Malveh veLoveh - Chapter 25

For failing to pay his debt.

Even in such an instance, where the fact that the lender released the borrower on the person’s request does not generate a binding commitment.

The rationale is that the lender originally gave the loan without the guarantor’s making a commitment. Afterwards, when the guarantor did make the commitment, he did not formalize it in any manner or form. Hence, a binding obligation was never created.

As reflected by the contrast to the following halachah, this refers to a situation where the court is not in the process of taking action, and the guarantor’s commitment does not generate any immediate satisfaction for him.
Based on the statements of the Hagahot Maimoniot and the Ramah (Choshen Mishpat 129:1), Sefer Me’irat Einayim 129:3 rules that if the person acts as a guarantor and pays the debt upon the request of the borrower, the borrower is liable to reimburse him. He cannot claim: “Since you were not liable to pay the debt, I am not bound to reimburse you.” See Chapter 26, Halachah 6, for a discussion of this issue.
The Ramah (ibid.:3) qualifies the exclusion implied by the Rambam, stating that if the lender frees the borrower of responsibility entirely and transfers the responsibility to the guarantor, the guarantor is liable. Similarly, the guarantor is liable if he has money belonging or due to the borrower in his possession.

For the kinyan itself is sufficient to demonstrate the seriousness of the guarantor’s commitment and thus create a binding obligation.
The commentaries question whether this obligation also creates a lien on the guarantor’s property to the extent that even after it is sold, it may be expropriated from the purchasers and given to the lender. The Nimukei Yosef explains that when a legal document securing the guarantor’s commitment is not composed, such a lien is not established. We fear that since the guarantor’s commitment does not involve his personal obligation, it will not become public knowledge. Thus, the purchasers may not have known about the matter and could not be expected to take the necessary cautions. From his statements in Chapter 26, Halachah 1, it appears that the Rambam follows this view.
The Ramah differs and maintains that since a kinyan was undertaken, the awareness of the matter will spread, and the purchasers will be informed. Hence, the lien is extended to such properties. See also the Shute han Aruch (Choshen Mishpat 129:6), which quotes both opinions.

The Ramah (Choshen Mishpat 129:2) rules that the guarantor becomes liable even if he makes less specific statements. As long as he asks the lender to make the loan and assures him that his money will be returned, he is obligated.

Since the lender gave the money because of the guarantor’s commitment, it is obvious that the commitment is serious and a lien is established.

Note, however, the contrast to an erev kablan mentioned in the following halachah.

See Chapter 26, Ha1achah 4, which adds particulars concerning this situation. See also Chapter 3, Halachah 7, which describes how security can be taken from a guarantor.

I.e., that the lender can seek payment from the guarantor.

As long as the borrower cooperates with the court, the lender may not seek payment from the guarantor.
Similarly, it applies even when the borrower possesses property of inferior quality [Shulchan Aruch (Choshen Mishpat 129:8)] and even in an instance where he is bankrupt, and property that he sold to others must be expropriated to pay the debt (Sefer Me’irat Einayim 129:27 in the name of Rabbenu Tam). See also the notes on the following halachah.
Nevertheless, the Maggid Mishneh emphasizes that even if the borrower does own property, but it is located in a foreign land, and it would require great effort and expense for the lender to collect it, or the borrower himself is overseas, the lender may seek payment from the guarantor.

See Chapter 22, Halachah 3.

And thus he has a right to approach the guarantor.

The rationale is that the borrower’s property is also on lien to the debt - and indeed, that obligation is also based on the principle of a guarantor (Kessef Mishneh, Chapter 18, Halachah 1). Hence, that lien is exercised before the guarantor is approached.
As stated by the Tur and the Shulchan Aruch (Choshen Mishpat 129:14), this principle is not accepted by all authorities. There are opinions that maintain that since such a stipulation was made, the lender is given this option.
The Maggid Mishneh questions: According to the Rambam’s opinion that the lender is not granted this right, what is the difference between an ordinary guarantor and one who accepts such a stipulation? He explains that with regard to an ordinary guarantor, even if the borrower is not known to possess any property, the lender must sue him and prove bankruptcy before approaching the guarantor. When, by contrast, the guarantor accepts this stipulation, as long as it is not known by people at large that the borrower possesses property, the lender may approach the guarantor. He need not sue the borrower first. This conception is reflected in the ruling of the Shulchan Aruch (Choshen Mishpat 129:8).

By adding the word "first," he clarifies his intent. Hence, if the guarantor agreed, the lender is granted this right.

The word kablan has its roots in the word, kabel, “to accept” - i.e., he accepted responsibility for the debt. Perhaps the most appropriate English translation would be “underwriter.”

