Siman 131

One who agreed to be a guarantor before the lender gives the money to the borrower may retract, even if they performed a kinyan with him. For before the giving of the money, the essence of the guarantee does not depend on a kinyan, but rather on his speech, through that benefit that he is trusted by him, as I wrote at the beginning of siman 129; and behold, he retracted and does not want his trust. And if the lender was not concerned and gave the money to the borrower, he has nothing against the guarantor. And he is also believed to claim any other claim to nullify the guarantee with a migo that he could have said he retracted [Urim VeTumim]. And so too, if he sent him in writing that he is nullifying his guarantee, if he has not lent to him yet, the guarantee is nullified. But a guarantor after the giving of the money, since they performed a kinyan with him, he cannot retract, for after the giving of the money the essence of the guarantee depends on the kinyan, and there is nothing after a kinyan. And it is not in the power of the lender to nullify the loan. And there is no difference in this between a guarantor and a kablan. And at the end of siman 39, that a lender who promised to lend to a borrower may retract even if they performed a kinyan with him, but if he received a mashkon he cannot retract; however, even where he received a mashkon, if he set up a guarantor and the guarantor retracted, the lender may also retract, even when he accepted with a kinyan and even with a mashkon, for he only promised him if the guarantor would stand by his guarantee [see Sma].

One who says to his fellow, "You became a guarantor for me," and he says, "I did not become a guarantor," or if the guarantor said to the borrower, "You authorized me to become a guarantor for you and I paid the creditor, therefore pay me what I paid on your behalf," and he says, "You became a guarantor of your own volition," or "You did not become a guarantor at all and I do not have to reimburse you because you paid my debt without my knowledge and I am exempt," as has been explained in siman 128; or if the guarantor said to the borrower, "I paid the creditor in your presence," and the borrower says, "You did not pay," or if he said to him, "You paid and I paid you back what you paid on my behalf"; or if the creditor said, "You became a guarantor to me for two hundred," and he says, "I only became a guarantor to you for a maneh"—in all these claims and those similar to them, the burden of proof is on the claimant, or the defendant shall swear a shevuat hesat if he denies everything, and there is a Torah oath if he admits to a part. The law of the guarantor with the borrower is like a creditor with an oral loan, for he can say, "I paid you." However, if the creditor wrote for him, "I have received [payment]," he stands in his place. And if the loan is in a document and the document is in his hand, he is not believed to say, "I paid," as has been explained in siman 130. Likewise, when the guarantor says to the creditor, "I paid you," regarding an oral loan, he is believed with a shevuat hesat.

A guarantor or a kablan who sees that the borrower is squandering his assets may compel him to release him from the guarantee, even if it is within the time [set for the loan]. Such is also the law regarding the lender himself, as was written in siman 73, section 15. It was explained there that this applies specifically when he is squandering [assets], but if due to the hardship of the times business dealings are going awry, one cannot compel him within the time, for he is not liable for this; and the same applies to a guarantor [Urim VeTumim].

