Siman 129

A guarantor is obligated by the Torah, as it is written: "I will be a guarantor for him; from my hand you shall seek him," and it is written: "For your servant became a guarantor for the lad," and it is written: "My son, if you have become a guarantor for your friend, etc." And even though it is like an asmakhta, for he says, "If the borrower does not pay you, I will pay you," and any "if" is an asmakhta and does not effect a legal acquisition, nevertheless, through that benefit of being trusted by him, where the lender lends to the borrower based on his assurance, he fully resolves and obligates himself. For the primary reason that an asmakhta does not effect an acquisition is because we say that he did not truly consent in his heart to become obligated, but rather said mere words to support his fellow based on his words, as I wrote in siman 207. Therefore, since in this case he fully resolved in his heart to become obligated, he is liable to pay. And even if the borrower has no property, he becomes a guarantor when he enters into the guarantee. And since the primary reason the guarantor becomes obligated is because since the lender lends to the borrower based on his assurance, he fully resolves and obligates himself, therefore, if he became a guarantor after the loan and said to the lender, "I am a guarantor for him," or if the lender sued the borrower in beit din and he said to the lender, "Leave him be and I am a guarantor if he does not pay you by such-and-such a time," or if the lender was choking or distressing the borrower in the marketplace to give him his debt and he said to him, "Leave him be and I am a guarantor if he does not pay you by such-and-such a time," the guarantor is not liable for anything, because he did not lend to him based on the trust of the guarantor. And even if he said before a beit din, "I am a guarantor," for this is only like a mere asmakhta. Nevertheless, if they performed a kinyan from him that he is a guarantor for this money, whether before a beit din or witnesses, or whether between himself and the other, he becomes obligated, for witnesses were not created in monetary laws except so that they should not lie, but when the litigant admits, even without witnesses, their status is like witnesses. And when they performed a kinyan from him, certainly he fully resolved in his heart to be a guarantor. And this is not similar to all other asmakhtas where we require a kinyan in an important beit din, as I wrote in siman 207, for in truth the essence of guarantee is not an asmakhta at all, since the Torah obligated him through mere words; it is only that after the giving of the money we say that since he did not lend to him based on his trust, he did not fully resolve in his heart to be a guarantor. Therefore, when they performed a kinyan from him, certainly with a whole heart he became a guarantor [Shach and Taz]. But at the time of the giving of the money, if he said to him, "Lend to him and I am a guarantor," he becomes obligated and does not require a kinyan. And even in a place where he does not become a guarantor by the letter of the law, nevertheless, if he paid the lender according to the command of the borrower, who said to him, "Guarantee for me and pay on my behalf," and he paid, he is liable to pay him what he gave to the lender [see Urim VeTummim]. And it will be further explained in siman 130 with the help of Heaven.

And even though it has been explained that not at the time of the giving of the money one does not become an arev without a kinyan even in a beit din, nevertheless, sometimes one becomes an arev even in such a case. For example, if the beit din wanted to collect from the borrower and he said to them, "Leave him be and I am an arev for him," he becomes obligated; for through that benefit that the beit din believed him and left the borrower alone based on his word, he resolved in his heart to be an arev. And so too, sometimes even not in a beit din, he becomes obligated without a kinyan even not at the time of the giving of the money. For example, if the lender demanded from the borrower and he had a promissory note or a mashkon, and he said to the lender, "Return the note or the mashkon to the borrower and I am an arev," his law is like an arev at the time of the giving of the money. For since he returned the note or the mashkon based on his word, he certainly obligated himself with a complete heart, and he is not believed to say it was merely an asmachta. And sometimes even without this he becomes a complete arev, such as if the lender released the borrower based on his word, where the arev said to the lender not at the time of the giving of the money, "I am an arev to you," and the lender said to him, "From now on I shall have no business with the borrower but only with you," and he agreed to this, his law is like an arev at the time of the giving of the money; for if he had not resolved in his heart to be an arev, he would not have agreed that the lender should release the borrower entirely. And sometimes even without this he becomes a complete arev and not at the time of the giving of the money, such as if the money of the borrower was in the hand of the arev at the time he became an arev for him, he becomes obligated in any case, and certainly not as an asmachta; since he has his money in his hand and has no loss in this, why should he not be obligated? For even without his guarantee, the lender has against him the shiubuda de-Rabbi Nathan. And there are those who disagree on this and hold that there is no difference whether his money was in his hand or not, unless those very coins that the lender lent him were in the hand of the arev, for then he becomes obligated even not at the time of the giving of the money with a mere statement [Shach]. And some say that even in such a case he does not become obligated, for a loan is given for spending, unless the borrower had no assets at all at the time he became an arev for him, for then he is obligated to him even without this from the shiubuda de-Rabbi Nathan, and since he said to him "I am an arev," he becomes a complete arev even if afterwards the borrower had assets [Urim Ve-Tummim]. But if at the time of his guarantee the borrower had other assets, for in such a case the lien from the shiubuda de-Rabbi Nathan is not a complete lien as was written in siman 86, also his guarantee with a mere statement not at the time of the giving of the money is nothing.

