Siman 130

A guarantor or a kablan who paid the creditor in the presence of witnesses, or if the creditor wrote for him "I have received from you," or if the debtor himself admits that he paid him and he claims it from the debtor, and the debtor claims that he already paid the creditor himself: if the guarantor paid before it was known if the debtor paid him, he owes the guarantor nothing, for without the authorization of the debtor he should not have paid, as the debtor is believed to say "I paid" regarding an oral loan, as written in siman 129. And even regarding a kablan the law is so according to "there are those who disagree" in section 22 there, and he caused his own loss, and he only has an oath against the debtor that he paid him. And even though he only has a claim of "perhaps" against the debtor, nevertheless it is no worse than the creditor, for when the debtor claims "I paid" he must swear. And this is only regarding an oral loan, but regarding a loan with a shtar and the guarantor received the shtar from the hand of the creditor, the debtor is obligated to pay him. And even if there is a receipt in the hand of the debtor, nevertheless what was the guarantor to do, for with a shtar he was forced to pay the creditor as written there in section 17 [Sma, Taz, and Urim VeTumim]. And so too regarding an oral loan, if he paid him after the creditor brought proof that the debtor did not pay him and the guarantor became obligated by law, the debtor must pay him everything he paid on his behalf, and he is not believed to say that he paid him previously. And if the debtor claims "I paid the creditor after you paid because you did not inform me that you paid with witnesses," if it was an oral loan his claim is a valid claim [Shach], for he caused his own loss by not informing the debtor that he paid on his behalf, unless he was unable to inform the debtor, in which case he is liable [Netivot HaMishpat]. And there are those who say that even if he did not inform the debtor, the debtor is obligated to pay him, for since the creditor brought proof that the debtor did not pay him and the guarantor became obligated by law, he is considered like the agent of the debtor to pay the creditor, and it was incumbent upon the debtor to investigate if he paid on his behalf, for "the borrower is a slave to the lender," and so too the guarantor [Sma and Urim VeTumim]. And regarding a loan with a shtar, the debtor is always obligated to pay him even when there is a receipt in his hand as written [Taz], unlike the one who disagrees in this. And it appears that regarding the creditor, both of them administer a shevuat hesat when they claim that they paid him.

If the borrower admits that he did not pay, but he does not believe the guarantor that he paid on his behalf, the guarantor must bring proof via witnesses or the handwriting of the lender, for the guarantor does not collect from the borrower until he brings witnesses that he paid for him. But as long as he has no witnesses, he collects nothing from him, even if the document is in his hand, because he can say: "I paid the lender and he returned it to me and it fell from me and you found it," or "You have not yet paid the lender and it fell from him and you found it," or "He deposited it in your hand." Or he can say: "I paid you," for the promissory note in his hand is not proof to make him a creditor by document [Tur], as only regarding the lender himself is the document absolute proof, and not regarding the guarantor, since there is no lien in the document to the guarantor. And if the lender wrote to the guarantor, "I received from you the money of the debt," and the document is in his hand, or if it is a loan by oral agreement, it is effective for him to collect from the borrower even when there are no witnesses that he paid him. And this is specifically when the guarantee is explicit in the document or the borrower admits, for if not so, by what do we know that he is a guarantor? And his status would be like one who pays the debt of his fellow without his knowledge. And the borrower is not believed to say that he paid the guarantor afterwards when the document is in his hand and he wrote for him "I have received," just as he is not believed against the lender [Sma, Taz, and Urim VeTumim]. And some say that this is specifically when he transferred the document to him via writing and delivery, for then the borrower is not believed against the guarantor to say "I paid," but with "I have received" alone, he is believed to say "I paid" as in a loan by oral agreement [Levush and Shach]. And so too, when there are witnesses that he paid the lender and the document is in his hand, even if the lender did not write for him "I have received," he is not believed to say "I paid the guarantor," and he has the power of the lender [Sma and Shach]. And some say that without the writing of "I have received," there is no proof from the document, and he can claim to the guarantor "I paid you" [Taz and Urim VeTumim]. And in a loan by oral agreement, even though the borrower admits that the guarantor paid the lender and he is obligated to pay him, nevertheless he can say "I paid you," for he is no better than the lender himself, and he shall swear a hesset oath and be exempt. And in a document, when he transferred it to him via writing and delivery, even though he did not write for him "I have received" and there are no witnesses that he paid him, he has all the power of the lender and is obligated to pay him, and he is not believed to say "I paid you," for the guarantor is no worse than another as written in siman 66, and also a waiver is not effective. And in this, the power of the guarantor is greater than another, since he was a guarantor for him [it appears to me].