A guarantor who came to the lender at the time of the debt's maturity and warned him to claim his money from the borrower, and if not, he would be released from the guarantee, and the lender did not wish to do so and extended the time for the borrower, and in the meantime the borrower's properties were ruined or he lost them—the guarantor is released, for he can say to him: "I was only a guarantor until that time, and I warned you, and you could have collected then and you did not wish to, and you caused the loss to yourself" [our teacher, the Beit Yosef]. And there is one who says that the guarantor is not released by this, and even if there were known properties belonging to the borrower and the guarantor said to the lender, "Go with the borrower to beit din and collect your debt from the properties," and he extended the time and in the meantime the properties were ruined or lost, nevertheless he collects from the guarantor, for the lender can say to him: "You should have given me my money, and I did not wish until now to go with the borrower to beit din." But regarding a kablan, even according to the first opinion, he is not released by this, for since the lender has the authority to collect from whomever he wishes, he cannot compel him to go with the borrower to beit din. And if the guarantor wished to go to beit din with the borrower and the lender did not allow him, and in the meantime the properties were lost, even according to the latter opinion and even regarding a kablan, the guarantor is exempt, for in this case it is certain that the lender caused the loss to himself [Sma]. And the one in possession can say "kim li" according to the first opinion, because logic inclines toward this opinion [Acharonim]. And this is obvious: if the borrower was prepared to give the lender his money and the guarantor sent for him to come and receive them or to send him the document to claim the debt, and he did not wish to and the debt was lost, he is exempt from the guarantee and the kablanut even according to the latter opinion. And likewise regarding the borrower, the guarantor can compel him to release him from the guarantee at its time, for he can say: "I did not agree to be a guarantor except until now," and the beit din is obligated to compel him to pay when the time arrives, and if not, he shall remove from him the guarantee and the kablanut, and even according to the latter opinion [Urim VeTumim], not like the one who disagrees in this. And the reason is that granted that according to the latter opinion he cannot compel the lender, but regarding the borrower there is no logic that he should not have the power to compel him in this. And such is the primary ruling, not like those who hesitate in this. And all this is regarding a guarantee and kablanut, but in a case of "took and gave by hand," the guarantor has no claim against the lender, and the lender's legal dealing is only with the guarantor, as I wrote in siman 129. And if there was some condition between them at the time of the guarantee, any condition in monetary matters is valid [Shach].

If the lender was an extortionist and the borrower gave the money to the guarantor to pay the extortionist, and the extortionist forgot them with the guarantor, he must return them to the borrower. The guarantor cannot say, "Perhaps the lender will remind himself and I will be required to return it to him," because he can say to him: "Were you not a guarantor for me and you trusted me? Trust me now as well, that if he demands it I will return them to you and you will pay him." And even though it was explained previously that the guarantor can compel the borrower to pay at his appointed time and is not obligated to trust him any further, nevertheless, since here there is an additional doubt that perhaps he will not claim it at all, the borrower can say this to him [Sma]. And why does the guarantor not acquire the money? Because the borrower only gave it to him so that he would deliver them to the lender, and since the lender did not receive them, they belong to the borrower. Nevertheless, if according to the eyes of the beit din there is reason to fear that it will be difficult later to extract it from the borrower when the lender claims it, the guarantor is not obligated to return it to him [it appears to me].

An incident occurred regarding an Israelite who was a guarantor for his fellow on behalf of a non-Jew, and the guarantor took a pledge from the non-Jew and gave it to the lender. The non-Jew came to the guarantor on Erev Shabbat close to nightfall, and the lender was also at that gathering [Urim VeTummim], and the non-Jew said to the guarantor: "Be a guarantor for me to this person to whom I am indebted, so that he returns my pledge to me, for I need it." The guarantor said to him: "Shabbat has already entered and I will not perform any act of guarantee." The non-Jew appeased the guarantor until he said to the lender: "Behold, I am as I was," and the lender returned the pledge to the non-Jew. After some time, the lender sued the guarantor because the non-Jew did not want to pay. The guarantor claimed: "It was not in my mind when I said 'Behold, I am as I was' except to mean as I was after the pledge came into your hand; and proof for the matter is that you saw my refusal to enter into the guarantee further, and I hung my reason on the prohibition of Shabbat." They ruled that the law is with the guarantor, for the lender should have specified his guarantee. Nevertheless, the guarantor is obligated to assist the lender in extracting his debt from the borrower, for he will not be brazen against him because of the favor he did for him. And even if there were no proof that he refused him, one also cannot obligate the guarantor, since what he said, "Behold, I am as I was," can be interpreted toward exemption; from where do we know to obligate him? And the burden of proof is on the claimant, and the lender should have specified his guarantee [Taz and Urim VeTummim]. And any language that a guarantor says which can be interpreted in two ways, one does not have the power to obligate him, even with an Israelite borrower, for the burden of proof is on the claimant [it appears to me].