At the time of the loan, even if he did not explicitly become a guarantor for him—such that he did not say to him, "Lend to him and I am a guarantor," but rather said to the lender, "Lend to so-and-so for he is trustworthy," and he lent to him based on his word, and afterwards it became known that he was not trustworthy at the time of the loan—he is liable to pay him, for this is like a guarantee since he lent to him based on his word, and you have no greater garmi than this. However, if at the time of the loan the borrower was a trustworthy man and afterwards his situation deteriorated, he is exempt, since he did not mislead him, and this phrasing is not a phrasing of guarantee such that he would be liable to pay him when the borrower has nothing, but rather he only said that he is trustworthy, and in truth he was then trustworthy and did not sin in his speech at all. And there are those who say that even when he was not trustworthy, he is not liable to pay unless the lender said to him, "See that I am relying upon you" [Shach]. And there is one of the great authorities who ruled according to the first opinion [Urim VeTumim]. And it appears to me to decide that if the lender asked him if so-and-so, who is requesting a loan from him, is trustworthy, and he answered him, "He is trustworthy," if the lender did not say to him, "See that I am relying upon you," it is impossible to obligate him, for such is the way of the world, and it is possible that in truth he thought that he was trustworthy and did not investigate him thoroughly. But if he came to the lender and said to him, "Lend to so-and-so for he is a trustworthy man," certainly he investigated well, and he is liable if he was not trustworthy then, even when he did not say to him, "See that I am relying upon you." And a proof for this is from what will be explained in section 13, see there. And so the opinion of our teacher, the Rema, in section 2 seems to me [and what the Shach questioned him from siman 306 is settled]. And in a case where he is liable to pay, even if it became known that in truth he did not know of his situation, nevertheless he is liable, for this itself is like one who causes damage, for when he did not know with certainty, why did he command his fellow to lend to him [Acharonim]. And he is not exempt except when a cause came about such that the borrower declined from his status after the loan.

There is no distinction in ערבות whether it was a loan with a שטר or whether it was a loan by word of mouth, for at the time of the giving of the money, he becomes obligated through mere speech, and after the giving of the money, he requires a קניין. And in any place where a קניין is required, if they did not perform a קניין with him, he does not become obligated and one does not collect from the ערב even from free assets, and even if he wrote him a שטר, for a שטר of ערבות is of no use at all unless the ערבות is written in the שטר of the borrower, as will be explained. And if he became a ערב for him with a קניין and wrote him a שטר on its own, or at the time of the giving of the money where a קניין is not required and he wrote him a שטר on its own, it has the law of a loan with a שטר to seize from purchasers, and even if the loan was by word of mouth, since he obligated himself in a שטר [it appears to me]. And if he did not write him a שטר, even though he became a ערב with a קניין, his law is like a loan by word of mouth and he only collects from free assets. And even though an unspecified קניין is stands to be written, as written in סימן 39, nevertheless, regarding ערבות where the obligation is not from himself, as long as it was not written, this does not have a rumor [Beit Yosef]. And therefore, even if the קניין was at the time of the giving of the money, he does not collect from encumbered assets [it appears to me]. And some say that with a קניין he seizes from encumbered assets even without the writing of a שטר, and his law is like the borrower himself, for ערבות also has a rumor. And regarding a ערב in בית דין, even according to the first opinion, he collects from encumbered assets even without a שטר and without a קניין when it has the law of ערבות [Sma], according to what has been explained, that an admission in בית דין is like a שטר because in בית דין the rumor goes out, and it was for the purchasers to be careful from buying from him.