When he wrote to him, "I have received from you the money of the debt," there is one who says that it is like a loan by document to seize even from purchasers who bought from the borrower. And even if he wrote "I have received" to him after he paid him, we do not say that since he paid him, the lien of the document was forgiven and the writing of "I have received" would no longer be effective against the purchasers; for behold, the guarantor stands in the place of the lender when he paid him, and immediately after the payment he enters into his place, and he is forced to write "I have received" to him [Sma]. And some say that this is specifically when he wrote it to him before the payment, but after the payment it is only like one witness [Taz], and according to this opinion it is also not effective to collect from purchasers when it is written after the payment [Urim VeTumim]. And there are those who disagree with all of this, for they hold that even though he wrote "I have received" to him, and even before the payment, it is only effective regarding the borrower himself, that he is not believed to say "I paid," and for this it is effective even when he wrote it to him after the payment [ibid.]; but he cannot collect from encumbered properties until the lender delivers the debt document to him and transfers it to him by way of a transfer of documents as explained in siman 66. And the same law applies if the borrower wrote to the guarantor when he entered into the guarantee: "Behold, I encumber myself and my properties from now, that whenever you pay that debt for which you became a guarantor to so-and-so the lender, it is as if I received the money from you," behold, this one collects from purchasers and from adult orphans, for you have no greater loan by document than this. And the great authorities decided according to this opinion [Shach and Urim VeTumim]. And it appears to me that when he wrote to him thus, even if the loan was a loan by word of mouth, nevertheless, regarding the guarantor it becomes like a loan by document if he made such a document with witnesses, for every document with witnesses has a voice, and the purchasers should have been careful not to buy from him.

A guarantor who paid the creditor and did not request the document from him, the borrower is not liable for anything to pay him back for what he paid on his behalf. For since he knew that it was a debt with a document, he was negligent in that he left the document in the hand of the creditor. Even if the borrower did not command him to take the document, since he knew of the document, he is considered negligent [Sma], and the borrower shall not pay him unless he receives the document from the hand of the creditor and delivers it to him.

If the borrower died and the guarantor went ahead and paid the debt before informing the heirs, if it is known to us that the borrower did not pay his debt before he died—for example, if he admitted to it before he died, or they placed him under a ban and he died in his ban, or the time for payment had not yet arrived—he returns and collects from the heirs everything he paid, if they inherited land or money or movable property from their father; and even in a loan by word of mouth the law is so. But if it is not known to us that the borrower did not pay, since he paid without informing the orphans, we are concerned even in a loan by deed that perhaps the borrower provided him with collateral for the debt before his death, and all the more so in a loan by word of mouth. However, when it is known through one of the ways that was explained that he did not pay, the guarantor collects even from minor orphans [Sma]. And there are those who say that in a loan by deed, even when he did not inform the heirs, if they are adults they must pay when the deed is in the hand of the guarantor, and in the manner that was explained in section 3; and specifically regarding minor orphans do we concern ourselves with collateral, but not with adults. Our teacher, the Rema, decided in accordance with this opinion, and there is one who is uncertain in this matter whether there is the power to extract from orphans [Shach].

And if the lender was a non-Jew, the heirs are not obligated to pay the guarantor even for a loan with a document when he did not inform them, and even if it is known that he did not pay the lender during his lifetime, because we are concerned that perhaps their father gave the guarantor the entire debt that was upon him since the non-Jew sues the guarantor first, and therefore this one paid of his own accord before he informed the orphans. But if he informed them that the non-Jew is suing him and that he is giving it to him, they are obligated to pay, for in truth this concern that perhaps their father gave to the guarantor is a slight concern regarding adult orphans; only because of the deficiency that he did not inform them do we concern ourselves with this. And if a beit din compelled him to pay, it is as if he informed them.

The Rambam, of blessed memory, wrote [chapter 26 of Laws of Creditor and Debtor] that regarding the fact that the borrower is obligated to pay the guarantor when he paid the creditor on his behalf, in what case does this apply? When the borrower said to him at the time he became a guarantor for him, "Guarantee for me and pay," for then even if he paid the creditor before standing in beit din with the borrower, he is obligated to pay him. But if he stood up on his own and became a guarantor or a kablan for him and went ahead and paid the creditor, and the borrower did not authorize him to pay, the borrower is not obligated to pay him anything, for he is like one who pays the debt of his fellow without his knowledge, who is exempt, as written in siman 128. And even if he told him to enter as a guarantor for him but did not authorize him to pay, if after the creditor stood in beit din with the borrower and assets were not found for him, the guarantor paid the creditor, the borrower is obligated to pay him. And if before the creditor stood in beit din with the borrower and assets were not found for him, the guarantor paid him, the borrower is not obligated to pay him anything; for since the creditor could not press the guarantor except after standing in beit din with the borrower, and this one went ahead and paid him, he is like one who pays his debt without his knowledge, as has been written. But if he said to him, "Enter as a kablan for me," even though he did not authorize him to pay, if the kablan stood and paid of his own accord even before the creditor and the borrower stood in beit din and assets were not found for him, he is obligated to pay him; since with a kablan the creditor can claim from whomever he wishes, as written in siman 129, he did not have to wait until he claimed from the borrower. And there is one who disagrees and says that even a guarantor who is not a kablan who entered into a guarantee on his own and paid on his own returns and collects from the borrower, and some say specifically when he said to him "Guarantee for me," but without this it is nothing [Shach].

In siman 49 it was explained that a guarantor does not become obligated except in a case where he can collect from the borrower, see there. And this is specifically in a case where the borrower became obligated by law, but it is not within his power to collect from him; however, in a case where he did not become obligated at all by law, such as in siman 129, section 21, the guarantor is liable even though the borrower did not become liable, since no obligation at all was placed upon the borrower [Sma]. And in siman 77 it was explained that two who borrowed from one, both are guarantors for one another, and see there for many detailed laws regarding this.