A case came before Rashi, of blessed memory, regarding an Israelite who held a collateral from a gentile, and the gentile requested of him that he return the collateral to him and provide an Israelite guarantor for him. The lender agreed to his words, and the gentile brought an Israelite guarantor. The guarantor said to him in the holy tongue: "I warn you that you should not accept me as a guarantor," but in the presence of the gentile he said, "I am a guarantor." Rashi ruled that he is a guarantor, and the warning that he warned him is nothing, for he should have excused himself; and since he did not do so and admitted to his guarantee in his presence, the lender also does not have the ability to excuse himself and say to the gentile, "I do not accept this person as a guarantor," since it is known that he is fit to be accepted as a guarantor and he already agreed to the gentile that he would return it to him by means of a guarantor. Therefore, he is a guarantor as if at the time of the giving of the money. But if before the lender agreed to the gentile that he would accept a guarantee, the guarantor came to the lender and warned him that he should not accept him as a guarantor, even though he would promise him in the presence of the gentile to be a guarantor, and nevertheless the lender accepted him as a guarantor—there is no guarantee here at all. Since he warned him beforehand, and even though it is difficult for him to say to the gentile that he does not accept this person as a guarantor, nevertheless it is also difficult for the guarantor to excuse himself; and since he warned him beforehand, we are not to obligate the guarantor, and the obligation is more incumbent upon the lender to excuse himself, and he does not have the power to extract from the guarantor [and the Taz, and the Shach, and the Urim VeTummim]:

An incident occurred involving Shimon who was a guarantor to a gentile on behalf of Reuven. Reuven went away, and Shimon was forced to pay on his behalf. When Reuven arrived, Shimon claimed from him, and Reuven said to him: "You should not have paid him, for I already paid him and I have a receipt from him." Shimon said to him: "I was forced to pay him since you did not leave the receipt in my hand, and you left the promissory note in the hand of the gentile." The Rosh, of blessed memory, ruled that the law is with Shimon, and Reuven is obligated to pay him everything that he clarifies he gave to the gentile, even if the gentile took from him unlawfully, because he was compelled to give it to him. The clarification shall be by means of witnesses or by means of a note from the gentile that is recognizable as the handwriting of the gentile, or that the gentile wrote within the document how much he received from Shimon. The same applies to any guarantor to a gentile on behalf of his fellow Israelite: even if the gentile made a false accusation against the guarantor by power of the guarantee, the borrower is obligated to pay him. This is specifically when the guarantor does not admit that the gentile released him in his presence; and even if the courts released him, nevertheless, since the gentile himself did not release him, it is his way to make false accusations [Sma]. However, if he admits that the gentile released him, or there are witnesses that he released him and afterwards he returned and made a false accusation against him, the borrower is exempt, for a person is not seized on behalf of his fellow, as written in siman 128. Similarly, if he made a false accusation against him after the time of the guarantee and after they had already paid the gentile and departed from one another, he does not need to pay him, for he is not seized on behalf of his fellow [Urim VeTummim]. In a case where he is obligated to pay for the false accusation that he made due to the guarantee, the guarantor is not believed even with an oath that he incurred expenses for the false accusation; he needs witnesses that he was forced to compromise with the gentile by power of the guarantee. Then, even if the witnesses do not know how much he spent, he shall swear how much he spent and collect, since he brought him in as a guarantor and it is upon him to compensate him; his law is like one who descends with permission, who swears and collects when there are witnesses to the core matter that he was forced to compensate him [Sma]. And if the witnesses, or even one of the witnesses, testify clearly how much he spent, he collects without an oath. But if he did not produce witnesses at all, he has caused his own loss. And when they know the sum that the gentile received but do not know for what, he is believed to say that it is because of the guarantee, for there is a basis for the matter [the Gra]. That which we wrote, that he is believed based on a note from the gentile, this refers to the core guarantee explained in the document; even though he already received from the borrower himself, nevertheless, since he left the document in the hand of the gentile and he was able to sue him, he is believed regarding the words of the gentile. But regarding that which he falsely accused him for more than the debt and it is not explained in the document, he needs witnesses [Urim VeTummim]. And some say that in truth, even there the gentile is not believed, and the note requires validation from the courts [Bach], or that it was clarified that there was a writing from the gentile regarding the receipt of the money from Shimon while the document was still in the hand of the gentile [Taz], for certainly the truth is so, since the gentile himself impairs the document. But afterwards there is no proof, for perhaps he returned the document to him after Reuven paid and afterwards they made a conspiracy between them. The essentials of these matters depend on the sight of the eyes of the beit din to understand this correctly. When they understand that the guarantor paid or incurred expenses, the borrower must pay him. And some say that this rule, that the borrower is obligated to protect the guarantor from accidents, refers specifically to a common accident; but regarding an uncommon accident, according to the sight of the eyes of the beit din, the borrower is not obligated in this, and his own fortune caused it. An incident occurred with two people who took a lease from a gentile and became guarantors for one another. The gentile found one of them and collected from him. The Rosh, of blessed memory, ruled that his fellow is obligated to pay his portion of every loss that came to him from that gentile. And if he was ready to pay his portion and the loss came to him by power of his fellow who did not pay, his fellow is obligated to pay him the entire loss, for they are obligated to compensate a guarantor for every loss [and that which the Sma wrote from siman 93, according to what I wrote there in section 17, it is well, and study it]. Another incident occurred involving a certain official who was accustomed to giving a stipend to Reuven. Shimon became an administrator for the official and did not want to give the stipend to Reuven until he brought Levi in as a guarantor that if the official would not accept in the accounting what he gave to Reuven, he would pay him. Reuven died, and now Shimon says that the official did not accept it in the accounting and sues the guarantor. The guarantor claims: "Perhaps Reuven paid you." The Rosh ruled that the law is with the guarantor. From these matters we can learn many laws regarding guarantee that are impossible to detail.