If the guarantor did not make a separate document for himself, but rather wrote the guarantee in the document of the borrower: if the guarantee was written before the sealing of the document—meaning before the signatures of the witnesses—it does not require a kinyan, for regarding the guarantee, he has entered himself into the document like the borrower himself. And if after the signatures of the witnesses he wrote "and I am a guarantor," and it is recognizable that this is his handwriting, or witnesses testify to his handwriting, some say it does not require a kinyan, for this is similar to one who obligated himself in a document, as was explained in siman 40. And some say he does not become enslaved except through a kinyan, since he is enslaving himself for his fellow. And according to the Rambam, whether it is a separate document or whether he signed in the document of the borrower, and even if he signed before the sealing of the document, he does not become enslaved except through a kinyan for this reason, as it is like a mere asmakhta. And all this is when he entered into the guarantee after the giving of the money at the time of the writing of the document; but at the time of the giving of the money, it has already been explained that he becomes enslaved through mere speech. And regarding the collection from encumbered properties: if it was written after the sealing of the document, he certainly only collects from free assets. And if it was written before the sealing of the document, if it is written "Ploni is a guarantor" without a "vav," and afterwards the witnesses signed, this too only collects from free assets, because this is like the beginning of a new matter and is not mixed with the preceding. And even if they performed a kinyan from his hand, it is not effective to collect from him from encumbered properties. And even according to the "some say" in the previous section that through a kinyan alone one collects from encumbered properties, nevertheless, when it is written in the document without the conjunctive "vav," it is worse, for it is like a disclosure of intent that he did not enslave himself completely like the borrower himself [Sma]. And some say that with a kinyan he collects from encumbered properties according to this opinion [Shach]. But after the sealing of the document, even though it requires a kinyan, nevertheless he does not collect from encumbered properties even according to this opinion; since he wrote the guarantee after the signature of the witnesses, it is worse [Taz]. And if he wrote before the signatures of the witnesses "and Ploni is a guarantor" with a "vav," he collects from the guarantor from encumbered properties, for behold, he is mixed with the borrower and the lender. And even with a guarantor at the time of the giving of the money, if he wrote without a "vav," he does not collect from encumbered properties [Shach]. And it appears that if he wrote after the signatures of the witnesses and those same witnesses themselves signed on the guarantee, it is like before the sealing of the document. And nevertheless, there is room to doubt if he collects from encumbered properties in such a case even when it is written "and Ploni is a guarantor," since he did not fully participate before the signatures of the witnesses on the document, and perhaps this is like a disclosure of intent that he should not collect from encumbered properties. But a kinyan is certainly not required even after the giving of the money [it appears to me].

It has already been explained that in a place where a kinyan is required, it is not effective without a kinyan even if he wrote him a separate shetar. And likewise, it is not effective even if he also gave him a tekiat kaf, except in a place where they are accustomed to acquire through this, as I wrote in siman 201. And even an oath is not effective. Nevertheless, they compel him to fulfill his oath or his tekiat kaf, for its law is like an oath. And the practical difference is that if he dies, they do not collect from his heirs, which is not the case when he becomes obligated through the law of arevut. And likewise, when he is obligated by virtue of the oath, beit din does not descend to his properties; rather, they curse him to fulfill his oath [Sma]. And also, if he requested an annulment for his oath and they permitted it for him, it is effective post facto according to the opinion of Rabbeinu Tam, which is not the case if the lien is through the law of arevut [ibid.]. And nevertheless, when he swore or gave a tekiat kaf to be an arev, and he paid the creditor, the arev collects from the borrower, not like the one who disagrees on this [ibid.].

Our teacher, the Rema, wrote: One who says to his fellow, "I am a guarantor for you for one day," it is nothing. Thus far his words. And there is one who explained, for example, that he lent to him for thirty days and the guarantor said to him, "If you claim from him on such-and-such a day and he does not pay you, I am a guarantor for him," but if he does not claim from him on this day but on other days the guarantee is removed—it is nothing even for this day, for if the guarantor is not obligated like the borrower himself, this is not a guarantee [Levush]. And some say that in this case he certainly has the law of a guarantor for the day that he established; rather, this is the explanation: that they heard from him these words, that he said plainly, "I am a guarantor for you for one day," and it is not known clearly regarding what the guarantee was, perhaps his intention was to go on the mission of the borrower for one day or some other matter. But if he said explicitly, "Behold, I am a guarantor for you for such-and-such a day, if you claim from him and he does not pay you," he becomes a guarantor for this day [Bach and Shach and Taz and as is implied from Sma]. And if it was at the time of the giving of the money, it does not require a kinyan, and after the giving of the money, it requires a kinyan [Shach]. And some say further that if the lender pressed the borrower to pay him and this guarantor came and said to the lender, "Leave him this day and do not claim from him, and for this I am a guarantor to you for his debt," if they performed a kinyan from his hand, he becomes obligated [Urim VeTummim]. And for the halacha, it appears like these two opinions and not like the first opinion, for they are many and the reasoning inclines toward this. Therefore, it appears to me that even if he said plainly, "Behold, I am a guarantor for one day," if according to the matter it appears clear that his intention was for the guarantee of the loan, if he designated some day, he becomes a guarantor for this day, and all the more so when he admits that such was his intention.

