Adapted from Likkutei Sichos, Vol. XXVI, p. 145ff.
The concluding mishnah in the tractate of Bava Basra states:
[1]
When a guarantor is designated after a contract of a loan is signed, [the lender] may collect the debt from the property [possessed by the guarantor].[2]
An incident occurred, and Rabbi Yishmael ruled that [the lender] may collect the debt from the property [possessed by the guarantor].
Ben Nannas told him: He may collect neither from property which [the guarantor] has sold, nor from property in his possession.
"Why not?" he asked.
He answered him: "If an individual would be strangling a colleague in the street and another person would come and say 'Release him, and I will pay you,' [the latter] would not be held liable, for [the lender] did not give the money because of [the guarantor's] faithfulness.
"What is an instance where a guarantor would be held liable? When he said: 'Lend him money, and I will pay you.' He is liable, because [the lender] gave the loan because of [the guarantor's] faithfulness."
Rabbi Yishmael said: "...A person who desires to involve himself with monetary law should serve Shimon ben Nannas."
The Gemara states[3] that although Rabbi Yishmael praised Shimon ben Nannas, he did not retract his own view. And indeed, the halachah follows Rabbi Yishmael's approach. The Gemara then asks: "What is the law when one is strangling another person?" and replies, "Rabbi Yishmael differs also with regard to a person who is strangling a colleague and the halachah follows his approach in this instance as well."
The Gemara, however, concludes by explaining that when someone is being strangled by his creditor and another person volunteers to pay his debt so that the creditor will release him, the guarantor becomes liable if he performs a kinyan, an act of contract which affirms his commitment.[4] Summing up the matter, the Gemara states:[5]
The halachah is: A guarantor who makes a commitment when the money is given need not affirm his commitment with a kinyan. After the money is given, he must affirm his commitment with a kinyan.
Thus, when one person is strangling another, it is only when the guarantor affirms his commitment with a kinyan that his pledge is binding.
The Jerusalem Talmud reviews the same mishnah and concludes as follows:
Rabbi Yeisa says in the name of Rabbi Yochanan: "Although Rabbi Yishmael praised ben Nannas, he praised him for his analogy, but the halachah does not follow ben Nannas."
Shimon bar Vavvah said in the name of Rabbi Yishmael: "Even in an instance where one person is strangling another, the halachah follows Rabbi Yishmael."
Rabbi Yossi says: "From this we understand that if one person ambushes a colleague in the marketplace and another person comes and says: 'Let him go and I will pay,' he should collect from the latter and not from the former."
Thus unlike the Babylonian Talmud, the Jerusalem Talmud does explicitly stipulate that a kinyan is necessary for the guarantor to become liable.
The wording of the Jerusalem Talmud's conclusion: "he should collect from the latter and not from the former" is, however, difficult to understand. For there is no logic to say that the guarantor's obligation should be stronger than that of the borrower, and that payment should be requested from him and not from the borrower.[6]
Because of this difficulty, the P'nei Moshe[7] interprets the final phrase as a rhetorical question: "Should he collect from the latter and not from the former?" According to this interpretation, by requesting the attacker to release his victim, the person is not necessarily undertaking a serious commitment as a guarantor. Instead, he is concerned with saving the life of the victim. According to this explanation, the Jerusalem Talmud follows the same reasoning as the Babylonian Talmud, and when a person saves a colleague from being attacked by committing himself to pay the debt, he is not held liable unless he affirms his word with a kinyan.
This interpretation is, however, difficult to accept. The difficulty cited by the Pnei Moshe is so obvious, that it is not necessary to negate it. Moreover, according to the conception of the Pnei Moshe, Rabbi Yossi is merely restating the position of ben Nannas in the mishnah without adding a new concept.
Thus it is more appropriate to say that Rabbi Yossi's statements should be interpreted in the context of the Jerusalem Talmud's position that the halachah follow Rabbi Yishmael's approach. As will be explained, his wording enables us to understand why a person making such a commitment would be obligated although he does not affirm his statements with a kinyan.
To understand the differences in the positions of the Babylonian and Jerusalem Talmuds, it is necessary to focus on the fundamental rationale for a guarantor's obligation. After all, since he did not receive the loan himself, why should he be obligated to pay?
