Bava Batra 173b — the Talmud in English

And if he said to him

the creditor:

“on the condition that I collect from whomever I wish,”

having stipulated at the time of the loan that he would be able to collect from whomever he wished, whether from the borrower or from the guarantor,

he may collect from the guarantor,

he is permitted to collect from the guarantor, and he need not first summon the borrower to court.

The Gemara will explain that this must be added here to the words of the Mishna: In what case are these words said? When the borrower has no property; but if the borrower has property, he may not collect from the guarantor. And a arev kablan [that is, one who says to the creditor: Give him a loan, and I will pay you], even though the borrower has property, he may collect from the kablan.

Rabban Shimon ben Gamliel says: If the borrower has property—

in either case,

whether he is an ordinary guarantor or whether he is an arev kablan,

he may not collect from the guarantor

first; rather, he collects from the borrower’s property.

And so too Rabban Shimon ben Gamliel would say: One who guarantees a woman’s ketuba,

one who accepted upon himself a guarantee to pay a woman the ketuba that her husband wrote for her, if the husband would not have the ability to pay,

and her husband was divorcing her

and had no property, and the guarantor had to pay her ketuba.

He must impose a vow of benefit upon her,

the guarantor does not pay her ketuba until her husband imposes upon her, by a vow made with the consent of the many, which cannot be annulled, that she may not derive benefit from him, so that he will not be able to take her back, for we are concerned

lest they make

the husband and his wife

a fraudulent collusion

an agreement of deceit,

concerning this one’s property,

that of the guarantor, so that her husband will divorce her, in order that she collect the ketuba from the guarantor,

and take his wife back,

and the two of them will consume the money of the ketuba that she will receive from the guarantor .

Gemara:

At first the Gemara understood that what is stated in the Mishna, “he may not collect from the guarantor,” means that he may not collect from the guarantor at all, and the guarantee is effective only in a case in which the borrower died or fled, in which case he collects from the guarantor; but if the borrower is before us at the time that the creditor demands his debt, since the guarantor brought the borrower before us, he is exempt from paying the debt.

And we raise an objection:

What is the reason

that the guarantor is exempt from paying the debt when the borrower is before us, seeing that the borrower is not paying the debt?

Rabba and Rav Yosef both say:

because the guarantor can say to the creditor:

“I delivered a man to you; deliver a man to me.”

I was responsible for the borrower, and I returned the borrower to you. I was responsible for the borrower, that if he died or fled I would complete the payment of the debt for you from my property; and now I return the borrower to you, and you can bring him to court, while I am exempt from the debt.

Rav Naḥman strongly objected to this: Is this

law in the Mishna, that the guarantor is exempt from paying the debt that the borrower is not paying, unless the borrower is not here to be summoned

the law of the Persians

their law is?

The Gemara understood Rav Naḥman’s words to mean that it was the custom of the Persians to judge in this manner, so that the guarantor says to the creditor that he returned the borrower to him.

And we raise an objection:

On the contrary,

the Persians

go after the guarantor,

they go after the guarantor and collect even when the borrower has property.

Rather,

Rav Naḥman meant that the Mishna stated a law that is appropriate to

the court of the Persians, for they do not give a reason for their words!

The Persians issue rulings that are improper, and this law also, that the guarantor is exempt from paying when the borrower is before us, is improper, for this is the very reason that he became a guarantor: that if the borrower has no property with which to pay the debt, the guarantor will pay the creditor the money in place of the borrower.

Rather, Rav Naḥman said:

This is how the words of the Mishna are to be explained:

What

is the meaning of

“he may not collect from the guarantor”? He may not first summon the guarantor,

for he became a guarantor only on the condition that the borrower would not pay the debt for any reason, whether because he died, or because he is not present here, or because he has no possibility of paying; he may collect from the guarantor. But as long as it is possible to collect the debt from the borrower, he may not collect from the guarantor.

It was also taught so:

One who lends money to his fellow through a guarantor—

he may not first summon

the guarantor; but if he said, “on the condition that I collect from whomever I wish,”

and the borrower has no property—if he wishes,

he may first summon the guarantor.

Rav Huna said: From where is it derived that a guarantor becomes obligated

through his statement, to be a guarantor for the loan without performing any act of acquisition?

As it is written [Genesis 43:9]

concerning Judah, who said to Jacob our father:

“I will guarantee him; from my hand you shall demand him” .

Rav Ḥisda strongly objected:

How is it possible to prove from there that through a statement alone he becomes obligated to be a guarantor?

There,

the matter concerns a guarantee of

a kablan, as it is written:

[there, Genesis 42:37]:

“Place him in my charge

and I will return him!”

