Bava Batra 173
וְאֶלָּא הָא דְּתַנְיָא: כְּשֵׁם שֶׁאֵין מוֹצִיאִין שְׁטַר חוֹב זֶה עַל זֶה – כָּךְ אֵין מוֹצִיאִין עַל אֲחֵרִים, בְּמַאי קָמִיפַּלְגִי?
The Gemara asks: And what of that which is taught in another baraita: Just as the two men named Yosef ben Shimon cannot produce a promissory note, this one against that one, so they cannot produce promissory notes against others, as those others can claim: I did not borrow from you but from the other Yosef ben Shimon, and somehow the note he was holding is in your possession? This baraita contradicts the mishna, from which it was inferred that one of the two men named Yosef ben Shimon can produce promissory notes to collect the debt from others. With regard to what principle do the mishna and baraita disagree?
בְּאוֹתִיּוֹת נִקְנוֹת בִּמְסִירָה קָמִיפַּלְגִי –
They disagree with regard to whether letters, i.e., the content of a promissory note, are acquired by merely transferring the document to a new owner. In other words, they disagree about whether or not a creditor can transfer his right to collect a debt to another by merely transferring the document to him.
תַּנָּא דִּידַן סָבַר: אוֹתִיּוֹת נִקְנוֹת בִּמְסִירָה; וְתַנָּא בָּרָא סָבַר: אֵין אוֹתִיּוֹת נִקְנוֹת בִּמְסִירָה.
The tanna of our mishna maintains that letters are acquired by transferring the document. There is no concern that the promissory note was inadvertently transferred from one Yosef ben Shimon to the other by being lost and then found, as explained earlier. Nevertheless, there is still the possibility that one Yosef ben Shimon deliberately transferred the promissory note to the other, transferring the right of collection to him. According to this tanna, the second Yosef ben Shimon is fully entitled to collect the debt by producing the promissory note. And the tanna of the baraita holds that letters are not acquired by transferring the document, so that even if one Yosef ben Shimon transferred his promissory note to the other, the new holder of the document is not entitled to collect the debt.
וְאִי בָּעֵית אֵימָא: דְּכוּלֵּי עָלְמָא – אוֹתִיּוֹת נִקְנוֹת בִּמְסִירָה, וְהָכָא בְּצָרִיךְ לְהָבִיא רְאָיָה קָא מִיפַּלְגִי – תַּנָּא דִּידַן סָבַר: אֵין צָרִיךְ לְהָבִיא רְאָיָה, וְתַנָּא בָּרָא סָבַר: צָרִיךְ לְהָבִיא רְאָיָה –
And if you wish, say that everyone, i.e., both the tanna of the mishna and the tanna of the baraita, holds that letters are acquired by transferring the document, and here they disagree with regard to whether or not the new holder of the promissory note is required to bring proof that the original creditor transferred it to him for collection, as opposed to his having received it for safekeeping or having found it by chance. The tanna of our mishna holds that the present holder of the document is not required to bring proof that the debt was transferred to him and therefore he can collect the debt through the promissory note in his possession. And the tanna of the baraita holds that he is required to bring such proof, and in its absence he cannot collect the debt with the document he holds.
דְּאִיתְּמַר: אוֹתִיּוֹת נִקְנוֹת בִּמְסִירָה; אַבָּיֵי אָמַר: צָרִיךְ לְהָבִיא רְאָיָה, וְרָבָא אָמַר: אֵינוֹ צָרִיךְ לְהָבִיא רְאָיָה.
This is as it was stated: Letters are acquired by transferring the document. Abaye says: The new holder of the document is required to bring proof that he has in fact acquired the right to collect the debt. And Rava says: He is not required to bring such proof; it is assumed that if he is holding the document it was transferred to him knowingly by the original creditor.
