable profit. However, the profit did not result from development of the property since they were not able to develop the property. Rather the profit was entirely the result of the general increase in prices for real estate in Jerusalem. Beis din was asked to rule how to divide the profits.
One dayan ruled that since they agreed to divide the profits equally, the profits should be divided equally even though their original plans did not materialize.
However, the av beis din, Rav Shiloh Rafael, contended that this was incorrect. He argued that we have to first understand why A, who contributed 75%, would agree to split the profits equally. He agreed with A’s contention that the reason was because A lived abroad and had no knowledge of how to develop property in Israel, whereas B, who worked as a land developer, had much experience in Israel. Therefore, one could not base a decision on their agreement, since it was made to cover the development of the land. Since it was not developed, we have to consider the situation as a partnership that was formed without any agreement concerning division of profits. In the absence of an agreement, one has to rule according to the laws of the SA.
Rav Rafael contended that even though the partnership was formed in order to earn money by developing the property, which is similar to the purchase of an ox in order to earn money from the plowing of the ox, since in fact the property was not developed, we have to divide the profits based on the manner that the profits were earned. He compares this case to the case in the Gemara where the money itself that the two parties contributed increased in value since in both cases the profit was earned without any effort on the part of the partners. (He cites as proof the Sema that was cited earlier and the Nesivos (176, 8).) He ruled that therefore the profit must be divided according to ownership of the property with A receiving 75% of the profit and B receiving 25% of the profit.
(We note that while it is correct that the Nesivos explicitly states (beg. words veachar kach) that this is the ruling of the SA there are other opinions who disagree for two reasons: 1-The Maharit (CM 2, 108) remains with a doubt as to whether one can compare partners whose goods increased in value without any effort, which is the case at hand to partners whose money increased in value effortlessly, the case that was discussed by the Gemara. And 2-the Taz and the Shach both maintain that one has to take into account the approach of Tosafos and the Rosh who disagree with the ruling of SA which follows the Rambam.)
It is important to note that the ruling of Rav Rafael assumes that if each partner had taken the funds that he contributed to the venture and purchased a property on his own, he would have earned the same profit as his proportional share of the profit on the property that they bought. If were not the case, the ruling of the first rov would be correct that the profit must be divided equally.
Since in your case both of your contributions were needed in order to earn a profit, you must divide the three dollars of profit equally. Therefore, you can ask your friend for only six and a half dollars.