If Reuven said, "Anyone who lends to Shimon, I am a guarantor," or "I will pay," or if he wrote this in his handwriting, he becomes a guarantor and is obligated to pay [Urim VeTumim and Netivot HaMishpat]. And there are those who disagree regarding this [Shach and Ketzot HaChoshen], for a guarantee is like an agency, and he must say to the lender—who is like his agent—"Lend to so-and-so and I am a guarantor." Furthermore, when it is not at the time of the delivery of the money and they performed a kinyan from him, the lender is like his agent to exempt the borrower [the difficulty of the Netivot HaMishpat is resolved]. And regarding agency, one must specify and say, "So-and-so shall be my agent." If he said, "Anyone who lends to so-and-so," he loses nothing; even according to the first opinion, it is nothing. And even though regarding a get, when he said, "Anyone who hears his voice shall write a get for his wife," we consider it like an agency [Tosafot Gittin 66a], nevertheless, regarding a guarantee, which is like an asmachta, we do not consider this language to be an agency, just as we do not consider this language to be an agency regarding one who is forbidden by a vow from deriving benefit, even in a matter that requires agency [ibid.]. A guarantee in writing to a specific man, where he wrote to him, "Lend to so-and-so such-and-such an amount and I am a guarantor," certainly has the status of a complete guarantor, for there is no difference between speech and writing.

A guarantor is only for the first time, such as one who becomes a guarantor for Reuven: if he did not pay the lender, he is obligated to pay. However, if he paid him and afterwards borrowed this sum from him once more, his guarantee is removed, unless the guarantor explicitly stipulated so—that even when he pays you and borrows from you again—for then he becomes a guarantor also for the second time, and no more. And if he said, "I am a guarantor forever for so-and-so for such an amount," he becomes a guarantor forever [it appears to me]. And if he said, "I am a guarantor for Reuven for such and such an amount to be cleared after a year," and Reuven paid within the year and went back and borrowed from this lender, nevertheless the guarantor does not become obligated, for despite this, he only guaranteed that which he would borrow the first time [it appears to me].

Arvut applies to all monetary matters, whether a loan, a borrowing, a rental, or a deposit; the law of arvut of the body will be explained in siman 131. Regarding arvut for a gift—for example, one who gave a gift to his fellow and obligated himself through a kinyan to give it to him after a period of time and provided a guarantor for him—some say that it is like a guarantor at the time of the handing over of the money and does not require a kinyan, for the time of the acquisition of the gift is like the time of the handing over of the money. Others disagree, for specifically regarding arvut for a loan or the like do we say that through that benefit that he trusts him, he resolves and subjects himself, but the recipient of a gift did not trust him with anything, and what was there for him to do [Levush]? Therefore, with a kinyan, he certainly becomes a guarantor [Shach]. If one gave money for half-profit and the giver provided a guarantor to the recipient for the half of the profit that is due to him for his labor, it is like a guarantor at the time of the handing over of the money; for even though the profit is not yet in existence, nevertheless, his labor is like a rental, as if he hired him for such-and-such an amount to engage in some business. However, the recipient is forbidden from providing a guarantor to the giver for his portion, as it is like ribbit, and this is also like a guarantor not at the time of the handing over of the money [ibid.]. If one was a guarantor for a gentile for ribbit, it is like a guarantor not at the time of the handing over of the money [Netivot HaMishpat] and requires a kinyan. There is no difference in arvut between money, movable property, lands, slaves, or documents, for in all of them the law of arvut applies; for even regarding land, arvut is applicable, where he hands over the land to him to use for such-and-such years, and if he damages it, the guarantor will pay him such-and-such. Arvut for documents is simple: where Reuven says to Shimon, "Give your document that is in your hand to Levi, and I am a guarantor to you that if he does not return it to you by such-and-such a time, I will pay such-and-such." Regarding arvut where the other party has no benefit at all—for example, where he said to someone, "Throw your money into the sea" or "meat to the dogs, and I am a guarantor to you"—there is a dispute among the poskim [see the first chapter of Kiddushin 8b in the Rosh and in the Ran].

There are three types of guarantors: a standard arev, an arev kablan, and one who takes and gives by hand from the lender to the borrower; and there are differences in their laws, as will be explained. Just as the arev does not become obligated except through a kinyan, or at the time of the giving of the money, or in a beit din, so too the kablan does not become obligated except through one of these ways. There is no difference between them except regarding the obligation of a ketubah or a dowry for a groom, as was written in Even HaEzer siman 102. And thus our sages, of blessed memory, said: an arev for a ketubah does not become obligated; what is the reason? He performed a mitzvah and did not cause him any loss. And that which they establish guarantees in conditions regarding the penalty for whoever retracts, and they adjudicate this with the law of an arev, this is because of the shame and not because of the dowry [Sma]. And one who takes and gives by hand is only relevant at the time of the giving of the money, and there is no practical difference whether it was between himself and the other, or before witnesses, or in a beit din.

