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Shabbat Parashat Vayeilech 5780

P'ninat Mishpat: Extent of Guarantee

(condensed from ruling 76033 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl) is a money changer, who over years changed large dollar checks for a yeshiva (­=ye) in Israel whose main funding came from America. Pl advanced funds to def before the checks cleared on a limited basis. At some point, in order to allow greater credit to def, pl demanded a 100,000 shekel personal check from the head of the yeshiva (=bor), which was to be cosigned by bor’s brother (=def). The guarantee is usually done by a signature inside a framed area on the check’s back. Def demanded to write an explanation next to his signature, saying that it is for dollar checks “shenitanim … (that are given? – see below).” After many months of subsequent use of pl’s services, a $28,000 check, for which the yeshiva received shekels, bounced. It turned out that ye ran out of funds and is now bankrupt. Since bor does not have money to pay, pl wants to receive payment from def. Def responds that he agreed to guarantee only the checks given at the time he obligated himself and not for the future. Pl says that it does not make sense that def would not know that the arrangement continued to be used into the future and that pl was relying partially on def’s guarantee when advancing money. Def denies knowing, saying he thought there was a specific issue at the time.    


Ruling: If pl and bor thought that def had obligated himself in an open-ended manner and def did not have that in mind, would def be obligated? Arvut (being a guarantor) is something which one becomes obligated in only based on his intention (as he does not naturally receive any benefit). Therefore, it is impossible to be obligated without intention, irrespective of what the other parties thought. 

The language of def’s commitment can be understood either as being obligated for those that are “being given” or “have been given.” When a written obligation can be understood in an expansive or limited way, we say that the one who needs the document to provide him rights has the burden of proof (Ketubot 83b). This is based on the idea of not extracting money based on doubt, which works here against pl.

There are some circumstantial indications that def is not telling the truth about not knowing. However, it is not conclusive, in which case, we do not obligate an arev based on doubt (see Maharik 133; Aruch Hashulchan, Choshen Mishpat 131:6). One of the dayanim sees another reason for def not to be obligated broadly. That is the concept that an arev who accepts arvut in such a way that he was not responsible for the giving of the money by the lender, is not bound (Tur, CM 131, based on the Rambam, Malveh 25:7). The other dayanim reason that over time, def’s understood obligation was likely a factor in pl’s continued advancing of money.

It is unclear whether pl claimed in a definite way that def knew that his guarantee was for future payments as well. If there were a definite claim, def would be required to take an oath, and in our days, that is replaced by a compromise. However, since there is one witness who claims that the arvut was explicitly limited, that testimony undoes the need for an oath (Rama, CM 87:6).
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