1)COMPENSATION FOR AN INFERIOR SHARE

(a)Gemara

1.(Beraisa): Eretz Yisrael was divided only according to value - "Bein Rav li'M'at".

2.Question: Regarding what was this taught?

i.Suggestion: It refers to the different qualities of land.

ii.Rejection: We do not discuss fools (who accept money in place of the proper amount of land)!

3.Tana'im argue about this.

i.(Beraisa - R. Eliezer): Those who received closer portions (to Yerushalayim) gave monetary compensation to those who received distant portions.

ii.R. Yehoshua says, compensation was given in land.

(b)Rishonim

1.Rosh (Teshuvah 98:3): A case occurred in which Reuven left to a widow and son a house (Beis Din ruled that each gets half.) On top there was an Aliyah and a store, and there was a cellar underneath. The son wanted to sell it all together, to get the best price, and to give to her half. She wanted just the house, and whichever side was worth more would compensate the other. If the house is big enough to split, we split it and everything above and below it. If not, they use it together, because the son does not intend to buy it for his own needs. Here, the Aliyah is a dwelling unto itself, and also the store, and also the cellar, so the Halachah favors the widow. If the heir wants to buy through the estimation of Beis Din, one compensates the other.

2.Teshuvas Maimoniyos (Kinyan 36): If there will be enough for each side (if they divide) only if rooms are broken, we do so only if this is possible with a small loss. If one side has more buildings, beter land or is closer to Reshus ha'Rabim, it compensates for his through money.

3.Ramban (12b DH v'Chol): Whenever we compensate (one who received an inferior portion), it is with land, like we say on 122a. Even regarding distance, we hold like R. Yehoshua, who says that compensation was given in land. Therefore, if one offers compensation in money, and the other offers compensation in land, we follow the latter, for he says like the Halachah.

4.Rabbeinu Meir mi'Rottenberg (4:238): The thickness of the wall does not count towards the calculation (whether each will receive a proper share if they divide) like the interior of the houses and Chatzer does. This is because destroying the wall causes a loss. Even if one desires this, we do not heed him. Even if a Chatzer would be big enough to divide if they built a (five Tefach) wall of smooth stones in the middle, but the custom in the city is to build a (six Tefach) wall of smooth stones in the middle, and then each will not receive a proper portion, one cannot force his neighbor to do unlike the custom. All the more so, he cannot force him to destroy a wall! If two are holding a Talis or riding an animal together, we do not divide it if it will cause a loss. If one will receive a portion near Reshus ha'Rabim, and the other will receive a portion open to a cReshus ha'Rabim. In such a case, compensation is given in land, like R. Yehoshua taught. We learn from division of brothers from the division of Eretz Yisrael (Kidushin 42a). However, if only one portion has a house with rooms and upper stories, even R. Yehoshua agrees that he gives monetary compensation, for with the money the other can also build similarly.

5.Rivash (227): Normally, one cannot force his partner to divide and each will take one house, for houses are unequal. Some have rooms, upper stories, kitchens, storage areas, etc. We do not trade a house for a room or upper story, or a room for a kitchen, for they have different uses. This is like two slaves. If one knows to make rugs, and the other knows to cook, one cannot (force his partner to) trade one for the other. This is obvious according to the Ramban, who holds that high and low quality land are like different items, even if they are worth the same, and one cannot trade one for the other. Normally, one house has better air or is built better than the other. Also, normally one would need to change openings or windows to avoid Hezek Re'iyah. We do not force one to divide if he will need to destroy, build and incur expenses.

i.Shitah Mekubetzes (122a DH Rebbi, citing the Ran): R. Yehoshua says that compensation even for proximity and distance are with land, all the more so we hold like this regarding poor and good land.

(c)Poskim

1.Rema (CM 171:5): If in one side (of a Chatzer) there are buildings, and there are not so many buildings on the other side (or on one side there is Reshus ha'Rabim, and on the other side is a Simta (shoulder of Reshus ha'Rabim), we compensate with money until the portions are equal. This is all so we will not need to break buildings and cause a loss. If both sides agree, they may do whatever they want.

i.Gra (18): This is like we learned in Bava Basra (that they compensated with money).

ii.Question (Einayim l'Mishpat 122a DH v'Lo): The Rema is from Teshuvas Maimoniyos (above), which discusses poor and good land, not distance!

iii.Note: Teshuvas Maimoniyos discusses compensation for proxmity to Reshus ha'Rabim.

iv.Beis Yosef (DH v'Chosav): If the entire Chatzer had a privy, big oven and/or bathhouse, one cannot force the other to divide unless he will have all of these in his share. Even if he owns these elsewhere, he can say 'I want to use them here, without need to spend money.'

v.Nesivos ha'Mishpat (Bi'urim 6): In Sa'if 13, if two things have the same use but they are not worth the same, one opinion holds that one cannot say set a price and say 'Gud O Agud' (buy my share for this price, or I will buy your share for this price). The same should apply when one side has more buildings than the other side! Perhaps Sa'if 13 discusses high and low quality land. Monetary compensation cannot transform bad land to make it good, but it can be used to build buildings. One may force a division when one of the Chatzeros opens to a Simta if with monetary compensation one can open it to a Reshus ha'Rabim. The Rivash says that we do not divide different kinds of houses, even if one is willing to give compensation that would cover the costs to make the other house equal.

2.Shulchan Aruch (13): If partners have two things with the same use, and they are worth the same, and neither is big enough to split, surely 'Gud O Agud' applies. The same applies if they are not worth the same. Some disagree.

i.SMA (34): The Tur disagrees, for good and bad are like different items.

3.Shulchan Aruch (14): If two brothers inherited two big houses, and each is big enough be divided, and Reuven says 'we will each take half of each house', and Shimon says 'each of us will take one entire house', we heed Shimon.

4.Rema: This is when they have the same use. Some say that we do not trade most houses, for they are not the same. We do not trade a house for a room or upper story, for they have different uses. All the more so we do not trade if one would need to seal windows or openings or spend money to build. However, the Rosh connotes that we trade a house for a store or cellar. It seems that we also trade a house for a room or upper story. Also this is called the same usage.

i.Sho'el v'Nish'al (5 CM 99): It is clear from the Rema that even though the houses are unequal, the compensation is monetary.

ii.Question (SMA 38): The Rema says that the Rosh connotes that one can force the other to trade a house for a store or cellar. This is wrong. He said that if the son wanted to sell it all together, and she wanted just the house, we heed her. If the son wants to remain partners, she cannot force him to divide and trade!

iii.Answer (Shach 13): At the end of the Teshuvah, the Rosh says 'the Halachah favors the widow. If the heir wants to buy through the estimation of Beis Din, one compensates the other.' This supports the Rema.

iv.Taz: The SMA is correct. We should rule like the first opinion, which is of the Rivash.

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