Who is a guarantor and who is a kablan? If he said to him, "Give to him and I will give to you," this is a kablan. And if it is after the giving of the money, he must say, "What you gave to this person, I will give to you," and when they performed a kinyan with him, as has been explained. But if he said to him, "Lend to him and I am a guarantor," "Lend to him and I will pay," "Lend to him and I am obligated," and even if he said, "Lend to him and I will give," "Lend to him and I am a kablan," "Give to him and I am a guarantor," "Give to him and I will pay," "Give to him and I am obligated to give to you," all of these are the language of guarantee. The general rule of the matter: when he mentioned either the language of lending regarding the borrower or the language of payment and obligation regarding himself, this is an ordinary guarantor, for the intention is that when the borrower does not pay, he will pay. But when he mentioned the language of giving regarding both of them, it is as if he gave it to the borrower as his agent, and as if he received it from the hand of the lender and gave it to the borrower. And in any language the law is so: when he mentioned neither the language of lending nor the language of payment, but rather the language of giving, he is a kablan [Sma and Shach]. And some say that even if he said, "Give to him and I am a kablan," since he did not say "and I will give to you" in the same language that he said to give to the borrower, it is also nothing but a guarantee. However, there are those who disagree on this, for the language of "kablan" is like the language of giving, and our teacher, the Rema, ruled accordingly. And a deed in which it is written, "So-and-so is a kablan," even though the language he spoke was not written in it, nevertheless he is a kablan, for presumably he spoke in an effective language. And although there are those who disagree on this, nevertheless this is the primary ruling, and so wrote our teacher, the Rema. And if the kablan took the money from the hand of the lender and gave it into the hand of the borrower, the lender has nothing against the borrower, for the general rule is that anyone who transacted by hand, the lender has no business with the borrower and cannot claim from anyone but the kablan. And if the kablan has nothing, he collects from the borrower by the rule of Rabbi Natan. And if the kablan forgave the borrower, he cannot collect from the borrower at all; but there are those who disagree on this and hold that the kablan cannot forgive the borrower, for in a place where it causes loss to others, forgiveness is not effective, and so is the primary ruling [Shach]. And regarding this law of one who transacted by hand, some say that the same applies to a guarantor alone; also, if he transacted by hand, he shall collect first from the guarantor. And all this is when he transacted without specification, but if he took from the lender and gave to the borrower as an agent of the lender or as an agent of the borrower—such as if the lender said to him, "Take from me and give into his hand," or if the borrower told him that the lender sent him to take from him and give to him—he is only a kablan or a guarantor according to what he accepted upon himself. And similarly, if he was a guarantor for Reuven who bought merchandise on credit from Shimon, if Reuven bought the merchandise with a kinyan sudar in a manner that according to the law the merchandise is considered his, then even if the guarantor received it without specification from the hand of Shimon and gave it to Reuven, he has only the law of a guarantor, since he bought the merchandise prior to this [Netivot HaMishpat].

Some say that all the laws of guarantee and kablanut apply only when the borrower requested of the lender that he lend to him, and the guarantor entered into discussion with the lender using the language of guarantee or kablanut. However, if the borrower did not speak with the lender regarding this, but rather Reuven said to Shimon, "Lend Levi a sum of such and such an amount and I am a guarantor," or "and I will pay," or "and I will give to you," or "and I am indebted to you," Shimon has no claim against Levi at all, even if he gave them to him from his hand; rather, his claim is against Reuven who told him to lend to him, for he gave them to him as the agent of Reuven. Only if the guarantor does not have the means does the lender collect from the borrower by way of the rule of Rabbi Nathan [Sma]. And regarding the guarantee of Yehuda for Binyamin, Yaakov began to speak with him that he should go to Egypt to buy grain, and Yehuda entered into discussion with him afterwards and became a guarantor for Binyamin.

Thus the Sages, of blessed memory, said: One who lends to his fellow by means of an arev, even though the arev is subordinated to the lender, nevertheless he shall not first claim from the arev but rather from the borrower. And even if the borrower only has ziborit, he shall not collect from the arev. And even if the borrower has no known property such as lands, and the arev has, he shall not collect from the arev; rather, he must seek out the borrower, for perhaps he has movables. And a judge who erred and granted the lender possession of the property of the arev before he claimed from the borrower is removed from his judgeship [Bava Batra 174a]. And if the borrower has no property here, neither land nor movables, even if he has known property in another place far from here, he collects from the arev first, for we do not tell the lender to incur many expenses to collect his debt. And this matter depends on the assessment of the beit din according to the distance and according to the matter.

