Bava Batra 173b (קעג:) — the Talmud in English

And if he said to him

the lender:

“On the condition that I may collect from whomever I wish,”

meaning that he 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,

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

The Gemara will explain that the Mishna’s statement here requires an addition: In what case is this said? When the borrower has no property; but if the borrower has property, the lender may not collect from the guarantor. But in the case of a kabbalan guarantor [i.e., one who says to the lender: “Give him the loan, and I will pay you”], even if the borrower has property, the lender may collect from the kabbalan.

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

in either case,

whether he is an ordinary guarantor or a kabbalan guarantor,

he may not collect first from the guarantor

but must collect from the borrower’s property.

And Rabban Shimon ben Gamliel would likewise say: With regard to a guarantor for a woman’s ketuba,

one who accepted responsibility to pay a woman the ketuba that her husband wrote for her, if the husband would not have the means to pay,

and her husband divorced her

and had no property, so that the guarantor was required to pay her ketuba,

he must have her prohibited by vow from deriving benefit from him,

meaning that the guarantor does not pay her ketuba until her husband has prohibited her by a vow, made with the consent of the community and one that cannot be dissolved, from deriving benefit from him, so that he will not be able to remarry her, because we are concerned

lest they make

the husband and his wife

a fraudulent collusion

an agreement involving deception

concerning this person’s property,

i.e., the guarantor’s property: her husband will divorce her so that she can collect her ketuba from the guarantor,

and he will remarry his wife,

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

Gemara:

At first, the Gemara understood that the statement in the Mishna, “He may not collect from the guarantor,” means that he may not collect from the guarantor at all. The guarantee is effective only in a case where the borrower died or fled, in which case the lender collects from the guarantor. But if the borrower is present when the lender demands payment of his debt, since the guarantor has presented the borrower before us, the guarantor 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 present? After all, the borrower is not paying the debt.

Rabba and Rav Yosef both say:

Because the guarantor can say to the lender:

“I returned a person to you; return a person to me.”

I was responsible for the borrower, and I have returned the borrower to you. I was responsible for the borrower in the sense that, if he died or fled, I would pay you the debt from my own funds. Now I am returning the borrower to you, and you can bring him to court; I am exempt from the debt.

Rav Naḥman strongly objected to this: 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—

is Persian law.

It is the law of the Persians.

The Gemara understood Rav Naḥman’s statement to mean that it was the practice of the Persians to judge in this manner, so that the guarantor could say to the lender that he had returned the borrower to him.

And we raise an objection:

On the contrary,

the Persians

go after the guarantor,

meaning that they pursue the guarantor and collect from him even when the borrower has property.

Rather,

Rav Naḥman meant that the Mishna stated a law resembling that applied in

the Persian court, which gives no rationale for its rulings!

The Persians issue improper rulings, and this ruling as well—that the guarantor is exempt from paying when the borrower is present—is improper, since that is precisely why he became a guarantor: if the borrower has no property with which to pay the debt, the guarantor is to pay the lender the money in place of the borrower.

Rather, Rav Naḥman said:

This is how the Mishna’s statement should be explained:

What

is the meaning of

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

The guarantor accepted responsibility only on the condition that the borrower would not pay the debt for any reason—whether because he died, because he is not present, or because he lacks the ability to pay. In such a case, the lender may collect from the guarantor. But as long as it is possible to collect the debt from the borrower, the lender may not collect from the guarantor.

It was taught likewise:

With regard to one who lends money to another through a guarantor—

he may not first summon

the guarantor. And if the guarantor said, “On the condition that I may 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 serve as guarantor for the loan, without performing any act of acquisition?

As it is written [Genesis 43:9] concerning Judah, who said to Jacob our Patriarch:

concerning Judah, who said to Jacob our forefather:

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

Rav Ḥisda strongly objected:

How can it be proven from there that one becomes obligated through a statement alone to serve as guarantor?

Is

that not a case of a

kabbalan guarantee, as it is written: [Genesis 42:37]:

[there]:

“Place him in my charge

and I will return him to you!”

A kabbalan guarantor, who acts as an intermediary between the borrower and the lender, is more obligated than an ordinary guarantor. In the case of a kabbalan guarantor, the lender has no legal claim against the borrower at all, but only against the kabbalan. Therefore, perhaps it is only when the guarantor is a kabbalan that he becomes obligated, since he acts as an intermediary in the loan itself; but an ordinary guarantor may not become obligated through a statement alone.

Rather, Rabbi Yitzḥak said: From here

it may be proven that one becomes a guarantor through a statement alone, as it is stated [Proverbs 20:16]:

“Take

[as collateral]

his garment

[the guarantor’s garment]

because

[he has made himself]

a guarantor

[through a statement alone, for a person who is]

a stranger, and for a foreign woman take his pledge”

[take collateral from him] .

This indicates that it is permitted to take collateral from one who became a guarantor for another.

And it says

another verse [there 6:1–3]:

“My son, if you have guaranteed

[a monetary guarantee]

for your fellow, if you have given your handshake to a stranger,

[or]

if you have been ensnared by the words of your mouth, captured by the words of your mouth

[by insulting and reviling him],

do this, then, my son, and save yourself

[from these two matters: if]

you have come into the hand of your fellow

[meaning, you owe him money]

humble yourself

[release your hand to him and give him his money],

and urge your fellow

[and, because you insulted him, get many friends involved and ask him for forgiveness] .”

This is the meaning of the verse: “If you have guaranteed for your fellow”—

if he has money in your possession,

that is, you owe him money because you are his guarantor—“humble yourself,”

release your hand to him,

meaning, open your hand to pay him his money

, and if not,

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

urge your fellow

to ask him to forgive you.

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

Another matter concerning the law of guarantees:

Ameimar said: The guarantor who becomes obligated

to pay the borrower’s debt if he does not pay—the law concerning this is

a dispute between Rabbi Yehuda and Rabbi Yosei.

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

meaning, if a person promises money to another if such and such should occur, even though he believes that he will not actually have to pay, this constitutes an acquisition and an obligation—in his view,

the guarantor becomes obligated.

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

in his view,

the guarantor does not become obligated,

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

despite the fact that an asmachta does not obligate him.

Rather, Rav Ashi said:

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

through the benefit he derives from the fact that the lender relies on him

the lender trusts him and relies upon him sufficiently to lend to the borrower—

he resolves

the guarantor in his heart

to obligate himself

and binds himself wholeheartedly so that the lender will lend to the borrower at his behest , and he becomes obligated for the debt as though he himself had borrowed the money .

We learned in the Mishna:

And if he said, “On the condition that I may collect from whomever I wish,”

he may collect from the guarantor.

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

that the lender collects from the guarantor

only

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 from the fact that the latter clause teaches, Rabban Shimon ben Gamliel says: “If the borrower has property”—

“he may not collect from the guarantor,” it follows

that one may 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: the lender may collect from the guarantor first.

And we answer: The Mishna is incomplete,

and this is what it teaches:

and it should be amended as follows:

With regard to one who lends money to another through a guarantor—

he may not collect from the guarantor

first. Rather, he may collect from the guarantor only if the borrower has no means with which to pay.

And if he said

at the time of the loan:

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

he may collect from the guarantor,

and he need not first bring the borrower to court.

In what case is this said?—

When the borrower has no assets, but the borrower has assets [unclear: the wording appears contradictory]—

he may not collect from

the guarantor .

And a kablan,

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

even though the borrower has assets,—

if the lender wishes,

he may collect from the kablan.