אָמַר אַבָּיֵי: מְנָא אָמֵינָא לַהּ? דְּתַנְיָא: אֶחָד מִן הָאַחִין שֶׁהַשְּׁטַר חוֹב יוֹצֵא מִתַּחַת יָדוֹ, עָלָיו לְהָבִיא רְאָיָה. מַאי, לָאו הוּא הַדִּין לְאַחְרִינֵי?
Abaye said: From where do I say that he is required to bring proof? This is as it is taught in a baraita: In the case of one of several brothers, heirs of an estate, who has a promissory note in his possession listing a debt owed to the deceased father, and he seeks to collect the debt for himself, it is upon him to bring proof that the document was transferred to him legally by his father in his lifetime, or that it was bequeathed to him specifically and he did not appropriate it from the other brothers. Abaye concludes from this: What, is the same not true for all others in a similar situation? In other words, whenever someone holds a promissory note that did not initially belong to him he is required to prove that he acquired it legally.
וְרָבָא אָמַר: שָׁאנֵי אַחִין, דְּשָׁמְטוּ מֵהֲדָדֵי.
And Rava said in response: Proof is not generally required in such a case. But the case of brothers who are heirs is different, as it is common for brothers who are co-heirs to seize property belonging to the estate from one another.
אִיכָּא דְּאָמְרִי, אָמַר רָבָא: מְנָא אָמֵינָא לַהּ? דְּתַנְיָא: אֶחָד מִן הָאַחִין שֶׁהַשְּׁטַר חוֹב יוֹצֵא מִתַּחַת יָדוֹ – עָלָיו לְהָבִיא רְאָיָה. אַחִין הוּא דְּשָׁמְטוּ מֵהֲדָדֵי, אֲבָל אַחְרִינֵי לָא.
There are those who say there is a different version of this exchange between Abaye and Rava. According to this version, Rava said: From where do I say that no proof is required? As it is taught in a baraita: In the case of one of several brothers, heirs of an estate, who has a promissory note in his possession listing a debt owed to the deceased father, and he seeks to collect the debt for himself, it is upon him to bring proof that the document was transferred to him legally by his father in his lifetime, or that it was bequeathed to him specifically and that he did not appropriate it from the other brothers. The implication is that it is only brothers who must bring such proof, as it is common for brothers who are co-heirs to seize property belonging to the estate from one another. But others in a similar situation do not have to bring proof that they acquired the promissory note legally.
וְאַבָּיֵי – אַחִין אִיצְטְרִיכָא לֵיהּ, סָלְקָא דַּעְתָּךְ אָמֵינָא: כֵּיוָן דְּשָׁמְטוּ מֵהֲדָדֵי – אֵימָא מִיזְּ(דְ)הַר זְהִירִי, וְלָא צְרִיכִי לְהָבִיא רְאָיָה; קָמַשְׁמַע לַן.
And how would Abaye counter this proof? He would say: There is no difference between brothers and anyone else; they all have to bring proof. The baraita specifies brothers because it was necessary for it to mention that case, as it might enter your mind to say that since it is common for brothers who are co-heirs to seize property belonging to the estate from one another, one might say that they are careful to prevent such attempts. And therefore, when brothers produce a promissory note, they are not required to bring proof that they obtained it legally, as it is assumed that the other brothers would not have allowed the note to escape their possession otherwise. To counter this, the baraita teaches us that brothers, too, must bring proof when they produce promissory notes.
וְאֶלָּא הָא דְּתַנְיָא: כְּשֵׁם שֶׁמּוֹצִיאִין הֵן שְׁטַר חוֹב עַל אֲחֵרִים – כָּךְ מוֹצִיאִין זֶה עַל זֶה; בְּמַאי קָמִיפַּלְגִי?
§ The Gemara returns to discuss the case of two men with the same name. But what about that which is taught in another baraita: Just as the two men named Yosef ben Shimon can produce a promissory note against others, so can they produce promissory notes against one another. This represents a third opinion, standing in opposition to both the mishna and the previous baraita. The Gemara asks: With regard to what do the mishna and first baraita on the one hand, and this baraita on the other, disagree?