And an arev kablan, who acts as an intermediary between the borrower and the creditor, is more obligated than an ordinary guarantor, for with an arev kablan the creditor has no legal claim or matter of litigation with the borrower, but only with the kablan. If so, perhaps it is only when the guarantor is an arev kablan that he becomes obligated, since he acted as an intermediary in the actual loan; but an ordinary guarantor may not become a guarantor through a statement alone.

Rather, Rabbi Yitzḥak said: From here

there is proof that one becomes a guarantor through a statement alone, as it is stated [Proverbs 20:16]:

“Take

as collateral

his garment

of the guarantor

because

he has made himself

a guarantor

through a statement alone, on behalf of a man

for a stranger, and for a foreign woman hold him as collateral

take collateral from him.”

Thus, there is permission to take from one who guaranteed for another.

And it says

another verse [there 6:1–3]:

“My son, if you have guaranteed

a monetary guarantee

for your fellow, you have struck your palm for a stranger,

or

you have been ensnared by the words of your mouth, you have been caught by the words of your mouth

that you insulted and reviled him,

do this now, my son, and save yourself

from these two matters: concerning

that you have come into the hand of your fellow

that is, money that he has against you,

humble yourself

release your hand to him and give him his money,

and urge your fellow

and, concerning your having greatly insulted him, bring many friends upon him and ask forgiveness.”

For this is the explanation of the verse: “If you have guaranteed for your fellow”—

if he has money in your hand,

that is, you owe him money because you guaranteed for him—“humble yourself,”

release your hand to him,

that is, open your hand to pay him his money

and if not,

if he has no money with you, but rather “you have been ensnared by the words of your mouth,” by speaking harshly to him—

urge him with many friends

to ask him to forgive you.

It is explained in these verses that one becomes a guarantor through a statement alone.

Another law concerning guarantees:

Ameimar said: The law that a guarantor becomes obligated

to pay the borrower’s debt if he does not pay it is

a dispute between Rabbi Judah and Rabbi Yosei.

According to Rabbi Yosei, who says: An asmachta acquires,

that is, if a person promises money to his fellow if such-and-such will happen, even though he thinks that he will not actually have to pay, this is an acquisition and an obligation—according to him, also

a guarantor becomes obligated.

According to Rabbi Judah, who says: An asmachta does not acquire—

according to him, also

a guarantor does not become obligated,

since a guarantee is an asmachta: he says, “If the borrower does not repay you, I will pay you,” and the guarantor relies and trusts in his heart that the borrower will repay his debt; and if he had known that the borrower would not repay, he would not have undertaken the guarantee.

Rav Ashi said to Ameimar: But it is an everyday practice

that we rule

that an asmachta does not acquire, yet a guarantor becomes obligated,

even though an asmachta does not obligate him.

Rather, Rav Ashi said:

The guarantor becomes obligated even though an asmachta does not acquire, because

through that benefit that he trusts him

the benefit that the creditor trusts him and relies upon him in lending to the borrower—

he resolves

the guarantor in his heart

and obligates himself

and binds himself wholeheartedly, so that the creditor will lend to the borrower at his instruction , and he becomes obligated in the debt as though he himself had borrowed .

We learned in the Mishna:

“And if he said, ‘on the condition that I collect from whomever I wish,’

he may collect from the guarantor.”

Rabba bar bar Ḥana said that Rabbi Yoḥanan said: They taught

that he collects from the guarantor

only

at a time

when the borrower has no property, but

if

the borrower has property—

he may not collect from the guarantor.

And we raise an objection:

But since the latter clause teaches, Rabban Shimon ben Gamliel says: If the borrower has property—

he may not collect from the guarantor, this implies

that one should infer

that the first tanna holds: It makes no difference in this case and it makes no difference in that case,

whether the borrower has property or whether he has no property, he may collect from the guarantor first.

And we answer: In the Mishna,

something is missing, and this is what it teaches,

and it should be recited as follows:

One who lends to his fellow through a guarantor—

he may not collect from the guarantor

first; rather, only if the borrower has nothing with which to pay may he then collect from the guarantor.

And if he said

the lender at the time of the lending:

“On condition that I collect from whomever I wish”—

he collects from the guarantor,

and he does not need first to summon the borrower to court.

In what circumstance are these words said—

when the borrower has no assets; but if the borrower has assets—

he may not collect from

the guarantor.

And a kablan

who intermediates in the loan and says to the lender, “Give him the loan, and I will pay you,”

even though the borrower has assets—

if the lender wishes,

he collects from the kablan.