As stated in Chapter 26, Halachah 3, the fact that the lender may approach the guarantor first does not release the borrower from his obligation. If the lender desires, he may demand payment from him first.

Since he uses the same wording with regard to himself that he uses with regard to the lender, it is obvious that he accepts full responsibility. It is as if the lender acted as his agent and gave the money to the borrower on his behalf (Rashbam, Bava Batra 174a; Kessef Mishneh).

The Tur and the Ramah (Choshen Mishpat 129:18) state that such a statement defines the person as a kablan.

In all of these situations, it appears that the guarantor’s intent is “If the borrower does not pay you, I will pay you” (Kessef Mishneh).

As the Maggid Mishneh mentions in his gloss on Hilchot Ishut 17:9, this applies only to the basic obligation of 100 or 200 zuz. With regard to the nedunyah, the resources that the woman brings to the new home, a guarantor is liable if he undertakes a commitment, for in this instance the woman is actually committing resources of financial value.

He enabled the couple to marry, which is a mitzvah.

The woman did not suffer a direct financial loss by marrying. For she did give her husband any money, and indeed, she also desired to marry. It was not the promise of the guarantor that caused her to make this decision. All that was necessary was a gentle push. This was his intent; he did not seriously make a commitment.
The Ra’avad does not accept this ruling and maintains that if the person affirms his commitment with a kinyan, he is liable. The rationale is that according to the Rambam, the commitment described in this halachah is an asmachta - a promise made without a serious commitment - and a asmachta is not binding even when the person affirms it with a kinyan. The Ra’avad, by contrast, maintains that the commitment is genuine. The Shulchan Aruch (Even HaEzer 102:6) quotes the Rambam’s view, while the Tur and the Ramah quotes that of the Ra’avad.

Because of the connection a father shares with his son, when he makes such a commitment and affirms it with a kinyan, he is liable. The Ra’avad differs in this instance as well, and maintains that the obligation is established even when it is not affirmed by a kinyan.

In Hilchot Ishut, loc. cit., the Rambam defines a kablan as someone who tells a woman: “Marry this man, and I will pay the ketubah.” He is liable even when he does not affirm his commitment with a kinyan.

I.e., if a creditor of Reuven’s expropriates it from Shimon, Levi agrees to make restitution to Shimon.

I.e., we assume that Levi took for granted that Reuven would pay his debts. Thus, he never intended to undertake this obligation.
The Ra’avad objects to the Rambam’s ruling, maintaining that the person is making his commitment to act as a guarantor when the money is being paid. Hence, the commitment should be binding, as stated in Halachah 2. The Maggid Mishneh defends the Rambam’s decision, explaining that there is a difference when a person decides to guarantee a loan and when he guarantees a sale.
When a person guarantees a loan, his guarantee centers on the money itself. Hence, it is when the loan is given that the guarantee must be made. With regard to the sale, he is guaranteeing the land - i.e., if the land is taken from the purchaser, the guarantor will compensate him for his loss. Hence, the moment of importance is not when the sale is made, but when the land is expropriated. And at the time, a commitment was not made.
Moreover, in such a situation, even if he affirmed his commitment with a kinyan, he is not bound by it. For in most instances, a kinyan does not validate an asmachta.
The Kessef Mishneh offers a different distinction. When a person guarantees a loan, he knows that the loan will be spent, and therefore undertakes the responsibility with a knowledge of his obligation. When he guarantees the sale of property, once the buyer takes control of the property, the seller does not expect the land to be expropriated. Hence, his commitment is not serious.
The Tur gives a further explanation for the Rambam’s position, citing as a parallel the fact that there are times that people purchase a field without demanding that the seller undertake financial responsibility. They are satisfied to use it for only a limited period.
The Shulchan Aruch (Choshen Mishpat 131:9) quotes the Rambam’s view, while the Tur and the Ramah cite that of the Ra’avad.

I.e., he does not accept responsibility for the land. Regardless of how much the land is worth, he guarantees only the money involved in the sale.

For in this instance, his commitment is explicitly for the money and not for the land, and the kinyan indicates the sincerity of his pledge.

In one of his responsa, the Rambam quotes Rav Yosef MiGash as ruling in this manner.

The Tur clarifies this statement, explaining that every commitment to act as a guarantor is - to a certain degree - an asmachta. For the guarantor desires the borrower to repay the debt. Nevertheless, when there is no condition involved, he accepts the possibility that he may be held responsible. When, however, there is a condition involved, he presumes that the condition will (or will not) be met, and thus he will not be held liable. Hence he does not make a sincere commitment.

Our translation follows the understanding reflected by the traditional version of the Mishneh Torah. The Tur, however, quotes a slightly different version, from which it appears that the intent is that the person restated the stipulation, stating it in a negative manner after stating it in a positive manner, as is required with regard to a conditional agreement. (See Hilchot Ishut, Chapter 6.)

