Q. My partner and I buy and sell merchandise. I heard about a great deal on some merchandise from which we could turn a hefty profit, but the manufacturer wanted $10,000 up front. I was unsure whether he was trustworthy, but the profit margin was so enticing that I sent him the money. As it turns out, my suspicions were confirmed; he disappeared with my money and never sent the merchandise.
Am I obligated to compensate my partner’s portion of this investment because I was negligent in this matter? If yes, what if I investigated, to some extent, and it seemed that the manufacturer was honest? Am I still required to pay?
A. Obviously, if you and your partner stipulated, upon forming the partnership, how such damages would be settled, that agreement would be binding. Our discussion will address how this situation should be handled in the absence of such an agreement.
Generally, each partner in a business is required to treat the shared assets in accordance with local business practices. If one of the partners diverges from the local practice and causes a loss, he must absorb the entire loss himself, but if there is a profit, he must share it with his partner (Shulchan Aruch, Choshen Mishpat 176:10). For example, if the local practice is not to sell merchandise on credit, and one partner decides to extend credit to a customer who then defaults, that partner is obligated to repay his counterpart for his half of the loss; but if the customer does pay in full, he must split the profit with his partner.
The question is whether this obligation stems from the halachos of shomer (guardianship) or hezek (damages). Partners are shomrei sachar (paid guardians) for the shared assets, and since one was negligent in guarding his partner’s share, he must compensate him for the loss (ibid. 176:8). Or is that partner’s departure from local business practice akin to inflicting damage on his friend’s portion (see Shach ibid.16)?
One practical difference between these two approaches would be in a case in which, according to Hilchos Shomrim, the negligent partner is not obligated to pay — e.g., a case of be’alav imo (as we will explain shortly). Is he still obligated to pay because he is a mazik? (Cf. Pis’chei Teshuvah ibid. 13 and Mishpat Hamazik 3:13.)
In the case of be’alav imo, the owner of an object was doing some sort of work for the shomer (guardian) when the latter took possession of that object to begin guarding it. The halachah in such a case, as derived from a gezeiras hakassuv (scriptural decree; see Shemos 22:13-14), is that the shomer is not obligated to pay for damages to the object — even if he was negligent in guarding it (Choshen Mishpat 291:28 & 346:1).
Returning to the case we discussed above, some poskim rule that if the local custom is that no one sells on credit, then a partner who did so is considered a mazik, and is obligated to repay his partner’s lost portion; he is not absolved because of be’alav imo. But if some local businesspeople do sell on credit, then, although the partner who did so acted improperly, since this is not the standard practice, he is not considered a mazik, only a shomer who was negligent (Mishpat Shalom 176:10).
Applying this principle to your case, we must consider whether you were obligated to investigate carefully to ensure that the seller was not a thief — a common phenomenon, for instance, with manufacturers from China. If the likelihood of your being conned was high, then you are considered a mazik for not taking steps to protect the shared assets from that possibility. But if other businesspeople would risk buying from such a seller and prepaying for the merchandise, then you are not a mazik; you are merely negligent in guarding the shared assets, so you can only be held responsible as a shomer.
If so, you would not be obligated to repay your partner even without the exemption of be’alav imo, because a shomer is responsible only if he was negligent in guarding something that has inherent value (gufo mammon). An item that doesn’t have inherent value, but rather has the potential to be used to access money — a check, for example — is not subject to the halachos governing shomrim (Choshen Mishpat 301:1 & 66:40).
A bank account, too, is not gufo mammon, because the physical money belonging to the accountholders is not stored in a specific place for them; rather, the balance of the account represents the amount the bank owes the accountholder and must repay him upon request. The balance in a bank account is, therefore, not subject to the halachos of shomrim (see Erech Shai 66:40). Since you sent the money to the manufacturer from the company account, you are not obligated, according to the letter of law, to repay your partner.
Nevertheless, you should repay latzeis yedei Shamayim (to avoid Heavenly retribution; see Imrei Binei, Hilchos Pesach 5). Even in a case of be’alav imo, a shomer is obligated to pay latzeis yedei Shamayim if he was negligent in guarding the item placed in his care (see Ohr Hachaim, Parashas Mishpatim 22:14 and Tal Torah, Bava Metzia 97).
