We begin our study of the laws concerning guarantors for loans. The fundamental principle states that one cannot directly approach the guarantor first; one must first approach the borrower. Only if the borrower lacks the means to repay the debt may one then turn to the guarantor. However, if an explicit stipulation was made at the outset, allowing the lender to approach whomever they choose, then the Mishnah permits approaching the guarantor first.
Hanan taught that this rule applies only when the borrower possesses no real estate. If the borrower does possess real estate, then even with an explicit stipulation, the lender cannot collect from the guarantor first; they must first seize the real estate that was originally earmarked for the loan. The Mishnah’s latter clause supports this, stating that Rabban Shimon ben Gamliel held that even if the borrower possesses real estate, one cannot collect from the guarantor first. This implies that Rabban Shimon ben Gamliel saw no distinction regarding the borrower's assets; in all cases, the borrower must be approached first. The Gemara clarifies that the Mishnah's initial statement implies a missing clause, and its true interpretation is as follows: If a person lent money to a friend with a guarantor, one cannot go to the guarantor first but must go to the borrower. However, if a stipulation was made to go to whomever the lender wishes, then the lender can go to the guarantor first. This applies only when the borrower has no assets. If the borrower does have assets, the guarantor cannot be approached first.
A stronger type of guarantor is called an Arev Kablan. This is a guarantor who accepts a greater degree of responsibility. If one is an Arev Kablan, then even if the borrower possesses money or real estate, the lender can go directly to the Arev Kablan to collect, even without an explicit stipulation. The Arev Kablan is "on the hook" no matter what; the lender can approach them first, regardless of the borrower's assets or any prior stipulation.
Rabban Shimon ben Gamliel, however, disagrees. He maintains that if the borrower has assets, then whether the guarantor is a regular guarantor or an Arev Kablan, the lender cannot approach the guarantor first. They must go to the borrower first. Thus, the core dispute between the first opinion (Tanna Kamma) and Rabban Shimon ben Gamliel lies in the case of an Arev Kablan. The Tanna Kamma holds that with an Arev Kablan, one can go directly to them even without a stipulation, while Rabban Shimon ben Gamliel holds that if the borrower has assets, one must still go to the borrower first.
To summarize the Tanna Kamma's view: If it's a regular guarantor and an explicit stipulation was made, everyone agrees that one can go to the guarantor first if the borrower has no assets. The dispute regarding the Arev Kablan concerns a scenario without an explicit stipulation. The Tanna Kamma says that without a stipulation, one can go to the Arev Kablan first, while Rabban Shimon ben Gamliel says no, one must still go to the borrower first if the borrower has assets. The halacha follows the opinion that one can go straight to the Arev Kablan, even without a stipulation, if the borrower has no assets.
The Gemara then delves into the specific language that defines a person as a regular guarantor versus an Arev Kablan. If the guarantor says, "Lend him money, and I guarantee," or "Lend him, and I will pay," or "Lend him, and I am liable," or "Lend him, and I will give," all these phrases constitute the language of a regular guarantee. However, if the guarantor uses the phrase "Give him," instead of "Lend him," and then adds, "and I am an Arev Kablan," or "and I will pay," or "and I am liable," or "and I will give," these all constitute the language of an Arev Kablan. The distinction lies in the word "give" (תן לו). When one says "give him," it implies that the guarantor is effectively acting as the lender, instructing the actual lender to disburse the money on their behalf. In such a case, the guarantor becomes the primary obligor, and the lender can approach them directly, even without stipulations, because it is as if the guarantor themselves gave the loan.
A further question arises when the guarantor uses mixed terminology. For example, "Lend him, and I am an Arev Kablan," or "Give him, and I am a guarantor." Rabbi Yitzchak states that if the word "guarantee" (ערבות) is used, it's a regular guarantee, and if the word "kablan" (קבלנות) is used, it's an Arev Kablan. One term is sufficient. However, another opinion holds that all these phrases, except for "Lend him, and I guarantee," constitute an Arev Kablan. To be a regular guarantor, one must explicitly use both "lend him" and "I guarantee." Any other combination, such as "liable" or "give," makes it an Arev Kablan. Rava offers a third view: all phrases are regular guarantees, except for "Give him, and I will give," which is an Arev Kablan. He argues that to be an Arev Kablan, the language must clearly indicate a primary obligation, such as "Give him, and I will give," or "Give him, and I am an Arev Kablan."