בְּכוֹתְבִין שְׁטָר לַלֹּוֶה וְאַף עַל פִּי שֶׁאֵין מַלְוֶה עִמּוֹ קָמִיפַּלְגִי –
The Gemara answers: They disagree about whether or not a scribe may write a promissory note for a debtor even if the creditor is not with him.
תַּנָּא דִּידַן סָבַר: כּוֹתְבִין שְׁטָר לַלֹּוֶה, וְאַף עַל פִּי שֶׁאֵין מַלְוֶה עִמּוֹ; זִימְנִין דְּאָזֵיל לְגַבֵּי סָפְרָא וְסָהֲדֵי, וְאָמַר לְהוּ: כְּתֻבוּ לִי שְׁטָרָא, דְּבָעֵינַן לְמֵיזַף מִיּוֹסֵף בֶּן שִׁמְעוֹן חַבְרַי; וּבָתַר דְּכָתְבִי וְחָתְמִי לֵיהּ, נָקֵיטא לֵיהּ וְאָמַר לֵיהּ: הַב לִי מְאָה דִּיזַפְתְּ מִינַּאי.
The tanna of our mishna holds that a scribe may write a promissory note for a debtor even if the creditor is not with him. The Gemara explains: At times, it could happen that one of the men named Yosef ben Shimon goes to a scribe and to witnesses and says to them: Write a promissory note for me, as I wish to borrow money from another Yosef ben Shimon. And then, after they write the document and sign it for him, he will take it and say to the other Yosef ben Shimon: Give me the hundred dinars that you borrowed from me, as attested to in this document. That is the reason why the mishna rules that two people of the same name cannot collect a debt through a promissory note from one another, thereby preventing this occurrence.
תַּנָּא בָּרָא סָבַר: אֵין כּוֹתְבִין שְׁטָר לַלֹּוֶה, עַד שֶׁיְּהֵא מַלְוֶה עִמּוֹ.
By contrast, the tanna of the other baraita holds that a scribe may not write a promissory note for a debtor unless the creditor is with him and consents to the writing of the document. If one Yosef ben Shimon consents to the writing of the document before the other, they apparently trust one another, and there is no concern that the one holding the promissory note will defraud the other.
נִמְצָא לְאֶחָד בֵּין שְׁטָרוֹתָיו ״שְׁטָרוֹ שֶׁל יוֹסֵף בֶּן שִׁמְעוֹן פָּרוּעַ״ – שְׁטָרוֹת שְׁנֵיהֶם פְּרוּעִין וְכוּ׳. טַעְמָא דְּנִמְצָא, הָא לֹא נִמְצָא – מָצֵי מַפֵּיק; וְהָאֲנַן ״וְלֹא אַחֵר יָכוֹל לְהוֹצִיא עֲלֵיהֶן שְׁטַר חוֹב״ תְּנַן!
§ The mishna teaches: If a document is found among one’s documents stating: The promissory note against Yosef ben Shimon is repaid, and both men named Yosef ben Shimon owed this man money, the promissory notes of both of them are considered repaid, as it cannot be determined which debt was repaid and which is outstanding. The Gemara comments: The implication of the mishna is that the reason this man cannot collect his debt is that this note was found among his papers; but if it was not suddenly found, rather he was always aware of its existence, he could present a promissory note against one of the men named Yosef ben Shimon and collect the debt from him. The Gemara asks: But didn’t we learn earlier in the mishna: Nor can another present a promissory note against either of them?
אָמַר רַבִּי יִרְמְיָה: בִּמְשׁוּלָּשִׁין.
Rabbi Yirmeya said: This later line in the mishna is stated with regard to a promissory note in which the debtors Yosef ben Shimon are identified by having their names tripled, i.e., through mentioning the name of their respective grandfathers, as is explained at the end of the mishna.