It has already been explained in siman 129, section 21, that even though the essence of a guarantor is an asmakhta and the Torah obligated him because of the benefit of being trusted by him, nevertheless, if there is an additional asmakhta in this matter, there is a dispute whether it is effective; see there. Therefore, some have written that if Reuven sold a field to Shimon, and Levi came and accepted responsibility for the field upon himself—that if they seize it from Shimon, he will pay him—Levi is not subordinated. Since the responsibility is not for the money as in every loan, for he gave the money for the field and acquired it, and the responsibility is for the seizure, it is an asmakhta that is not within the body of the guarantee. And it is not relevant in this case to say "through that benefit of being trusted," for he has now acquired the field in the manner of those who purchase fields. Furthermore, this asmakhta is worse than what is explained there, for regarding the asmakhta there, there is at least this reasoning of "being trusted" as written there, only that an asmakhta was added to it; but here there is no trust at all. According to this, it is possible that even one who obligates there exempts here [Sma, subsection 24]. And some say that there is no issue of asmakhta regarding a guarantor for responsibility at the time of the giving of the money, and he is subordinated; for since in every guarantee there is an asmakhta, one should not distinguish between one asmakhta and another. And if they performed a kinyan from him that he is a guarantor to pay the value of this sale at any time that Shimon demands it of him—even if there is no challenger to the field, only that Shimon wants to cancel the purchase—he would have to return his money to him and he becomes a guarantor for the money if Reuven does not pay him, he is obligated even according to the first opinion, for this is like all guarantees.

And so too, a guarantor or a contractor who obligated themselves upon a condition, even though they performed a kinyan from his hand, he is not bound because it is an asmachta not regarding the essence of the guarantee. How so? Reuven who said to Shimon, "Give Levi one hundred zuz and I will give to you if it will be such and such," or "and I will give to you if it will not be such and such," because he did not fully resolve to transfer ownership; for since he suspended his obligation upon a condition, his mind relied upon it certainly being according to his words, and he did not fully resolve to transfer ownership if it would not be so. And therefore, if they performed a kinyan from his hand "from now" that he shall be obligated to him for this money if the condition is fulfilled, he is liable, for every kinyan "from now" does not involve an asmachta, as I wrote in siman 207. And according to that opinion which will be explained there, that we also require a prominent beit din, it is necessary also in this case for the kinyan to be in a prominent beit din. And there are those who say that there is no asmachta at all regarding a guarantee, and one should not distinguish between one asmachta and another asmachta, as I wrote in the previous section.

