Babylonian Talmud: Tractate Baba Bathra

Folio 174a

RABBAN SIMEON B. GAMALIEL SAID: IF THE BORROWER HAS PROPERTY, PAYMENT MAY BE EXACTED neither from the one nor from the other.¹

Rabbah b. Bar Hana said in the name of R. Johanan: Wherever Rabban Simeon b. Gamaliel taught in our Mishnah, the halachah is in agreement with his ruling²  except [in the cases of] 'guarantor',³  'zidon'⁴  and the 'latter proof'.⁵

R. Huna said: [Should one say], 'Lend him [a sum of money] and I [shall be] guarantor'. 'Lend him and I [shall] repay [you]', 'Lend him and I [shall be] liable [for the loan]', [or] 'Lend him and I [shall] give [it back to you]' — all these are expressions of guarantee.⁶  [If, however, one said], 'Give him [a sum of money] and I [shall be] kabbelan'.⁷  'Give him and I shall repay [you]', 'Give him and I [shall be] liable [for the loan]', [or] 'Give him and I [shall] give [it back to you]' — all these are expressions of kabbelanuth.⁸  The question was raised: What [is the law if one said], 'Lend him⁹  and I [shall be] kabbelan'⁷  [or], 'Give him and I [shall be] guarantor'?¹⁰  — R. Isaac replied: The expression of guarantee [has the force of a] guarantee; the expression of kabbelanuth¹¹  I [has the force of] acceptance.¹²  R. Hisda said: All of these are expressions of kabbelanuth, except [that] of 'Lend him [a sum of money] and I [shall be] guarantor'.¹³  Raba said: All of these are expressions of 'guarantee', except that of 'Give him and I [shall] give [it back to you]'.¹⁴

Mar b. Amemar said to R. Ashi: Father said thus: [If one said,] 'Give him [a sum of money] and I [shall] give [it back to you]', the creditor has no claim whatsoever against the borrower. The law,¹⁵  however, is not [so]; [for] a debtor cannot escape from the creditor unless [the guarantor] had taken [the money] with [his own] hand [from the creditor] and delivered [it to the borrower].

A certain judge once allowed a creditor to take possession¹⁶  of the property of the debtor before [that] debtor had been sued. [The matter having been brought to his notice,] R. Hanin the son of R. Yeba removed him.¹⁷  Said Raba: Who [would have been so] wise [as] to do such a thing if not R. Hanin the son of R. Yeba! He holds the opinion that a man's possessions are his surety, and we have learnt, IF [A MAN] LENDS [MONEY] TO ANOTHER ON A GUARANTOR'S SECURITY, HE MUST NOT EXACT PAYMENT FROM THE GUARANTOR, and this¹⁸  has been established [to mean that] the guarantor may not be called upon first.¹⁹

A certain guarantor of orphans²⁰  once paid the creditor before the orphans were sued.²¹  Said R. Papa: The repayment [of a verbal loan to] a creditor is a commandment, and orphans²²  are not subject to the performance of commandments.²³  But R. Huna son of R. Joshua said:²⁴  It may be assumed [that] he²⁵  deposited with him²⁶  [some] bundles [of valuables].²⁷