וְנֶחֱזֵי תְּבָרָא – בִּשְׁמָא דְּמַאן דִּכְתִיב! אָמַר רַב הוֹשַׁעְיָא: בִּמְשׁוּלָּשִׁין בַּשְּׁטָר, וְאֵין מְשׁוּלָּשִׁין בַּשּׁוֹבָר.
The Gemara questions this explanation: But let us see in whose name the receipt, i.e., the note stating that Yosef ben Shimon’s debt has been repaid, is written. Why is there uncertainty as to which Yosef ben Shimon is referred to in the document? Rav Hoshaya said: The case is where the debtors are identified by having their names tripled in the promissory note, but the names are not tripled in the receipt.
אַבָּיֵי אָמַר, הָכִי קָאָמַר: נִמְצָא לַלֹּוֶה בֵּין שְׁטָרוֹתָיו ״שְׁטָרוֹ שֶׁל יוֹסֵף בֶּן שִׁמְעוֹן עָלַי, פָּרוּעַ״ – שְׁטָרוֹת שְׁנֵיהֶם פְּרוּעִין.
Abaye stated a different answer to this question, that the mishna is speaking about the debtor, not the creditor, and this is what it is saying: If a receipt is found among the debtor’s documents stating: The promissory note of Yosef ben Shimon against me has been repaid, and this debtor had borrowed money from both men named Yosef ben Shimon, the promissory notes of both of them are considered repaid, i.e., they are not valid for collection, as it cannot be determined which debt was paid and which one is outstanding.
כֵּיצַד יַעֲשׂוּ? יְשַׁלְּשׁוּ כּוּ׳. תָּנָא: אִם הָיוּ שְׁנֵיהֶם כֹּהֲנִים, יִכְתְּבוּ דּוֹרוֹת.
The mishna teaches: What should two people with the same name in a single city do in order to conduct their business? They should triple their names by writing three generations: Yosef ben Shimon ben so-and-so. If their grandfather’s names are identical and they have no prominent physical difference to indicate who is the one listed in the document, they write that the one referred to in the document is a priest, if that is the case. The Sages taught the following continuation of the mishna in a baraita: And if both of them were priests, they should write several generations of ancestors, until a divergence in names is found that can serve as a means of identification.
מַתְנִי׳ הָאוֹמֵר לִבְנוֹ: ״שְׁטָר בֵּין שְׁטָרוֹתַי פָּרוּעַ, וְאֵינִי יוֹדֵעַ אֵי זֶהוּ״ – שְׁטָרוֹת כּוּלָּן פְּרוּעִין. נִמְצָא לְאֶחָד שָׁם שְׁנַיִם – הַגָּדוֹל פָּרוּעַ, וְהַקָּטָן אֵינוֹ פָּרוּעַ.
MISHNA: In the case of one who says to his son before dying: One promissory note among the promissory notes in my possession is repaid, but I do not know which one, the promissory notes of all of those who owe him money are considered repaid, i.e., they are not valid for collection, as it cannot be determined which debt was repaid and which are outstanding. If there were found among his papers two promissory notes owed by one person, the one for the greater amount is considered repaid, and the one for the smaller amount is not considered repaid and can be collected; the debtor is favored in the case of an uncertainty.
גְּמָ׳ אָמַר רָבָא: ״שְׁטָר לְךָ בְּיָדִי, פָּרוּעַ״ – הַגָּדוֹל פָּרוּעַ וְהַקָּטָן אֵינוֹ פָּרוּעַ. ״חוֹב לְךָ בְּיָדִי, פָּרוּעַ״ – שְׁטָרוֹת כּוּלָּן פְּרוּעִין.
GEMARA: Rava says that if a creditor says to a debtor who borrowed money twice from him: One promissory note of the two that I have of yours in my possession is repaid, without specifying which one, the one for the greater amount is considered repaid, and the one for the smaller amount is not considered repaid, and can be collected. If the creditor said instead: The debt of yours that I have in my possession is repaid, all the promissory notes this creditor has from this debtor are considered repaid, as the term debt covers all the loans at once.