The Gemara then introduces a deeper distinction for an Arev Kablan. Beyond merely determining who is approached first, there is a case where the borrower is entirely removed from the obligation. In other types of guarantees, even if the guarantor pays, they can still seek reimbursement from the borrower. However, in this specific case, if the guarantor pays, they cannot seek reimbursement from the borrower. It is as if the guarantor themselves lent the money. Consequently, if the Arev Kablan cannot pay, the lender cannot then turn to the original borrower. This only occurs if the guarantor physically took the money from the lender and then personally transferred it to the borrower. In such a scenario, the borrower is entirely absolved, as the transaction is deemed to be directly between the guarantor and the lender.
An interesting case illustrates this principle. A judge immediately seized the assets of a borrower to pay the lender, without first even speaking to the borrower. Rav Hanan bar Rava sought to remove this judge from his position. However, Abaye praised the judge, arguing that the judge acted correctly. Abaye's reasoning was based on the principle that a person's money is considered like a guarantor for their debts. Just as one cannot approach a guarantor before approaching the borrower, one cannot seize a person's money before speaking to the person themselves. Therefore, the judge was wrong to seize the assets without first addressing the borrower.
Another complex scenario involves orphans. A father borrowed money with a guarantor and then died, leaving minor orphans. The guarantor paid the lender before approaching the orphans. The question is: what is the orphans' obligation to the guarantor? Since they are minors, can the guarantor demand payment from them, or must he wait until they reach adulthood? One opinion holds that the guarantor cannot demand payment until the orphans become adults. The guarantor's claim is based on the fact that he fulfilled a mitzvah by paying the father's debt. However, since the original loan document (shtar) was with the father, and the guarantor now claims a new debt based on his payment, the orphans, being minors, cannot defend themselves. They might claim that their father already paid the debt, or that the guarantor was not authorized to pay. Therefore, the guarantor must wait until they are adults and can properly respond to his claim.
Rabbah bar Rav Huna, citing Rav Yehoshua, offers a different reason for waiting. He argues that the issue is not the mitzvah aspect, but rather a concern that the father might have already given the lender collateral or paid the debt before his death. The minor orphans are incapable of defending themselves by making such a claim. They do not know if their father paid, and thus cannot assert that the debt is already settled. Therefore, the guarantor must wait until they are adults, at which point they can investigate and defend themselves.
The practical difference between these two reasons emerges in a specific case: if the father, on his deathbed, explicitly admitted in front of witnesses that he had not paid the debt. According to the first opinion (that it's a mitzvah to pay the debt, but minors cannot be forced), the orphans would still not be obligated to pay the guarantor until they reach adulthood, as they are not obligated to fulfill mitzvot in this manner while minors. However, according to the second opinion (that the concern is the orphans' inability to defend themselves), if the father explicitly admitted the debt was unpaid, then this concern is removed. In such a case, the orphans, even as minors, would be obligated to pay the guarantor, as there is no longer any doubt about the debt's existence.
The Gemara then presents a ruling from Eretz Yisrael: If the father admitted the debt on his deathbed, the orphans are obligated to pay the guarantor even while minors. This aligns with the second opinion. The ruling from Eretz Yisrael further clarifies that if the lender (the original creditor) writes on the loan document (shtar) that he has been paid by the guarantor, this transforms the debt. By writing this, the lender effectively transfers his rights and obligations under the shtar to the guarantor. Now, the debt is effectively between the guarantor and the orphans. Since the guarantor holds a shtar (which now functions as his claim), he can collect from the orphans, even while they are minors, because the shtar provides clear evidence of the debt, and the concern about their inability to defend themselves is mitigated.
Finally, the Gemara discusses a case where the guarantor guaranteed a loan from a non-Jew. If the father borrowed from a non-Jew, died, and the guarantor (a Jew) paid the non-Jew before approaching the orphans, what is the law? Normally, one must first approach the borrower's estate. However, in this case, the law is different. When the lender is a non-Jew, we do not suspect that the borrower might have already paid the debt. Why? Because a non-Jewish lender, under their laws, would typically go directly to the guarantor first. Therefore, if the borrower had paid, the non-Jew would not have pursued the guarantor. Since the non-Jew did pursue and was paid by the guarantor, it is clear the borrower had not paid. Consequently, the guarantor can immediately claim payment from the orphans, even while they are minors, because there is no concern that the father might have already paid the non-Jewish lender.
An opposing view argues the contrary: even if we normally do not suspect a payment in a non-Jewish loan, here we should. This is because a non-Jewish lender typically demands collateral from the guarantor. If the guarantor agreed to guarantee the loan, it implies that the guarantor received collateral from the borrower. Therefore, when the guarantor now demands payment from the orphans, we suspect that the guarantor has already been compensated by the collateral received from the father. Thus, the guarantor cannot collect from the orphans until they are adults and can clarify whether such collateral was indeed given. This presents two distinct approaches to the case of a guarantor paying a non-Jewish lender on behalf of orphans.