The Tur also states - and seemingly, the Rambam would accept this view - that if the guarantor states that he accepts responsibility me’achshav, “from the present time onward,” he does become responsible.
In contrast to the Shulchan Aruch (Choshen Mishpat 131:10), which mentions only the Rambam’s view, the Tur and the Ramah mention the view of the Ra’avad, who maintains that a commitment to act as a guarantor is never nullified because of the concept of asmachta.

Or accepted an article for safekeeping together [Maggid Mishneh; Ramah (Choshen Mishpat 77:1)].

The Maggid Mishneh quotes the Ramban as explaining that they are considered guarantors, but not kablanim. The creditor cannot approach the guarantor for payment until he first approaches the principal. Significantly, the Tur - perhaps because the version of the Mishneh Torah that he possessed was different from ours - differs and maintains that the creditor has the right to collect the entire debt from either one without asking the other for payment.
In his Kessef Mishneh and Beit Yosef, Rav Yosef Karo objects to the Tur’s understanding, and in his Shulchan Aruch (Choshen Mishpat 77:1), he quotes the Rambam’s view.

The fact that they included their debts or sales in the same legal document indicates that they consider them dependent on each other.

When stating this Jaw, the Shulchan Aruch (Choshen Mishpat 77:2) quotes the Ramban, who states that the Rambam’s ruling applies only when the partner agrees that the Joan or purchase was made for the sake of the partnership, or witnesses testify that this is so. If, however, he denies that contention and the other partner cannot prove it, he is not liable.
The Tur and the Ramah state that even if the partner admits that the money was taken for the sake of the partnership, if there is no money in the coffers of the partnership, the partner cannot be forced to take individual responsibility for the debt.

I.e., we do not say that each one of them guaranteed only half the debt. Instead, each one is responsible for the entire amount.
The Ra’avad differs with this ruling and maintains that each of the guarantors is required to pay only half the debt. The Tur and the Shulchan Aruch (Choshen Mishpat 132:3) quote his opinion together with that of the Rambam. Even according to the Rambam, after the lender collects the entire debt from one guarantor, that guarantor can sue the other for half (Sefer Me’irat Einayim 77:11; Siftei Cohen 132:5).

From the same lender or from other lenders.

The Tur (Choshen Mishpat 132) states the same law slightly differently, saying: “When [the guarantor] pays the lender, he should notify him for which of the two he is paying.”

The Maggid Mishneh writes that this law is a product of deduction, but there is no explicit source for it in the Talmud.

This would be beneficial in a situation where the lender would not accept the person making the request of the colleague as a guarantor, but would accept the person of whom he makes this request.

The Maggid Mishneh states that this applies even when the second guarantor does not affirm his commitment with a kinyan. Just as the first guarantor becomes liable when the money is transferred because of his word; so, too, the second guarantor becomes liable when the commitment of the first guarantor takes effect.

The Rambam’s ruling echoes his decision in Hilchot Mechirah 11:16, where he states:
[The following rules apply when a person] accepts an obligation on himself that is unlimited in nature - e.g., he says: “I obligate myself to feed you...” or “... to clothe you for five years.” Even though he affirms his commitment to [the recipient] with a kinyan, he is not liable.
As mentioned in the notes on Hilchot Mechirah, the Rambam’s opinion is not accepted by all authorities. Here too, the Ra’avad takes issue with the Rambam and states that we accept the guarantor’s promise to the extent that we would ordinarily expect him to commit himself.
The Maggid Mishneh differs with the Ra’avad and maintains that a larger principle is involved: Can a person undertake an unlimited commitment or not? If he can, then he should be held liable for the entire amount. Moreover, the determination of the extent to which a person would ordinarily commit himself is a very sensitive issue and difficult to decide. Hence, he prefers the opinion of the Geonim mentioned by the Rambam.
Although the Shulchan Aruch (Choshen Mishpat 131:13) quotes the Rambam’s view, he states that all the authorities who followed him differed with his opinion and maintained that when a kinyan is made, the guarantor’s commitment is binding. The Shulchan Aruch maintains that these other views should be adhered to.

A person does not make empty statements. If he made such a commitment, his intent was to pay (Maggid Mishneh).

The Ra’avad differs with the Rambam, maintaining that since the guarantor made a firm commitment to pay if he did not bring the borrower to court, he is liable. The Maggid Mishneh quotes supports for both opinions and states that he does not see himself capable of deciding between the two approaches. The Rambam’s view is quoted by the Shulchan Aruch (Choshen Mishpat 131:12), while the Ramah cites the Ra’avad’s view.