And similarly, one who says to his fellow, "Lend Levi one hundred zuz and I am not a guarantor to you for the money, but rather for the person of Levi, that whenever you desire I will bring him to you," and similarly if he said to him after he lent him and he demanded that he pay him, "Leave him now and whenever you demand of him I will bring him to you," even if they performed a kinyan with him on this, and even if he stipulated and said, "If I do not bring him to you, or if he dies or flees, I obligate myself to pay you such and such money," behold this is an asmachta that is not of the essence of a guarantee and he is not obligated. For any guarantee that is not a standard guarantee where he says, "If he does not pay you, I will pay you," is not a guarantee and is a complete asmachta. And there are those who say that there is no issue of asmachta in a guarantee at all, and one should not distinguish between them, as was written in section 9.

An incident occurred regarding Reuven who purchased a field from Shimon, and he wrote him a deed. He said to him that he should also produce a deed for him from his wife, but she was not there. Levi stood as a guarantor on his behalf that when she comes, she will produce a deed regarding herself. When she came, she did not want to produce a deed, and Reuven claimed against the guarantor that he should produce a deed for him regarding his own properties. The guarantor claims that he is not liable, but rather he should return his money to him. The Rosh, of blessed memory, ruled that the law is with the guarantor, for even the seller only vowed to him that either his wife would produce the deed for him or the purchase would be voided and he would return his money to him; and consequently, the guarantor also did not obligate himself to him for more than this.

Our teacher, the Beit Yosef, wrote in section 13: One who did not specify the amount of the matter for which he became a guarantor, for example, if he said to him, "Whatever you give him, give it to him and I am a guarantor," or "Sell to him and I am a guarantor," or "Lend to him and I am a guarantor"—according to the Rambam, this guarantor is not liable for anything. However, all who came after him disagreed with him, and thus we hold. Thus far his words. For the Rambam follows his own reasoning that a person cannot obligate himself in a matter that is not specified, as was written in siman 60. However, one of the great authorities wrote that even according to the poskim who obligate in a matter that is not specified, one should exempt in this case for the reason that there is the additional asmachta of guarantee; and even though for each one individually one would be obligated, nevertheless, when the two deficiencies are joined, he is not obligated [Sma]. And the first opinion in section 9 is the opinion of the Rambam [and according to this, there is no contradiction to what was written in siman 60 regarding his opinion, of blessed memory].

One who says to his fellow, "Become an arev for so-and-so for such-and-such an amount and I am an arev for you," this is like one who says, "Lend to him and I am an arev," and it does not require a kinyan. And even if the first arev is not at the time of the giving of the money and requires a kinyan, nevertheless the second becomes obligated without a kinyan, for the time of the first one's obligation through a kinyan is like the time of the giving of the money regarding the second [Sma]. And even when the lender himself did not want to accept this arev until this arev would provide him another arev in his place, both of them also become obligated; and at the time of the giving of the money, both do not require a kinyan, and after the giving of the money, the first requires a kinyan and the second does not, for the time of the first one's obligation through a kinyan was like the time of the giving of the money regarding the second [Shach]. And there are those who disagree with this, for certainly if the second arev is an arev for the first, it is like the time of the giving of the money through that benefit that the first trusted him and became obligated through a kinyan; but to the lender, through what did the second become obligated? Since it was not at the time of the giving of the money and he did not trust him at all, for the first became obligated through a kinyan, but through what did the second become obligated? Therefore, one should not extract money in such a case from the second arev [Urim VeTummim]. And if the first arev became a kablan, there is one who says that the second also becomes obligated, since the lender can collect from him even if he does not claim from the borrower first, as written in siman 129, it is as if he lent it now to the first arev and trusted the second arev as if he lent to him based on his guarantee [ibid.]. But this does not seem correct, for still, what did the lender lose such that "trust" would be applicable here? Behold, he can claim from the borrower as before.