Bava Batra 174a — the Talmud in English

Rabban Shimon ben Gamliel says: If the borrower has assets -

both this one and that one

whether the guarantor or the kablan

he may not collect from them

first; rather, he collects from the assets of the borrower.

Rabba bar bar Hana said in the name of Rabbi Yohanan: Everywhere that Rabban Shimon ben Gamliel taught in our Mishna -

the halakha is like him

even though it is the opinion of an individual sage.

Except for

three places in which the halakha is not like him, and these are they:

A.

A guarantor -

this is the law stated here: We rule that the lender may collect from a kablan guarantor even though the borrower has assets, in accordance with the opinion of the Sages who disagree with Rabban Shimon ben Gamliel.

B.

And Zidon,

this is the law discussed incidentally to an event that took place in Zidon concerning a condition in a bill of divorce [Gittin 74a]. The Sages and Rabban Shimon ben Gamliel disagreed: If he stipulated that the bill of divorce would take effect if she gave him a particular object, may she fulfill the condition by giving the value of the object? The halakha is according to the Sages, that she may not fulfill the condition by giving the value of the object.

C.

And the last proof,

the last dispute in which he disagreed with the Sages, concerning bringing proof to the court [Sanhedrin 31a]: If a person brings proof to the court after he admitted that he had no proofs, this proof is not relied upon, although according to Rabban Shimon ben Gamliel it is relied upon.

Rav Huna said:

How does a person become a guarantor, and how does he become a kablan? If he said:

“Lend him, and I am a guarantor,”

or

“Lend him, and I will repay,”

or

“Lend him, and I am liable,”

or

“Lend him, and I will give” -

all of them are expressions of guaranteeing,

because he used the expression “lend him,” whose meaning is that the recipient will be the borrower, and he undertakes to guarantee him, that if the recipient does not repay, he will repay him.

And if he said:

“Give it to him, and I am a kablan,”

or

“Give it to him, and I will repay,”

or

“Give it to him, and I am liable,”

or

“Give it to him, and I will give” -

all of them are expressions of kablanut,

because he used the expression “give it to him,” whose meaning is: Give it to him on my account; and since the lender gave to the recipient at his instruction, he became a kablan for the loan.

They raised a dilemma before them:

If he said in the expression:

“Lend him, and I am a kablan,”

or

“Give it to him, and I am a guarantor; what is the law?”

Is what determines whether he is a guarantor or a kablan what he says, using the expression “lend him” or the expression “give it to him,” or perhaps what determines it is what he says, using the expression “guarantor” or the expression “kablan”?

Rabbi Yitzhak said:

If he mentioned

the expression of guaranteeing -

its meaning is

guaranteeing,

and if he mentioned

the expression of kablanut -

its meaning is

kablanut.

It makes no difference whether he mentioned in them the expression “lend him” or the expression “give it to him.”

Rav Hisda said: All of them are expressions of kablanut,

even if he said: “Give it to him, and I am a guarantor,” or “Lend him, and I will repay,” or “Lend him, and I am liable,” or “Lend him, and I will give you,”

except

outside

“Lend him, and I am a guarantor,”

because in that statement he mentioned both the expression “lend him” and the expression “guarantor”; only in this manner did he exclude himself from the category of kablanut.

Rava said: All of them are expressions of guaranteeing,

even if he said: “Lend him, and I am a kablan”; “Give it to him, and I will repay”; or “Give it to him, and I am liable,” for the meaning of all these is: I will repay on his behalf if he himself does not repay, and one does not collect from the guarantor first, but from the borrower.

Except

outside

“Give it to him, and I will give,”

whose meaning is kablanut, since he mentioned the expression of giving both in the lender’s giving—“give it to him”—and in his own undertaking—“and I will give”—using the same expression in which he instructed him to deliver it to the recipient, and using that expression he accepted upon himself to repay it. And all the more so if he said: “Give it to him, and I am a kablan,” for this is as though he himself accepted the loan from the lender with a guarantee, and the lender may collect first from whomever he wishes. And the halakha is according to Rava.

Mar bar Amemar said to Rav Ashi: This is what Father said:

If he says:

“Give it to him, and I will give,”

there is

nothing for the lender against the borrower,

but the entire claim is against the kablan alone.

And we reject this:

It is not so;

the matter is not so, but

the borrower is not exempt from the lender until he takes and gives with his hand,

until the guarantor himself actually takes the money from the lender’s hand and gives it to the borrower; and then the lender claims only from the guarantor.

An incident:

There was a certain judge who assigned the lender to the borrower’s assets before he had brought a claim against the borrower,

there was a judge who assigned the lender to the borrower’s assets before he had demanded that the borrower repay the debt,

Rav Hanin son of Rav Yevai removed him,

Rav Hanin removed the lender from the borrower’s assets.

Rava said: Who is wise enough to do such a thing,

who is the sage who could do this, to remove the lender from the borrower’s assets,

if not

that he was the one who did this,

Rav Hanin son of Rav Yevai!

He holds

Rava:

A person’s assets become his guarantors,

a person’s assets become his guarantors, as it is stated [Proverbs 22:27]: “If you have nothing with which to pay, why should he [cause the lender to take your bed from beneath you.”

Therefore, the assets must be treated according to the law of a guarantor,

and we learned

in our Mishna:

“One who lends money to another through a guarantor” -

“he may not collect from the guarantor,” and it is established for us

that the meaning of the Mishna is

“he may not claim from the guarantor first.”

And since a person’s assets are like his guarantors, the lender is therefore not permitted to collect his debt from the borrower’s assets before he claims from the borrower that he pay, for perhaps the borrower has money in his possession with which to pay the debt.

The Gemara brings an incident concerning

a certain guarantor for orphans

whose father had borrowed during his lifetime, and he became a guarantor for the lender on his behalf,

who repaid it

who repaid

to the lender

after the borrower’s death,

before he informed them

before he informed

the orphans

that they should repay the debt; and after he repaid the lender from his own money, he came to claim the money from them.

Rav Pappa said:

After the guarantor paid the debt, he cannot claim from the orphans what he paid, because the orphans became obligated to the guarantor for a debt of an oral loan, for there is no document concerning the debt that they owe the guarantor, and their assets were not encumbered for payment of the debt. The obligation to pay a debt of an oral loan is only by virtue of

repayment of a creditor’s debt

being a mitzva,

and orphans

under the age of thirteen

are not capable

of performing a mitzva,

they are not obligated in mitzvot, and it is impossible to compel them to repay the debt, and only when they grow up can he bring a legal claim against them.

And Rav Huna son of Rav Yehoshua said:

the orphans are subject to the mitzva of repayment of a debt, but for another reason the guarantor does not collect the debt from them until they grow up and know how to make a claim and clarify their case, because

perhaps he handed him bundles of money

perhaps their father gave the creditor money or silver and gold as collateral at the time of his death, in order to exempt the guarantor, but he did not manage to take the document from the borrower. And we challenge: Since, for both reasons, the guarantor does not collect from the orphans until they grow up,