אֲמַר לֵיהּ רָבִינָא לְרָבָא: אֶלָּא מֵעַתָּה, ״שָׂדִי מְכוּרָה לָךְ״ – שָׂדֶה גְּדוֹלָה מְכוּרָה לוֹ; ״שָׂדֶה שֶׁיֵּשׁ לִי, מְכוּרָה לָךְ״ – כׇּל שְׂדוֹתָיו מְכוּרִין לוֹ?!
Ravina said to Rava: If that is so that when one makes an ambiguous statement it is interpreted to his detriment, does the same halakha apply to sales? If a seller of land writes a document for a purchaser stating: My field is hereby sold to you, without specifying which of his two fields he is referring to, is it the larger field that is sold to him? And if he writes a document for the purchaser stating: The field that I have is sold to you, is it so that all of his fields are sold to him, as the Hebrew word for field can refer to several fields as well as a single field?
הָתָם, יַד בַּעַל הַשְּׁטָר עַל הַתַּחְתּוֹנָה.
Rava explains: There, the holder of the document of sale is at a disadvantage, as it is he who seeks to take more property from the seller, and must accept the minimal meaning. Here too, in the case of the promissory notes, it is the holder of the document, the creditor, who seeks to collect more money from the debtor. Therefore, the creditor is at a disadvantage.
מַתְנִי׳ הַמַּלְוֶה אֶת חֲבֵירוֹ עַל יְדֵי עָרֵב, לֹא יִפָּרַע מִן הֶעָרֵב.
MISHNA: One who lends money to another with the assurance of a guarantor cannot collect the debt from the guarantor.
וְאִם אָמַר לוֹ: ״עַל מְנָת שֶׁאֶפָּרַע מִמִּי שֶׁאֶרְצֶה״ – יִפָּרַע מִן הֶעָרֵב. רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר: אִם יֵשׁ נְכָסִים לַלֹּוֶה – בֵּין כָּךְ וּבֵין כָּךְ לֹא יִפָּרַע מִן הֶעָרֵב.
But if the creditor said to the debtor: I am lending the money on the condition that I will collect the debt from whomever I wish, i.e., either the debtor or the guarantor, he can collect the debt from the guarantor. Rabban Shimon ben Gamliel says: If the debtor has property of his own, then whether in this case, where the creditor stipulated this condition, or that case, where he did not, he cannot collect the debt from the guarantor.
וְכֵן הָיָה רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר: הֶעָרֵב לְאִשָּׁה בִּכְתוּבָּתָהּ, וְהָיָה בַּעְלָהּ מְגָרְשָׁהּ – יַדִּירֶנָּה הֲנָאָה; שֶׁמָּא יַעֲשׂוּ קְנוּנְיָא עַל נְכָסִים שֶׁל זֶה, וְיַחְזִיר אֶת אִשְׁתּוֹ.
And so Rabban Shimon ben Gamliel would say: If there is a guarantor for a woman for her marriage contract, from whom the woman can collect payment of her marriage contract instead of collecting it from the husband, and her husband was divorcing her, the husband must take a vow prohibiting himself from deriving any benefit from her, so that he can never remarry her. This precaution is taken lest the couple collude [kenunya] to divorce in order to collect payment of the marriage contract from this guarantor’s property, and then the husband will remarry his wife.
גְּמָ׳ מַאי טַעְמָא? רַבָּה וְרַב יוֹסֵף דְּאָמְרִי תַּרְוַיְיהוּ: גַּבְרָא אַשְׁלֵימְתְּ לִי, גַּבְרָא אַשְׁלֵימִי לָךְ.