1. Lit., 'whether this or this, payment from them shall not be exacted', neither from the guarantor not from the kabbelan.
2. Lit., 'like him'.
3. The law just quoted from our Mishnah. Payment, contrary to the ruling of Rabban Simeon b. Gamaliel, may be exacted from a kabbelan, though the debtor has property.
4. V. Git. 74a.
5. V. Sanh. 31a
6. [H], security. Since the expression of lending was used the guarantor has thereby intimated that the other shall be the borrower. He has consequently to pay only in the case where the debtor has no property of his own.
7. V. supra note 2.
8. [H] 'acceptance'. By using the expression give and not lend he thereby gave the order and thus he makes himself in form the principal debtor. Consequently, whether the debtor possesses property or not, payment may be exacted from the kabbelan.
9. A sum of money.
10. I.e., the expression of lending was used together with that of kabbelanuth and the expression of give with that of guarantee.
11. V. note 10.
12. The expressions of 'lending' and 'giving', are of no consequence where the term denoting 'guarantee' or 'acceptance' was specifically mentioned.
13. Cf. p. 765, notes 8 and 10 supra. Since both expressions wore used, lending and guarantee.
14. Cf. loc. cit. note 10. Since the expression of 'giving' was used twice; much more so if the expressions of giving and kabbelanuth were used.
15. Lit., 'it'.
16. Lit., 'caused him to go down'.
17. He re-transferred the property to the borrower.
18. Lit., 'for us'.
19. Similarly, in the case of seizure of property (a person's surety), the debtor must be sued first before his possessions may be approached.
20. I.e., guarantor to a loan incurred by their father.
21. And after paying he desired compensation by the orphans. [So Rashb. Cur. edd. read 'before he informed them'. Had he, that is to say, informed them first and paid on their instructions, he would have been able to recoup himself. V. Yad Ramah.]
22. Minors under thirteen years of age.
23. The guarantor who discharged their father's debt and has thus become, so to speak, the creditor, cannot exact payment from them.
24. The reason why the orphans need not refund the guarantor is not that given by R. Papa, since orphans also are subject to the performance of such a commandment as that of paying their Father's debts (cf. 'Ar. 22a).
25. The father of the orphans.
26. The creditor.
27. As a security for his loan. The guarantor, consequently, should not have repaid the debt before obtaining the return of the valuables. Since he overlooked this, he has himself to blame, and there is no obligation on the part of the orphans to indemnify him. He may, however, sue them when they obtain their majority.

What [is the practical difference] between them?¹  — [The difference] between them is [the case] where the debtor admitted [liability],²  or³  where he was placed under the ban⁴  and died [while still] under the ban.⁵  [A message] was sent from Palestine:⁶  [Where one] was placed under a ban⁵  and died under the ban, the law is in accordance with [the view of] R. Huna the son of R. Joshua.⁷

An objection was raised: A guarantor who produced⁸  a bond of indebtedness⁹  cannot exact payment.¹⁰  If, however, it contains the entry,¹¹  'I¹²  received¹³  from you' he¹⁴  may exact payment.¹⁵  [Now], according to R. Huna the son of R. Joshua one can well understand [this law]¹⁶  to be applicable in the case where the debtor had admitted [liability].¹⁷  According to R. Papa.¹⁸  however, there is a difficulty!¹⁹  — There it is different; since²⁰  he²¹  took the trouble to write²²  for him, 'I received,'²³  for this [very object].²⁴

A certain guarantor to a gentile once paid the gentile before he sued the orphans.²⁵  Said R. Mordecai to R. Ashi:²⁶  Thus said Abimi of Hagronia²⁷  in the name of Raba: Even according to him who said [that the possibility that] bundles [of valuables were deposited with the creditor was] to be taken into consideration,²⁸  this is only applicable to²⁹  an Israelite,³⁰  but [in the case of] a Gentile, since he [invariably] goes [for payment] to the guarantor³¹  [the possibility that] bundles [of valuables were deposited with the creditor] need not be taken into consideration.³²  [The other]³³  said unto him: On the contrary; even according to him who said that [the possibility that] bundles [of valuables were deposited with the creditor] need not be taken into consideration, this is only applicable to³⁴  an Israelite, but [in the case of] gentiles, since their judges [invariably] go to the guarantor, [it may be taken for granted] that had not [the debtor] deposited with him³⁵  [some] bundles [of valuables] at the outset, he would not have accepted [any responsibility whatsoever].³⁶

