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Shabbat Parashat Vayechi| 5766

Pninat Mishpat

Responsibility of Middleman and Partner in Corporation to Return a Loan(based on Piskei Din Rabbaniim - vol. XVI, pp. 167-169
Case: The plaintiff (= pl) lent money to his nephew (=bor), using the defendant (=def) as the vehicle to transfer the funds. Bor and def are partners in an incorporated business, and pl claims that the money was invested in that business. Def says that the money was for bor’s personal use. There are no receipts or evidence of what the money was used for. Bor is unwilling to pay pl or come to beit din, and pl demands that def take responsibility for the loan, especially since def gave pl a $90,000 check to cover the payment of the loan should bor notpay. Def says that that check was just as a reminder that there is a loan that needs to be paid, but he did not intend to become obligated to pay himself. Note: Def did not have sufficient funds in the account the check was drawn on to pay the debt.
Ruling: Def does not have responsibility as a borrower for a few reasons. First of all, there is no proof that the money was to be invested specifically in the business in which def has an interest. Secondly, the business is a corporation, which is set up in such a way that the officers and shareholders do not have personal liability to pay debts. Therefore, whoever lends money to such a body can only demand payment from the funds of the corporation, and if he expects personal payment from the interested parties then he has “put his money on the horns of a deer” (in other words, thrown out his money). This categorization of a corporation is accepted by halacha, to the extent that the Tzufnat Pa’aneiach (Shut III, 184) says that one can take interest from a bank, because there is no individual or group of individuals from whom to exact payment, just an amorphous, corporate entity.
 The question is whether def became a co-signer, which obligates him to repay the loan if it is not possible to receive payment from bor. The halacha is that there are two basic ways to become a co-signer: 1) He makes a guarantee at the time of the loan, and, thus, the loan is based on his assurance; 2) He makes a kinyan (act of acquisition or obligation) even after the loan takes place (Shulchan Aruch, Choshen Mishpat 129:1). In this case, neither condition was met. The check was not given at the time of the loan, and giving the check in and of itself is not an act of kinyan. There should have been either a kinyan sudar or situamta, which is the classic act of formalization used by society in that context. In the context of co-signers, that is to sign a document of accepting co-signer status, but that was not done. We might add that pl should have imagined that def’s bank account did not have $90,000 in liquid funds, and his failure to check the matter is an indication that he did not consider the check a serious assurance of payment.
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This edition of
Hemdat Yamim is dedicated to the memory of
R’ Meir ben Yechezkel Shraga Brachfeld o.b.m.

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