GEMARA: The mishna teaches: One who lends money to another with a guarantor cannot collect the debt from the guarantor. The Gemara at first understands that the mishna is ruling that a guarantor’s commitment is limited to when the debtor dies or flees. What is the reason the guarantor’s commitment is limited? Rabba and Rav Yosef both say that the guarantor can tell the creditor: You gave a man over to me, to take responsibility for him if he dies or flees; I have given a man back to you. The debtor is here before you; take your money from him, and if he has nothing, suffer the loss yourself.
מַתְקֵיף לַהּ רַב נַחְמָן: הַאי – דִּינָא דְפָרְסָאֵי!
Rav Naḥman objects to this: This is Persian law.
אַדְּרַבָּה, בָּתַר עָרְבָא אָזְלִי!
The Gemara interjects: On the contrary, the Persian courts go after the guarantor directly, without even attempting to collect the debt from the debtor himself. Why, then, did Rav Naḥman say that excusing the guarantor from payment is Persian law?
אֶלָּא בֵּי דִינָא דְפָרְסָאֵי – דְּלָא יָהֲבִי טַעְמָא לְמִילְּתַיְיהוּ.
The Gemara clarifies Rav Naḥman’s intent: Rather, Rav Naḥman meant to say that this kind of ruling would be appropriate for the members of a Persian court, who do not give a reason for their statements, but issue rulings by whim. Rav Naḥman was saying that it is not fair or logical to excuse the guarantor and cause a loss to the creditor who was depending on him.
אֶלָּא אָמַר רַב נַחְמָן: מַאי ״לֹא יִפָּרַע מִן הֶעָרֵב״ – לֹא יִתְבַּע עָרֵב תְּחִלָּה.
Rather, Rav Naḥman said: What does the mishna mean when it says that the creditor cannot collect the debt from the guarantor? It means that he cannot claim payment from the guarantor at the outset, until after it is established that the debtor has no means to repay the debt. After the borrower defaults, the creditor can collect the debt from the guarantor.
תַּנְיָא נָמֵי הָכִי: הַמַּלְוֶה אֶת חֲבֵירוֹ עַל יְדֵי עָרֵב – לֹא יִתְבַּע עָרֵב תְּחִלָּה. וְאִם אָמַר: ״עַל מְנָת שֶׁאֶפָּרַע מִמִּי שֶׁאֶרְצֶה״ – יִתְבַּע עָרֵב תְּחִלָּה.
This halakha is also taught in a baraita: One who lends money to another with the assurance of a guarantor cannot claim payment of the debt from the guarantor at the outset, rather, he must first attempt to collect the debt from the debtor. But if the creditor said to the debtor: I am lending the money on the condition that I will collect the debt from whomever I wish, he can claim payment of the debt from the guarantor at the outset, bypassing the debtor.
אָמַר רַב הוּנָא: מִנַּיִן לְעָרֵב דְּמִשְׁתַּעְבֵּד? דִּכְתִיב: ״אָנֹכִי אֶעֶרְבֶנּוּ, מִיָּדִי תְּבַקְשֶׁנּוּ״.
§ Rav Huna said: From where is it derived that a guarantor becomes obligated to repay a loan he has guaranteed? As it is written that Judah reassured his father concerning the young Benjamin: “I will be his guarantor; of my hand shall you request him” (Genesis 43:9). This teaches that it is possible for one to act as a guarantor that an item will be returned to the giver.
מַתְקֵיף לַהּ רַב חִסְדָּא: הָא קַבְּלָנוּת הִיא – דִּכְתִיב: ״תְּנָה אֹתוֹ עַל יָדִי, וַאֲנִי אֲשִׁיבֶנּוּ״!
Rav Ḥisda objects to this: This incident involving Benjamin is not a case of a standard guarantor, but a case of an unconditional guarantee, as it is written, also in the context of Benjamin, that Reuben said: “Deliver him into my hand, and I will bring him back to you” (Genesis 42:37). One who undertakes unconditional responsibility for a loan has a different status than a standard guarantor, as will soon be elaborated. Therefore, a biblical source has yet to be adduced to teach that one can become a standard guarantor.
