Today’s daf discusses two types of debt guarantors: a standard guarantor and an unconditional guarantor. If a person acts as a standard guarantor on behalf of a debtor, the creditor may collect from the guarantor only if the debtor has no property to collect on. In contrast, a creditor may collect from an unconditional guarantor at any time, regardless of the debtor’s circumstances.
What creates each of these types of guarantees?
Rav Huna says that if one says to a potential creditor: “Lend money to him and I am a guarantor,” or, “Lend money to him and I will repay the debt,” or, “Lend money to him and I am obligated to repay the debt,” or, “Lend money to him and I will give the money back to you,” — all these are expressions that confer the status of a standard guarantee.“Give money to him and I am an unconditional guarantor,” or: “Give money to him and I will repay the debt,” or, “Give money to him and I am obligated to repay the debt,” or, “Give money to him and I will give the money back to you,” — all these are expressions that confer the status of an unconditional guarantee.
Catch the pattern? It doesn’t matter so much which words the guarantor uses to express their intention to repay the debtor, but rather what verb they use for the action of giving the loan. If they instruct the creditor to “loan” the money to a third party, then they are offering to act as a standard guarantor. But if they instruct the creditor to “give” the money, then they have set themselves up as an unconditional guarantor.
Because it’s the Gemara, you know there’s going to be a wrinkle:
A dilemma was raised before the sages: What is the halakhah if one says: “Lend money to him and I am an unconditional guarantor?” What is the halakhah if one says: “Give money to him and I am a (standard) guarantor?”
When a speaker says “lend” — a verb specifically associated with a standard guarantee — but indicates he’s an unconditional guarantor, what is he? And, similarly, if he says “give,” but then clearly expresses he intends to be a standard guarantor — how do we rule?
Rabbi Yizhak offers his opinion:
When one employs the language of a standard guarantee, it is a standard guarantee, even if he also used the word “give.” And when one employs the language of an unconditional guarantee, it is an unconditional guarantee, even if he also used the word “lend.”
According to Rabbi Yitzhak, the guarantor’s self-description as “unconditional guarantor” or “guarantor” supersedes the verb he uses. But Rav Hisda and Rava return to Rav Huna’s original pronouncement of what language creates which type of guarantee and challenge it from two different directions:
Rav Hisda says: All of the expressions mentioned in this discussion are expressions of an unconditional guarantee, except for: “Lend money to him and I am a guarantor.”
Rava says: All of the expressions mentioned in this discussion are expressions of a standard guarantee, except for: “Give money to him and I will give the money back to you.”
These are relatively extreme, contradictory statements, with Rav Hisda considering nearly everything to be an unconditional guarantee and Rava declaring nearly everything to be a standard guarantee. We are now left with a panoply of positions and the Talmud offers no more analysis or further discussion, so we’re not even sure of the reasoning behind each rabbi’s stances.
And, we have an even more extreme stance posed:
Mar bar Ameimar said to Rav Ashi: My father said the following: If one says: “Give money to him and I will give the money back to you,” this expression binds the guarantor to such an extent that the lender has no claim against the debtor at all.
This position — that a statement with this phrasing completely insulates the debtor from any obligation for the debt and places responsibility solely on the shoulders of the guarantor — proves to be a bridge too far for the Gemara:
But that is not so. Rather, the debtor is not exempted from dealing with the creditor unless the guarantor takes the money from the creditor and gives it to the debtor with his own hand.
There is a way for a guarantor to be solely responsible for the debt, but it requires him to acquire the money from the creditor and then give it to the debtor, acting as a literal middleman. And while words are powerful enough to create some kinds of guarantees, words alone aren’t enough in this instance.
Read all of Bava Batra 174 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on December 16, 2024. If you are interested in receiving the newsletter, sign up here.
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