And if the borrower is not before us, if he has known properties here, we descend to the properties of the borrower even not in his presence if he is further away than thirty days, and for the time being we do not collect from the ערב [Sma]. And if he does not have known properties here, if he is in a nearby place such that a messenger can go and return within thirty days, he must be notified, and the lender must trouble himself with this [Shach]. And if he does not pay then, he shall claim from the ערב. And if it is not known to us where he is, we give the ערב a period of thirty days to search for him, and if it is known that he is further away than thirty days, we do not give him more time [ibid.]. And some say that if the ערב claimed, "Give me time and I will bring the borrower to beit din," if we know where he is, we give him time until he brings him, even more than thirty days; and if it is not known, we give him a period of thirty days and no more. And if the lender or the ערב brought the borrower to beit din, the ערב is exempt until the borrower swears that he has nothing. And if he fled from beit din and did not pay and did not swear, he cannot collect from the ערב until he apprehends him and makes him swear [Sma]. And if they brought the borrower on Erev Shabbat and on Motzaei Shabbat he fled, the ערב is not exempt, for since at that time he could not litigate with him, it is as if he did not bring him, and it is incumbent upon the ערב to return and bring him to beit din [ibid.] if he so desires.

And if the borrower is in a distant place where it is impossible to notify him and he has no assets here, or if the borrower is a violent man who does not obey the law, then he shall claim from the ערב and collect from him, and afterwards the ערב shall return to the borrower and extract from him what he paid on his behalf, and shall coerce him with all types of coercion until he pays him, and the lender does not need to trouble himself with this. And so it appears primary, even though there are those who disagree and hold that even though the borrower is violent and does not obey the law, one does not collect from the ערב until the beit din coerces the borrower to obey the law; the halacha is not so, for it was upon this condition that he became a ערב. And some say that if the borrower was violent even at the time of the loan, he may not collect from the ערב until they coerce him to obey the law, for it was upon this condition that he lent to him. And there are those who disagree on this, for in truth he lent to him based on the reliance of the ערב and not based on the reliance of the borrower. And the first opinion holds that if his primary reliance was on the ערב, he should not have accepted him as a simple ערב but rather as an ערב קבלן [Sma]. However, even according to this opinion, if the beit din applied coercion and the violent man persists in his violence, or if he is close to a powerful person and there is a concern that a mishap will result from this, certainly one collects from the ערב [Shach], and all the more so if the beit din does not have the power to coerce him, that one collects from the ערב.

That which we have said, that when the borrower is in a distant place where it is impossible to notify him, one may collect from the guarantor without notifying the borrower, this is specifically when the loan is with a shtar, for the shtar proves that he did not pay it, and we are not concerned that perhaps there is a receipt in the hand of the borrower. However, if it is a loan by word of mouth, he may never collect from the guarantor without notifying the borrower, because we are concerned that perhaps he paid him, and the guarantor is exempt even from an oath; he can only impose a kabbalah upon him if he does not know that he did not pay him [Sma]. And if the lender claims that the guarantor knows for a certainty that he did not pay him, he may administer an oath to him [it appears to me]. And if it is within the time period, he collects from the guarantor, for a person is not likely to pay within the time period. And the same law applies if the borrower died: he may not collect from the guarantor in a loan by word of mouth unless it is within the time period, or he admitted at the time of his death, or they excommunicated him during his life because he did not pay this debt and he died in his excommunication. But in a loan with a shtar, they collect from the guarantor, and he shall seek out the orphans if he left assets; and when there are known assets, lands or movables, and he died, they collect from them.

If the lender sought out the borrower and found nothing, and the borrower is before us and he needs to collect from the guarantor, the borrower must swear according to the enactment of the Geonim that was explained in siman 99, and he shall swear that he has nothing. And if it is a loan by word of mouth and the time has passed, he must include in his oath that he still owes him this debt, so that they do not make a conspiracy against the property of the guarantor; and as long as he has not sworn, they do not collect from the guarantor. But in a loan by deed, where the borrower is not believed with an oath that he paid it, he shall only swear that he has no property, neither unencumbered nor encumbered, and the lender shall swear that he has not been paid by him, just as when one comes to seize from purchasers, as written in siman 114 [Sma]. And some say that regarding a guarantor in a loan by deed, the lender does not need to swear [Urim VeTummim]. And he cannot be paid from the guarantor until after thirty days from the day the guarantor became obligated to pay, even if the guarantor has money or movable property ready [Shach], so that the power of the guarantor should not be inferior to the power of the borrower; for if he had lent to him now, surely an unspecified loan is thirty days, and the guarantor surely became obligated to him now [ibid.], unless there was some condition between the lender and the guarantor, for then they act according to the condition, as any condition in monetary matters is valid.

