Siman 132

A slave or a woman who has a husband who acted as guarantors for others, or entered as kablanim and became obligated to pay, they are not obligated to pay until the slave is emancipated and the woman is widowed or divorced, for while they are under owners they have no property, as whatever a slave acquires, his master acquires, and whatever a woman acquires, her husband acquires. And if they have property in which the owners have no authority, they pay from them. And likewise, if they became guarantors for the owners and they have their own property in their possession, they are obligated to pay in such a case. But a minor who acted as a guarantor for others is not obligated to pay even when he grows up, and even if he has property, for his actions are nothing. And even if he reached the age of pe'otot, where his gift is a gift as has been written in siman 235, nevertheless, regarding the matter of guarantee, he does not have the power and legal capacity to obligate himself in a matter for which he is not liable; and the same applies to a deaf-mute and an imbecile.

An unmarried woman who acted as a guarantor for others and subsequently married—her law is like one who borrowed and subsequently married, as has been explained in Even HaEzer siman 91, that if she acted as a guarantor orally, she is not obligated to pay until she is widowed or divorced, for the husband is like a purchaser, and an oral debt is not collected from purchasers. And if she acted as a guarantor with a deed, he collects from her from that which she brought in to her husband; and he only collects from land that she brought in to him and not from movable property, for one does not collect from purchasers who purchased movable property unless she subordinated to him "movable property incidental to land." And even according to our custom that even in such a case one does not collect from movable property that was sold, as I wrote in siman 60, because of the "market enactment," nevertheless from a husband one collects, for in a place of loss to others his status is only like an heir [see Tosafot Bava Metzia 96b, starting with "Rather"]. And the reason one does not collect from him in an oral loan is because the lender caused his own loss, for he should have written a deed [Sma and Shach]. And similarly, when he did not write "movable property incidental to land," he caused his own loss. And some say that even in such a case one collects from movable property since he wrote a deed [Shach]. [What he wrote, that when the movable property is still in existence one collects from them, I do not know what the master is saying].

Two who served as guarantors for one person, when the creditor comes to collect from the guarantor, he may collect from whichever of them he desires, and the reason has already been explained in siman 77, section 5. And if one of them did not have enough to cover the debt, he goes back and claims the remainder of the debt from the second. And there are those who disagree and say that if he is able to collect from both of them, he should not collect everything from one of them, but rather he collects half from this one and half from this one, unless one of them does not have [the funds], in which case he collects everything from the second. And if he said, "I shall collect from whomever I desire," he collects from whomever he desires.

If one of them paid the entire debt to the creditor and clarified this with witnesses, or the creditor wrote for him, "I have received the entire debt," he returns and sues his fellow for his portion. This is so even according to that opinion in siman 130 that when the debtor did not say to the guarantor, "Guarantee for me and pay," he does not need to pay him; however, regarding two who guaranteed for one, even if he did not say to him, "Guarantee for me and pay," he must pay him his portion when he paid the entire debt, since the creditor can collect from whomever he wishes, and his law is like that of a kablan there. And even according to those who disagree in the previous section, that he cannot sue one for everything when the second also has [means], and he collected everything from him—the second also cannot say, "Behold, he had from what to collect from me, and why did you pay everything? And if so, you waived it for me and I will not pay you my portion." For since they became guarantors together and became guarantors for one another, it is as if he authorized him to pay, for on this condition they joined in it [our teacher, the Beit Yosef]. And specifically when they guaranteed together, but when each one guaranteed on his own, he does not sue his fellow for his portion [Netivot HaMishpat].

One who stood as a guarantor for two people: when the guarantor pays one of the two debts, the lender must inform him for which debt he is receiving payment from him, so that the guarantor may return to that debtor to collect from him, for the choice is in the hand of the lender to receive for whichever debt he desires, as has been written in siman 83 [Sma]. And some say that the matter depends on the guarantor, that he must inform the lender for which of them he is paying, so that that debtor will be obligated to pay him; for if he does not inform him, he will not be able to return to them, as each one will push him away, saying, "You did not pay for me," unless he takes an authorization from the lender and collects from one of them in any event. And the lender is not concerned for whom he pays him, for what does it matter to him [Taz and Shach]. And so it was explained in siman 77, section 5, see there.

Two who entered as guarantors and the lender released one of them, some say that the lender can claim the entire sum from the second guarantor according to the first opinion in section 3, that he may claim from whomever he wishes; and even if he had not forgiven him, he would have been able to collect the entire debt from one, and it was explained in siman 77 section 10. And one cannot say that nevertheless there is a loss to the second, for if he had not forgiven the one, he would have collected from him when the lender collected the entire debt from the second, and when he forgave him he would not be able to collect from him—for it can be said that they truly entered into the guarantee for the sake of the borrower, and from the borrower he will be able to collect. And this fact, that the lender is able to collect the entire debt from one of them, is because it is as if each one guaranteed for the entire debt, and if so, he has no claim regarding the forgiveness [it appears to me]. And even though some say that when the second pays the entire debt he can claim half from the other guarantor and the lender's forgiveness is not effective, it does not appear so according to the law [and so wrote the Urim VeTummim]. And there is one who says that if the lender made a new document for one of the guarantors and established it upon him as a loan, the other guarantor is released. However, if the new document was made for the sake of some additional obligation, the other guarantor is not released, for the intention was not to cast the entire obligation of the guarantee only upon him, and the making of the main document is for the sake of the obligation that was added, and consequently he was required to mention the obligation of the guarantee.