Layers of Arvut: Legal, Ritual, and Communal Responsibility

§ Rav Huna said: From where is it derived that a guarantor becomes obligated to repay a loan he has guaranteed? As it is written that Judah reassured his father concerning the young Benjamin: “I will be his guarantor; of my hand shall you request him” (Genesis 43:9). This teaches that it is possible for one to act as a guarantor that an item will be returned to the giver. Rav Ḥisda objects to this: This incident involving Benjamin is not a case of a standard guarantor, but a case of an unconditional guarantee, as it is written, also in the context of Benjamin, that Reuben said: “Deliver him into my hand, and I will bring him back to you” (Genesis 42:37). One who undertakes unconditional responsibility for a loan has a different status than a standard guarantor, as will soon be elaborated. Therefore, a biblical source has yet to be adduced to teach that one can become a standard guarantor. Rather, Rabbi Yitzḥak said that the source is from here: “Take his garment that is surety for a stranger; and hold him in pledge that is surety for an alien woman” (Proverbs 20:16). The verse advises a creditor to take the garment of the debtor’s guarantor as payment for the loan. And it is stated: “My son, if you have become surety for your neighbor, if you have shaken your hands for a stranger, you have become ensnared by the words of your mouth, you have been caught by the words of your mouth. Do this now, my son, and save yourself, seeing that you have come into the hand of your neighbor: Go, humble yourself [hitrappes], and assemble your neighbors” (Proverbs 6:1–3). This last part of the passage means: If your neighbor’s money is in your possession, as you owe it as a guarantor, open up [hatter] the palm [pissat] of your hand and repay him. And if it is not money that you owe him, but rather “you have become ensnared by the words of your mouth” and owe him an apology for a personal slight, gather together many neighbors through which to seek his forgiveness. § Ameimar said: The issue of whether or not a guarantor in fact becomes obligated to repay the loan he has guaranteed is a dispute between Rabbi Yehuda and Rabbi Yosei. According to Rabbi Yosei, who says that a transaction with inconclusive consent [asmakhta] effects acquisition, a guarantor becomes obligated to repay the loan, whereas according to Rabbi Yehuda, who says that an asmakhta does not effect acquisition, a guarantor does not become obligated to repay the loan. Any obligation one undertakes that is dependent on the fulfillment of certain conditions that he does not expect will be fulfilled, in this case the debtor’s default on the loan, is considered an asmakhta. Rav Ashi said to Ameimar that he was conflating these two issues: But it is a daily occurrence, i.e., it is taken for granted, that an asmakhta does not effect acquisition, and it is also taken for granted that a guarantor becomes obligated to repay the loan he has guaranteed. Rather, Rav Ashi said: Through that satisfaction that the guarantor feels when the creditor trusts him and loans the money based on his guarantee, the guarantor resolves to obligate himself to repay the loan. Guaranteeing a loan is unlike a usual case of an obligation undertaken that is dependent on the fulfillment of certain conditions that he does not expect will be fulfilled, in which the commitment is not considered a real one. Here, the one obligating himself experiences a sense of satisfaction when the money is loaned to the debtor, and due to that, fully commits to fulfill his obligation.

Then Judah said to his father Israel, “Send the boy in my care, and let us be on our way, that we may live and not die—you and we and our children.

Their father Jacob said to them, “It is always me that you bereave: Joseph is no more and Simeon is no more, and now you would take away Benjamin. These things always happen to me!” Then Reuben said to his father, “You may kill my two sons if I do not bring him back to you. Put him in my care, and I will return him to you.” But he said, “My son must not go down with you, for his brother is dead and he alone is left. If he meets with disaster on the journey you are taking, you will send my white head down to Sheol in grief.”

Then Reuben said to his father, “You may kill my two sons if I do not bring him back to you. Put him in my care, and I will return him to you.” But he said, “My son must not go down with you, for his brother is dead and he alone is left. If he meets with disaster on the journey you are taking, you will send my white head down to Sheol in grief.” But the famine in the land was severe. And when they had eaten up the rations which they had brought from Egypt, their father said to them, “Go again and procure some food for us.” But Judah said to him, “The man warned us, ‘Do not let me see your faces^-a unless your brother is with you.’ If you will let our brother go with us, we will go down and procure food for you; but if you will not let him go, we will not go down, for the man said to us, ‘Do not let me see your faces^-a unless your brother is with you.’” And Israel said, “Why did you serve me so ill as to tell the man that you had another brother?” They replied, “But the man kept asking about us and our family, saying, ‘Is your father still living? Have you another brother?’ And we answered him accordingly. How were we to know that he would say, ‘Bring your brother here’?” Then Judah said to his father Israel, “Send the boy in my care, and let us be on our way, that we may live and not die—you and we and our children. I myself will be surety for him; you may hold me responsible: if I do not bring him back to you and set him before you, I shall stand guilty before you forever. For we could have been there and back twice if we had not dawdled.”