If the borrower said, "I have paid the lender," if it is a debt with a document, he is not believed and the lender shall swear. If it is an oral debt, the borrower swears a shevuat hesset and he and the guarantor are exempt, if it is after its due date. But within its due date, he is not believed. And even if the borrower is a gentile and says that he paid him, and it is after its due date, the guarantor is exempt. If he was an arev kabbelan, he is not exempt, as will be explained. But if the borrower said, "I never borrowed," and the guarantor knows that he borrowed, the guarantor is obligated to pay, for anyone who says "I did not borrow" is like one who says "I did not pay." And if the borrower is a gentile and he lent to him without witnesses and he denies it and says "I did not borrow," there are those who are in doubt that the guarantor need not pay, for why did he lend to him without witnesses such that it would be in his power to deny it? And that which we said, that the borrower is believed to say "I have paid," this is specifically when the lender did not make a condition with the guarantor; but if he made a condition with him that he shall be believed to say that he did not pay him, everything is according to the condition [see Urim VeTummim].

If the borrower claimed that he gave the payment funds to the guarantor so that he would give them to the lender, the borrower swears a shevuat hesset and is exempt; through a migo that he could have said "I paid you," he is also believed to say that he paid the guarantor, and he and the guarantor are exempt in a loan by word of mouth, for the lender trusted the guarantor since he accepted him as a guarantor. Therefore, if he truly gave it to him, he is exempt, and the guarantor shall swear that he did not receive it from him [it appears to me]. And if the lender denies his guarantee and says that he did not establish him as a guarantor at all, and "you are not exempt by your payment to him that he should give to me," the borrower swears that he established him as a guarantor and that he paid him, and he is exempt through this. And there are those who disagree with all of this and hold that the borrower is not exempt at all by his giving to the guarantor, for the lender can say to him: "The guarantor is not my litigant that I should sue him, and why did you pay him? And if you paid him, take it back from him and pay me" [Levush, Taz, and Shach]. And if it was an arev kabbelan, even according to this opinion he has the ability to pay the guarantor [Urim VeTummim]. Therefore, when he claims thus in a loan by word of mouth, both of them swear and the lender loses.

One who borrowed an object from his fellow and said to him, "If I do not return it to you by such and such a time, I will give you such and such an amount of money," and he established a guarantor for the money—even though regarding the borrower it is an asmachta and he is exempt, nevertheless the guarantor is obligated to pay [see siman 130, section 8]. For there is no law of asmachta regarding a guarantee, because every guarantee is like an asmachta, and even so the Torah obligated him; if so, there is no difference if another matter of asmachta was also added. And although one does not collect from the guarantor until he first claims from the borrower, this is in a case where he can claim from the borrower; but here, where the borrower is exempt, the guarantor is obligated [Sma]. And there are those who disagree on this and hold that the fact that the law of asmachta does not apply to a guarantor is regarding the essence of the guarantee, but if in the essence of the act there is an asmachta, the guarantor is not liened. Therefore, the guarantor does not become obligated in an asmachta except through a kinyan in a prominent beit din, as will be explained in the laws of asmachta in siman 207 [Bach and Shach]. And in this case, even though the borrower did not acquire and is not obligated, nevertheless the guarantor is obligated [Netivot HaMishpat]; or when they did not stipulate with the guarantor "if he does not return by such and such a time," and this matter was spoken between the borrower and the lender between themselves, and the guarantor became liened without specification for such and such an amount of money to pay at such and such a time if the borrower does not pay [Taz]. And the borrower trusted the lender that when he returns the object to him, he will not claim from the guarantor. And it will be further explained in siman 131.

This fact that one does not collect from the guarantor first applies specifically to an ordinary guarantor, but with an arev kabbelan, one collects from him first if he wishes, even if the borrower has property. This is unless the borrower desires of his own accord to pay him, for then, even if the borrower has ziborit and the lender wishes to collect benonit from the kabbelan according to his right, he can push him away to the ziborit [Sma]. For granted that the lender's power is great to collect from whomever he wishes, this is when he must collect by compulsion; but when the borrower pays him of his own will, the property of the kabbelan is no worse than meshubadim, from which one does not collect in a place where there is benei chorin, even ziborit. But in a case of "took and gave by hand," he certainly collects benonit from the guarantor. And so too if the guarantor initiated with the lender, as I wrote in section 13, he also collects from the benonit of the guarantor [it appears to me]. And so too regarding a kabbelan, the borrower is not believed to say "I paid" even in a loan by word of mouth, unlike an ordinary guarantor who is believed, as I wrote in section 19; for with an arev kabbelan, the lender did not grant the borrower any trustworthiness at all. Therefore, the lender swears that he was not paid by the borrower and takes from the kabbelan, and the borrower swears to the kabbelan that he paid the lender, and the kabbelan suffers the loss. If it were the will of the kabbelan that the borrower be believed to say "I paid," he should have stipulated so with the lender. And there are those who disagree and hold that in this, the law of the kabbelan is equal to an ordinary guarantor, except in a case of "took and gave by hand," for then he has nothing against the borrower. And such is the primary ruling, for so the great later authorities agreed. And even according to the first opinion, if it is a loan with a shetar and the lender comes to collect from the kabbelan and his shetar is not in his hand, and he claimed that it was lost, and even if the borrower admits that he did not pay him, but the kabbelan claims perhaps the borrower paid and tore the shetar chov and they made a conspiracy between them to collect from me—there is one who says that the law is with the kabbelan, since there is a flaw before us in that the shetar chov is not in his hand. And all the more so if the borrower also says that he paid him, the arev kabbelan is exempt. And it appears to me that even in a case of "took and gave by hand," if the shetar chov is not in the hand of the lender and the borrower claims that he paid him, he is exempt, since there is such a great flaw. But if the borrower says that he did not pay him, the lender swears with a sacred object and takes. And so too when the guarantor initiated with the lender in section 13, his law is such.