AND SO SAID R. SIMEON B. GAMALIEL: WHERE [A MAN] IS GUARANTOR FOR A WOMAN IN [RESPECT OF] HER KETHUBAH ETC. Moses b. Azri was guarantor for the kethubah of his daughter-in-law. Now his son, R. Huna, was a scholar but in poor circumstances.³⁷  Said Abaye: Is there no one who would go and advise R. Huna to divorce his wife, so that she might go and collect her kethubah from his father, and then re-marry her?³⁸  'But,' said Raba to him, 'have we [not] learned that [the husband] MUST VOW TO DERIVE NO [FURTHER] BENEFIT FROM HER?' 'Does everyone who divorces [his wife]', said Abaye to him, 'do it³⁹  at a court of law?'⁴⁰  Finally, [however], it was discovered that he⁴¹  was a priest.⁴²  'This is just what people say', exclaimed Abaye, 'poverty follows the poor'.⁴³

Could Abaye have said such a thing?⁴⁴  Surely Abaye had said, 'Who is a cunning rogue? He who counsels to sell an estate, in accordance with R. Simeon b. Gamaliel'!⁴⁵  — [The case of] one's son is different, and [the case of] a scholar is [also] different. But, surely, he⁴⁶  [was only] a guarantor, and a guarantor for a kethubah, it has been definitely established,⁴⁷  is not responsible for payment? — He was a kabbelan.⁴⁸  This [reply] would be quite correct according to him who said that, though the husband had no property, a kabbelan for a kethubah is responsible for payment; what, however, can be replied according to him who said [that] he is responsible for payment [only] where the [husband]⁴⁹  has [property], but is not responsible for payment where the husband has not?⁵⁰  — If you wish, I might say: [R. Huna] did have property⁵¹  but it was struck with blast. And if you prefer, I might Say: A father in the case of his son always undertakes responsibility,⁵²  for it was stated: A guarantor for a kethubah is, in the opinion⁵³  of all, not responsible for payment;⁵⁴  a kabbelan for a creditor is, in the opinion of all, responsible for payment; [in the case, however, of] a kabbelan for a kethubah or a guarantor for a creditor, there is a dispute. [One] Master holds that he⁵⁵  is responsible only where the debtor has property, but if he has none, he is not responsible;⁵⁶  and the [other] Master holds that he⁵⁵  is responsible whether [the debtor] has, or has not any property. And the law [is that a guarantor] is responsible for payment in all⁵⁷  [cases],⁵⁸  with the exception of a guarantor for a kethubah who is not responsible for payment even though the husband possessed property. What is the reason? — He⁵⁹  was [merely] performing a religious act⁶⁰  and [the woman]⁶¹  had lost nothing.⁶²

R. Huna said: If a dying man consecrated all his property and then stated 'I owe⁶³  a maneh to X', he is believed, because it is known that no one would form a conspiracy against sacred property.⁶⁴  R. Nahman demurred: Would a person form a conspiracy against his children⁶⁵  and yet both Rab and Samuel stated that if a dying man said, 'I owe a maneh to X', if he [specifically] added, 'Give [it to him]', it is to be given, but if he did not [specifically] say, 'Give', it is not to be given,⁶⁶  from this it clearly follows [that] a person is wont to disclaim wealth for⁶⁷  his children;