אֶלָּא אָמַר רַבִּי יִצְחָק, מֵהָכָא: ״לְקַח בִּגְדוֹ כִּי עָרַב זָר, וּבְעַד נׇכְרִיָּה חַבְלֵהוּ״.
Rather, Rabbi Yitzḥak said that the source is from here: “Take his garment that is surety for a stranger; and hold him in pledge that is surety for an alien woman” (Proverbs 20:16). The verse advises a creditor to take the garment of the debtor’s guarantor as payment for the loan.
וְאוֹמֵר: ״בְּנִי, אִם עָרַבְתָּ לְרֵעֶךָ תָּקַעְתָּ לַזָּר כַּפֶּיךָ, נוֹקַשְׁתָּ בְאִמְרֵי פִיךָ נִלְכַּדְתָּ בְּאִמְרֵי פִיךָ, עֲשֵׂה זֹאת אֵפוֹא בְּנִי וְהִנָּצֵל כִּי בָאתָ בְכַף רֵעֶךָ, לֵךְ הִתְרַפֵּס וּרְהַב רֵעֶיךָ״ – אִם מָמוֹן יֵשׁ לוֹ בְּיָדֶךָ, הַתֵּר לוֹ פִּיסַּת יָד; וְאִם לָאו, הַרְבֵּה עָלָיו רֵיעִים.
And it is stated: “My son, if you have become surety for your neighbor, if you have shaken your hands for a stranger, you have become ensnared by the words of your mouth, you have been caught by the words of your mouth. Do this now, my son, and save yourself, seeing that you have come into the hand of your neighbor: Go, humble yourself [hitrappes], and assemble your neighbors” (Proverbs 6:1–3). This last part of the passage means: If your neighbor’s money is in your possession, as you owe it as a guarantor, open up [hatter] the palm [pissat] of your hand and repay him. And if it is not money that you owe him, but rather “you have become ensnared by the words of your mouth” and owe him an apology for a personal slight, gather together many neighbors through which to seek his forgiveness.
אָמַר אַמֵּימָר: עָרֵב דְּמִשְׁתַּעְבַּד, מַחְלוֹקֶת רַבִּי יְהוּדָה וְרַבִּי יוֹסֵי; לְרַבִּי יוֹסֵי דְּאָמַר: אַסְמַכְתָּא קָנְיָא – עָרֵב מִשְׁתַּעְבַּד. לְרַבִּי יְהוּדָה דְּאָמַר: אַסְמַכְתָּא לָא קָנְיָא – עָרֵב לָא מִשְׁתַּעְבַּד.
§ Ameimar said: The issue of whether or not a guarantor in fact becomes obligated to repay the loan he has guaranteed is a dispute between Rabbi Yehuda and Rabbi Yosei. According to Rabbi Yosei, who says that a transaction with inconclusive consent [asmakhta] effects acquisition, a guarantor becomes obligated to repay the loan, whereas according to Rabbi Yehuda, who says that an asmakhta does not effect acquisition, a guarantor does not become obligated to repay the loan. Any obligation one undertakes that is dependent on the fulfillment of certain conditions that he does not expect will be fulfilled, in this case the debtor’s default on the loan, is considered an asmakhta.
אֲמַר לֵיהּ רַב אָשֵׁי לְאַמֵּימָר: הָא מַעֲשִׂים בְּכׇל יוֹם, דְּאַסְמַכְתָּא לָא קָנְיָא וְעָרֵב מִשְׁתַּעְבַּד!
Rav Ashi said to Ameimar that he was conflating these two issues: But it is a daily occurrence, i.e., it is taken for granted, that an asmakhta does not effect acquisition, and it is also taken for granted that a guarantor becomes obligated to repay the loan he has guaranteed.
אֶלָּא אָמַר רַב אָשֵׁי: בְּהָהוּא הֲנָאָה דְּקָא מְהֵימַן לֵיהּ – גָּמַר וּמִשְׁתַּעְבַּד נַפְשֵׁיהּ.
