Question
I and another religious real estate broker established a partnership a few years ago. Our agreement is that we will each seek to make deals and whatever each of us earns as a broker he will split with his partner. Recently, someone approached my partner and offered him information about a property that the owner was willing to sell. He made an agreement with my partner that if my partner is successful and arranges a sale, he will be paid five thousand dollars of the commission. My partner was successful but he refused to pay the informant because he maintains that the person who gave the information tried to sell it himself which he feels is in violation of their agreement. I asked a rov and he said that my partner's contention does not free him from his obligation. My friend gave me half of his commission as provided by our partnership agreement. My question is am I obligated to pay the one who gave my partner the information or it isn't my business?
Answer
There are a number of issues which we must investigate.
The first issue concerns your relationship with your partner. You say that you are partners but the question is whether from a halachic standpoint you are really partners who are bound by your agreement. The Rambam (Shutfin 4, 2) maintains that an agreement such as yours, where you both agree to work for each other, is problematic within the framework of Torah law because you are making an agreement to share future profits which at the present are a dovor shelo bo le'olom - something that doesn't yet exist. (The examples the Rambam gives are two tailors or two weavers who made the same agreement that you and your friend made.) Just like one cannot sell an apple that he does not yet own, even if he is on the verge of obtaining the apple, so too one cannot make a binding agreement about future earnings since they do not exist at the time of the agreement, according to the Rambam.
However, while SA (176, 3) follows the Rambam's approach, many, including the Ramo (ibid), disagree and maintain that the partnership agreement is valid. Since the Rambam's argument is well-grounded, those who disagree had to find a method to resolve the Rambam's objection.
One approach is suggested by the Ra'avad (glosses to Rambam ibid). He maintains that when partners make an agreement to share in their profits, they give each other a limited ownership of each other's hands for the work that he does. Just like a person can transfer ownership of his entire body by selling himself as a slave, so too one can transfer a limited ownership of his hands in order to transfer the production that he will produce in the future, as for example, a tailor can thereby transfer a share in his production to his partner.
A second approach is suggested by a Rishon who is cited by the Hago'os Maimonies (Gezeilo 12, 10), as well as the Ba'al Ha'itur (Shutfim) in the name of R. Mushulam. His approach is that the agreement is valid because it is mutually beneficial and we find in the Gemara (BB 106B) that an agreement that is mutually beneficial is halachically valid even without a formal act of kinyan.
A third approach is based on the Ran and others who maintain that the agreement is a work agreement where each partner agrees to work for the other and therefore, each partner is an employee of the other and their relationship is governed by the laws of workers (sechirus po'alim).
We note that the different approaches have different consequences. For example, if one views the agreement as a work agreement, each party has the right to terminate the agreement at any time, if it does not cause a loss to his partner since a worker has this right (po'eil yochol lachzor bechatsei hayom).
Thus, while the SA follows the Rambam's approach, the Ramo rules that the partnership agreement is valid, basing himself on the various opinions that were cited above. Additionally, the Chassam Sofer (Res CM 96), cited by Pischei Teshuvo (176, 3) writes that even the Rambam and SA would agree that the partnership agreement is valid if it is the established custom, as it is today.
Having determined that you and your partner established a halachically valid partnership agreement, we have a framework to arrive at an answer to your question.
Since you are legal partners. your partner fulfilled his obligation towards you by giving you half of his profits from this sale. At the same he created an obligation to pay five thousand dollars to a third-party and your question is how to view this obligation, in light of the fact that you two are legal partners: Is his obligation a personal obligation that only concerns your partner or did he create an obligation on you as well?
The Tur (CM 77) discusses this question in the context of an obligation that is based on a loan. He cites the Ramban who rules that if one partner borrowed money for a partnership, the other partner is also liable for repayment of the loan. While the Tur and Beis Yosef discuss whether the other Rishonim agree with the Ramban, SA (77,2) rules like the Ramban. While the Ramo cites other opinions as well, in your situation, since you agree that your partner obligated himself to pay the source of the information, you are also personally obligated to pay the source of the information.
The basis for a partner's ability to obligate his partner according to the Gro (77, 13) is a Gemara (BB 42B) that rules that a partner has the status of a yoreid bershus, one who on his own initiative acts on another person's behalf, with his permission. In your case, your partner was acting with your permission to arrange the sale that was made with the information that was given to him. As a yoreid bershus you, the partner, are entitled to your share of the profits that resulted from your partner's action, but at the same time you are liable for your share of the expenses that were incurred by your partner in order to earn the profits. In your situation, an expense that your partner incurred was the five thousand dollars that he obligated himself to pay to the one who supplied the information. Since you are an equal partner in the profits, you must pay half of the expenses.
Thus, we have established that you personally owe $2,500 to the one who gave the information and your partner is liable for the same amount.
The final issue which we must consider is whether you have any responsibility for the money that your partner is refusing to pay.
This issue is discussed by SA (77, 1-2). Based on a Yerushalmi, SA (77, 1) rules that if two people borrow money together or otherwise incur a liability together, each one, besides being liable for his share of the obligation, has the status of an oreiv (a cosigner) for the other person's debt.
There is a dispute among the Rishonim what type of oreiv, they are. The position of the Rosh and his son, the Tur, is that they are an oreiv kablan for each other as we will explain. However, most Rishonim, and that is the ruling of the SA, is that they are simple cosigners for each other.
The difference between these two types of oreiv is that if one is an oreiv kablan, the one who is owed money can demand that the oreiv pay even if there is a possibility that he can collect from the one who is directly liable. However, if one is a simple oreiv, the one who is owed money cannot demand that the oreiv pay unless he first sues the one who is liable. Only if it is not possible to collect from the one who is liable, can he collect from the oreiv.
Based on the above, besides being liable for $2,500 you have the status of an oreiv on the $2,500 that your partner owes. However, since you are a simple oreiv you do not have to pay as a cosigner until the informant sues your partner in beis din, and beis din rules that your partner must pay and he refuses to comply with beis din's ruling. However, until he does so, you need not pay as a cosigner.
In conclusion: You must pay the $2,500 that is your responsibility, but in the meantime, you are not required to pay any more.