Seize his garment, for he stood surety for another;
Take it as a pledge, [for he stood surety] for an unfamiliar woman.

My son, if you have stood surety for your fellow,
Given your hand for another, You have been trapped by the words of your mouth,
Snared by the words of your mouth. Do this, then, my son, to extricate yourself,
For you have come into the power of your fellow:
Go grovel—and badger your fellow;

The Gemara questions this assertion: But from the fact that the latter clause of the mishna teaches that Rabban Shimon ben Gamliel says: If the debtor has property of his own, then whether in this case, where the creditor stipulated this condition, or that case, where he did not, he cannot collect the debt from the guarantor, by inference one can understand that the first tanna maintains that there is no difference if it is like this and there is no difference if it is like that. Whether or not the debtor has property from which to repay the loan, the creditor can collect the debt from the guarantor. The Gemara clarifies: The mishna is incomplete and this is what it is teaching: One who lends money to another with the assurance of a guarantor cannot collect the debt from the guarantor before first claiming the debt from the debtor. But if the creditor said to the debtor: I am lending the money on the condition that I will collect the debt from whomever I wish, he can collect the debt from the guarantor. In what case is this statement said? When the debtor has no property of his own from which to repay the debt; but if the debtor has property, the creditor cannot collect the debt from the guarantor. This is the halakha with regard to a standard guarantor, but in the case of an unconditional guarantor, even if the debtor has property of his own, the creditor can collect the debt from the unconditional guarantor. Rabban Shimon ben Gamliel says: If the debtor has property, in both this case and in that case, i.e., whether the guarantor is a standard guarantor or an unconditional guarantor, the creditor cannot collect the debt from either type of guarantor. Rabba bar Ḥana says that Rabbi Yoḥanan says: Wherever Rabban Shimon ben Gamliel taught a halakha in the corpus of our Mishna, the halakha is in accordance with his opinion, except for the following three cases: The responsibility of the guarantor, and the incident that occurred in the city of Tzaidan (see Gittin 74a), and the dispute with regard to evidence in the final disagreement (see Sanhedrin 31a). § The Gemara discusses which expressions confer upon a person the status of a standard guarantor, and which confer the status of an unconditional guarantor. Rav Huna says that if one says to a potential creditor: Lend money to him and I am a guarantor, or: Lend money to him and I will repay the debt, or: Lend money to him and I am obligated to repay the debt, or: Lend money to him and I will give the money back to you, all these are expressions that confer the status of a standard guarantee. If one says: Give money to him and I am an unconditional guarantor, or: Give money to him and I will repay the debt, or: Give money to him and I am obligated to repay the debt, or: Give money to him and I will give the money back to you, all these are expressions that confer the status of an unconditional guarantee. The usage of the word give, as opposed to lend, confers the status of an unconditional guarantor. A dilemma was raised before the Sages: What is the halakha if one says: Lend money to him and I am an unconditional guarantor? On the one hand, the word lend is used, as opposed to give, but on the other hand, he explicitly states that he will be an unconditional guarantor. What is the halakha if one says: Give money to him and I am a guarantor? On the one hand, the word give is used, as opposed to lend, but on the other hand, he states that he will be a guarantor. Rabbi Yitzḥak says in resolving this dilemma: When one employs the language of a standard guarantee, it is a standard guarantee, even if he also used the word give. And when one employs the language of an unconditional guarantee, it is an unconditional guarantee, even if he also used the word lend. Rav Ḥisda says: All of the expressions mentioned in this discussion are expressions of an unconditional guarantee, except for: Lend money to him and I am a guarantor. Rava says: All of the expressions mentioned in this discussion are expressions of a standard guarantee, except for: Give money to him and I will give the money back to you.

MISHNA: One who lends money to another with the assurance of a guarantor cannot collect the debt from the guarantor. But if the creditor said to the debtor: I am lending the money on the condition that I will collect the debt from whomever I wish, i.e., either the debtor or the guarantor, he can collect the debt from the guarantor. Rabban Shimon ben Gamliel says: If the debtor has property of his own, then whether in this case, where the creditor stipulated this condition, or that case, where he did not, he cannot collect the debt from the guarantor.