1. R. Papa and R. Huna. Whatever the reason, the guarantor is not entitled to exact payment from the orphans!
2. While dying he stated that he had not deposited any valuables with the creditor.
3. Lit., 'or also'.
4. for refusing to obey an order of the court for the payment of the debt.
5. In both these cases it is obvious that the debtor had not entrusted the creditor with any valuables as a security for the loan. Hence, according to R. Huna, the orphans, whose duty it is to discharge their father's debts, must indemnify the guarantor. According to R. Papa. however, they are not obliged to pay even in such cases.
6. Lit., 'from there'.
7. That the guarantor who discharged the debt of such a debtor is entitled to exact payment from the orphans; since, in such a case, it is certain that no valuables were deposited by the debtor with the creditor.
8. Lit., 'from under whose hand goes out'.
9. Which ho received from the creditor on payment of the debt incurred by the father of the orphans.
10. from the orphans, while they are still minors; since it is possible that he never repaid the loan, but accidentally found the bond which the creditor may have lost. When, however, the orphans obtain their majority they may be sued by the guarantor who, on taking the required oath, must be duly compensated.
11. Lit., 'written in it'.
12. The creditor.
13. The amount of the debt.
14. The guarantor.
15. In this case it is certain that the bond was not found by him but that it was delivered to him by the creditor.
16. That the guarantor may exact payment from the orphans where the receipt for the debt is entered on the bond.
17. V. supra p. 767. n. 7.
18. Who holds that orphans are not obliged to discharge the debts of their father.
19. Why should the orphans be made to indemnify the guarantor?
20. Cf. BaH, a.l.
21. The creditor.
22. Lit., 'and wrote'.
23. I.e., he has given him a receipt for the amount received.
24. In order that the guarantor may become the legal possessor of the bond. The amount now due to him can no longer be regarded as a verbal loan but as one secured by a written bond. R. Papa exempts orphans from the payment of a verbal loan only, but not from that which is secured by a bond. The payment of such a bond on the part of the orphans is obligatory.
25. Whose father was the debtor.
26. When the claim of the guarantor for compensation from the orphans was submitted to him for decision.
27. [A suburb of Nehardea, v. Obermeyer, op. cit. 265 ff.]
28. V. supra 174a (end), and notes.
29. Lit., 'these words',
30. Who knows the law that before calling upon the guarantor to pay, the creditor must first approach the debtor. Hence it is possible that valuables might have been deposited with him by the debtor.
31. V. supra 173b.
32. As the debtor well knows that the gentile would, in any case, exact payment from the guarantor, who would not entrust him with any valuables which would only enable the gentile to collect the debt twice.
33. R. Ashi.
34. V. p. 768, n. 15.
35. The guarantor.
36. Knowing full well that the creditor would exact payment from him. Hence, he cannot recoup himself from the orphans while they are still minors. Cf. p. 767. n. 15 end.
37. Lit., 'and the thing was pressing him'.
38. And thus come into the possession of some money.
39. Lit., 'divorce'.
40. The divorce could be arranged in the presence of witnesses out of court where no one would compel the husband to vow that he would derive no further benefit from his wife.
41. R. Huna.
42. Who is forbidden to marry a divorced woman.
43. B.K. 92a, Hul. 105b.
44. That R. Huna should be so advised.
45. V. supra 137a. How then could he have contemplated giving such advice to R. Huna.
46. R. Huna's father.
47. Rashal. Lit., 'established for us', v. infra.
48. V. Glos.
49. Lit., 'to him'.
50. Since R. Huna was poor, he could not have been the possessor of any property. His father, consequently, though a kabbelan, could not have become liable for the payment of the kethubah.
51. At the time his father undertook to be kabbelan.
52. Even where the son is destitute.
53. Lit., 'words'.
54. The reason is given infra.
55. The guarantor.
56. Since no one would guarantee a loan where it is known that the debtor has no means wherewith to meet his obligations. A guarantee in such a case must not, therefore, be taken seriously.
57. V. BaH and Rashal, a.l.
58. Whether the debtor, has or has no property.
59. The guarantor.
60. By his guarantee he was helping to bring about the marriage of the parties. A guarantee in a matrimonial affair is not to be taken seriously as pledging actual payment, but as a mere expression of confidence in the honesty and integrity of the party concerned.
61. Who, it is assumed, always prefers married life to spinsterhood.
62. It is certain that even if she had known that her kethubah would not be paid, she would still have consented to the marriage. In the case of a loan, however, it is clear that had it not been for the guarantee, given by the guarantor, the creditor would not have risked his money. In the latter case, therefore, the guarantor is liable.
63. Lit., 'in my hand'.
64. Hence, his statement is accepted, and the maneh he mentioned is to be paid to the creditor named.
65. To deprive them of their due in favour of a stranger.
66. Though ho clearly admitted liability.
67. Lit., not to satisfy'. i.e., a person is in the habit of concealing the wealth of his children in order to ward off envy.