Last week’s column stated that custom dictates that partnership decisions are determined by a majority. This reminded me of a situation when my partners made a decision without consulting with me. I am certain that given the opportunity I would have convinced them to follow my position.

Q: Is that decision binding since I wasn’t consulted about it?

A: When ten people are appointed judges and the agreement states that if they do not reach a unanimous decision the matter will be decided by a simple majority, it is imperative that all ten panel members vote. If a member is not present for the final vote or refuses to vote because he does not know what to rule, the decision of the remaining nine is void, even though they unanimously agree. The reason is that the non-voting judge could assert that, had he reached a decision, he might have been able to convince the other judges of his opinion (C.M. 13:7). Even though had he voted, he would have been outvoted, nevertheless, by declaring that he does not know, it is treated as though he was not part of the deliberations, and the agreement was that the matter would be decided by a panel of ten judges.

Some argue that it is only regarding beis din and communal decisions (where they are striving to ascertain the truth) that it is imperative to include everyone in the debate before voting. Business decisions do not involve an attempt to ascertain the truth, and it is understood that personal biases will play a factor in each partner’s vote; therefore, as long as a majority votes a certain way, that decision is binding, even if some of the partners were absent when the matter was debated and voted upon (Mishpetei HaTorah 2:67).

However, we do find Poskim who maintain that when partners agree to make decisions according to a majority vote, all the partners must be present for the discussion (Maharit 1:95, cited by Erech Shai 176:10; Pischei Teshuvah 231:6).

Generally, the discussion before the vote must be done orally and it is questioned whether written communication suffices (Kuntres Hasemichah [Maharlbach], Seder Hadin 8:2). Obviously, if the partnership agreement states that written communication suffices, that would be acceptable (Maharashdam, Y.D. 78; Teshuras Shai 2:56).

Concerning a panel of judges, if the non-voting judge returns and agrees with the decision of the others, that decision is binding (Maharashdam, ibid., cited by Pischei Teshuvah 13:7). If, upon the return of the non-voting judge, they deliberate together and nevertheless remain with their original decision, there are authorities who contend that the matter is not decided by the majority. The concern is that the judges will be hesitant to change their vote since it constitutes an admission that the initial vote was incorrect (Maharlbach, Kuntres Hasemichah, p. 2b).

Precedent for this concern is found in a case when a judge spoke with only one of the litigants and, in violation of Halachah, wrote a ruling. That judge may no longer serve on a panel of three judges to adjudicate the dispute, out of concern that his mind is made up and he will not be receptive to changing his original position (Shach, C.M. 17:9).

These concerns, however, apply to issuing halachic rulings where it is potentially humiliating for a judge to have to admit that he ruled incorrectly. Regarding a partnership, if the partners convene a second time with all the members present, we are not concerned that members who voted already will be reluctant to change their position for their benefit, since it is not as humiliating to simply change one’s opinion (see Maharit, ibid.).