Rather, Rav Ashi said: Through that satisfaction that the guarantor feels when the creditor trusts him and loans the money based on his guarantee, the guarantor resolves to obligate himself to repay the loan. Guaranteeing a loan is unlike a usual case of an obligation undertaken that is dependent on the fulfillment of certain conditions that he does not expect will be fulfilled, in which the commitment is not considered a real one. Here, the one obligating himself experiences a sense of satisfaction when the money is loaned to the debtor, and due to that, fully commits to fulfill his obligation.
וְאִם אָמַר ״עַל מְנָת שֶׁאֶפָּרַע מִמִּי שֶׁאֶרְצֶה״ כּוּ׳. אָמַר רַבָּה בַּר בַּר חָנָה אָמַר רַבִּי יוֹחָנָן: לֹא שָׁנוּ אֶלָּא שֶׁאֵין נְכָסִים לַלֹּוֶה, אֲבָל יֵשׁ נְכָסִים לַלֹּוֶה – לֹא יִפָּרַע מִן הֶעָרֵב.
§ The mishna teaches: But if the creditor said to the debtor: I am lending the money on the condition that I will collect the debt from whomever I wish, he can collect the debt from the guarantor. Rabba bar bar Ḥana says that Rabbi Yoḥanan says: They taught this only when the debtor has no property of his own from which to repay the loan, but if the debtor has property the creditor cannot collect the debt from the guarantor.
וְהָא מִדְּקָתָנֵי סֵיפָא, רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר: אִם יֵשׁ נְכָסִים לַלֹּוֶה – לֹא יִפָּרַע מִן הֶעָרֵב, מִכְּלָל דְּתַנָּא קַמָּא סָבַר: לָא שְׁנָא הָכִי וְלָא שְׁנָא הָכִי!
The Gemara questions this assertion: But from the fact that the latter clause of the mishna teaches that Rabban Shimon ben Gamliel says: If the debtor has property of his own, then whether in this case, where the creditor stipulated this condition, or that case, where he did not, he cannot collect the debt from the guarantor, by inference one can understand that the first tanna maintains that there is no difference if it is like this and there is no difference if it is like that. Whether or not the debtor has property from which to repay the loan, the creditor can collect the debt from the guarantor.
חַסּוֹרֵי מְחַסְּרָא, וְהָכִי קָתָנֵי: הַמַּלְוֶה אֶת חֲבֵירוֹ עַל יְדֵי עָרֵב – לֹא יִפָּרַע מִן הֶעָרֵב. וְאִם אָמַר ״עַל מְנָת שֶׁאֶפָּרַע מִמִּי שֶׁאֶרְצֶה״ – יִפָּרַע מִן הֶעָרֵב. בַּמֶּה דְּבָרִים אֲמוּרִים – בְּשֶׁאֵין נְכָסִים לַלֹּוֶה; אֲבָל יֵשׁ נְכָסִים לַלֹּוֶה – לֹא יִפָּרַע מִן הֶעָרֵב. וְקַבְּלָן, אַף עַל פִּי שֶׁיֵּשׁ נְכָסִים לַלֹּוֶה – יִפָּרַע מִן הַקַּבְּלָן.
The Gemara clarifies: The mishna is incomplete and this is what it is teaching: One who lends money to another with the assurance of a guarantor cannot collect the debt from the guarantor before first claiming the debt from the debtor. But if the creditor said to the debtor: I am lending the money on the condition that I will collect the debt from whomever I wish, he can collect the debt from the guarantor. In what case is this statement said? When the debtor has no property of his own from which to repay the debt; but if the debtor has property, the creditor cannot collect the debt from the guarantor. This is the halakha with regard to a standard guarantor, but in the case of an unconditional guarantor, even if the debtor has property of his own, the creditor can collect the debt from the unconditional guarantor.