And so, even with an ordinary guarantor, if the lender stipulated with the guarantor, "I shall collect from whomever I wish," he may collect from the guarantor first even if the borrower has assets. And there are those who disagree on this and hold that this phrasing is only effective when the borrower does not have known assets, such that he does not need to trouble himself and search for his movable property; however, when he has known assets such as land, he cannot collect from the guarantor [Netivot HaMishpat], and even if they are of inferior quality [it appears to me]. And even according to this opinion, if he said explicitly, "I shall collect from whomever I wish first," he may claim from the guarantor first even when the borrower has known assets, and although there are those who disagree even on this, the halacha is not like them.

It has already been explained that regarding an arev kablan, the lender collects from whomsoever he wishes. And even if the borrower sold all his properties and the kablan has unencumbered properties, nevertheless, if the lender wishes to seize from the purchasers of the borrower, they cannot push him away toward the unencumbered properties of the kablan, because his lien applies to them. However, in a case of "took and gave by hand," he cannot collect from the purchasers of the borrower, for even from the borrower himself he only collects when the arev has nothing, as has been written; and it is obvious that regarding his purchasers the law is so. However, if the arev has no properties, he collects from them as well, just as from the borrower himself. And similarly, two who became arevim for one person, as will be explained in siman 132, that he may collect from whomsoever he wishes, he collects from the purchasers of one of them just as from themselves. And according to the second opinion that will be explained there, that he collects from each one his portion, nevertheless, if they became responsible and arevim for one another as an arev kablan, he collects from the purchasers of one of them even when the second has unencumbered properties.

When the lender collects from the guarantor or from the kablan and comes to collect from the borrower and did not find for him unencumbered property, and he must collect from encumbered property when it is a debt with a document, he does not seize from the encumbered property of the borrower until the lender hands over the document to him and transfers it to him via the method of acquisition for documents with writing and handing over, so that it should not be an oral claim since the borrower did not become indebted to the guarantor via the document. And more will be explained regarding this in siman 130 with the help of Heaven.

Our teacher, the Rema, wrote in section 8: If the debtor sold land and the creditor himself signed as a witness, the guarantor is exempt, for he caused his own loss. However, regarding a kablan in such a case, the guarantor is obligated to pay. Thus far his words. For regarding a kablan, even if he had not sold it, the creditor would have been able to collect from the kablan. Great Acharonim disagreed with him and hold that by the fact that he signed himself as a witness, he did not lose his lien, for he is able to collect from the purchaser, as written in siman 111. Only if the creditor signed himself that he agrees to the sale and removed his lien from this field, and the debtor has no other properties, in this case the creditor certainly caused his own loss and does not collect from the guarantor. And it appears to me that the words of our teacher, the Rema, refer to an oral loan where he does not collect from purchasers; the guarantor can say to him: "Why did you sign as a witness? By this you caused your own loss, and perhaps if you had not signed, he would not have been able to sell it and you would have collected it from the debtor himself." He further wrote that one who vowed payment to his fellow to be a guarantor for him, if he performed a kinyan to give him payment, he is obligated according to what he fixed. But if he did not perform a kinyan, he does not need to give him payment through a mere statement. Thus far his words. For guarantee is not something for which people take payment such that we would say it is acquired by a statement without an act; for by what would he be obligated to him if not by a kinyan? And he can say, "I was mocking you" regarding what I vowed to you as payment for nothing [Levush]. And there are some of the great authorities who say that he does not need to give all the payment he fixed for him, but the payment appropriate to take for such a guarantee he certainly must pay him [Urim VeTumim and Netivot HaMishpat]. And regarding more than what is appropriate, there is one who says that even with a kinyan it is not effective, and it is a legal doubt [Urim VeTumim]. And if he gave him more than what is appropriate, even by a mere statement, he cannot extract it from his hand, as is written regarding a similar case in siman 264.