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Shabbat Parashat Mishpatim | 5770
Hemdat HaDaf HaYomi: Three Types of Guarantors (174a)Rav Ofer Livnat
Shevat 23-29, Bava Batra 170-176
This week B"H the learners of the Daf Hayomi will finish Masechet Baba Batra. The last few pages deal with the laws of a guarantor. From the Gemara, it appears that there are three types of guarantors:
1. Arev (regular guarantor)
3. Kablan who handles the transaction
In a case of a regular guarantor, the lender must first demand the payment from the borrower. If he cannot collect the debt from the borrower, then he can request from the guarantor. However, if the guarantor is defined as a kablan, then the lender may initially demand the debt from either the borrower or the guarantor, as he chooses.
These rules are true when the lender gave the money directly to the borrower, and the guarantor agreed to be either a regular guarantor or a kablan. However, if the kablan receives the money from the lender and passes it on to the borrower, then the lender must demand the debt from him and he cannot demand it from the borrower. Nevertheless, if the kablan is unable to pay, the Shulchan Aruch (Choshen Mishpat 129, 19) rules that the lender can demand the debt from the borrower according to the principle of Rabbi Natan, that a debtor can collect the debt not only from the person who owes him, but also from someone who owes the person who owes him.
The Achronim disagree as to the exact status of a kablan who handled the money himself. According to the Tumim (ibid, 17), a kablan who handled the transaction is still considered a type of guarantor. Therefore, as long as the lender hasn't demanded the debt from him, he cannot demand it from the borrower. The Ketzot Hachoshen (7) disagrees. He claims that when a kablan handles the money himself, he is actually borrowing the money from the lender, and is subsequently lending it to the borrower. Therefore, according to the Ketzot, even if the lender did not demand the debt from him, he can still demand that the borrower pay him, as the borrower actually borrowed the money from him.
The Netivot Hamishpat (14) suggests an intermediate approach. He agrees in principle with the Tumim that a kablan who handled the money himself is still considered a type of guarantor and has not turned into a borrower and a lender as the Ktzot stated. Nevertheless, the Netivot claims that even if the lender has yet to demand payment, the kablan may still demand from the borrower to pay the lender, as he didn't intend for himself to be automatically responsible for the payment of the loan. If, however, the borrower does not pay on his own, then the lender can demand from the kablan directly.
When a kablan handles the money himself, the lender has to initially demand the debt from him and not from the borrower. According to the Ketzot, this kablan has turned into a borrower who borrowed money and lent it to someone else. According to the Tumim and the Netivot, this kablan has not turned into a borrower, but rather he is a special kind of guarantor who the lender must turn to first and cannot go to the borrower directly.
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