We find two rationales given by the Babylonian Talmud:
- "The satisfaction which he derives from being accepted as a faithful person causes him to commit himself and undertake the obligation."[8]
- "The lender could tell the guarantor: 'If it wasn't for you, I would not have given him a loan at all.'"[9]
According to the first interpretation, the guarantor's obligation comes as a result of the satisfaction he received. Receiving this satisfaction thus resembles a transaction which is itself a kinyan, and therefore no other kinyan is necessary.
According to the second interpretation, the guarantor's obligation does not stem from the satisfaction he received, but rather stems from the fact that the lender undertook an expense because of him.[10] The fact that the lender relied on the guarantor and gave a loan because of his pledge is sufficient to motivate the guarantor to make a genuine commitment which he is obligated to uphold.
A distinction between these two rationales can be seen in the case mentioned above, in which a person stops a lender from attacking a delinquent borrower by committing himself to pay the debt. The opinion that maintains that the guarantor's obligations stems from the lender spending money because of the guarantor's pledge would not hold the guarantor liable unless he affirms his commitment with a kinyan. For in this instance, the money had already been advanced, and the guarantor's commitment did not cause the lender to undertake any new expense.
The opinion which maintains that the guarantor's obligation stems from the satisfaction he received, by contrast, leads to a different conclusion. For in this instance, he did receive satisfaction - perhaps greater satisfaction for a person under attack was released because of him - and this is sufficient to cause him to make a binding commitment.
On this basis, we can explain the difference in the approach of the Babylonian and Jerusalem Talmuds. The Babylonian Talmud follows the second rationale mentioned above, that the guarantor's commitment stems from the fact that the lender advanced money because of him. Therefore, in the case of a guarantor who saves a person from being attacked by the lender, since the guarantor is not causing the lender any monetary loss, the guarantor's commitment must be affirmed by a kinyan to be binding.
[11]
The Jerusalem Talmud, by contrast, accepts the first rationale, that the satisfaction the guarantor receives is sufficient to obligate him. Such satisfaction is also received when he saves a colleague from attack, and therefore he becomes liable.
This explanation allows for a new interpretation of Rabbi Yossi's words at the conclusion of the Jerusalem Talmud:
"From this we understand that if one person ambushes a colleague in the marketplace and another person comes and says: 'Let him go and I will pay,' [he becomes liable, because now] he can collect from the latter and not from the former."
With these words, Rabbi Yossi is explaining why a guarantor becomes liable. The lender still retains his right to collect the debt from the borrower,[12] but at present it is impossible for him to exercise that right (because the borrower is unable to pay). When the guarantor makes a commitment that enables him to collect his debt from him, this causes the lender to temporarily release the borrower from pressure, "[because now] he can collect from the latter and not from the former." The satisfaction this generates for the guarantor is sufficient to cause him to make a binding commitment.
It is possible to explain that the reason the Jerusalem Talmud accepts a more encompassing approach to the obligations of a guarantor is that the concepts of unity and mutual responsibility share an intrinsic relationship with Eretz Yisrael, the land in which the Jerusalem Talmud was authored.
To explain: The concept of mutual responsibility, areivus, that every Jew shares in the accountability for the deeds of each member of our people, began with the entry of the Jewish people into Eretz Yisrael.[13] At that time, the Jewish people became a single communal entity, and not merely a collection of individuals.[14]
This concept of mutual responsibility was perpetuated even after the Jewish people were exiled. Therefore, wherever they are located, one Jew can fulfill the responsibility of another Jew with regard to certain matters, e.g., the recitation of a blessing before performing a mitzvah.[15] Nevertheless, the true sense of community exists only in Eretz Yisrael. For this reason, the complete halachic definition of a communal fast does not apply in the Diaspora, only in Eretz Yisrael.[16] For only in Eretz Yisrael, do the Jews function as a communal entity in the full sense.
The macrocosm is reflected in the microcosm. Because Eretz Yisrael is more closely related to the concept of mutual responsibility, when considering the idea of areivus in a financial sense, the Sages of Eretz Yisrael were willing to accept the concept even when it is not reinforced by deed. The satisfaction which a person receives is sufficient to bring about such an obligation. In Babylonia, by contrast, since the concept of mutual responsibility received less of an emphasis, the Sages required that a person perform an act, a kinyan, to reaffirm his commitment and cause it to become binding.
May the mutual responsibility our people share soon come to its most complete expression, when, with togetherness and unity, "a great congregation will return here,"[17] to Eretz Yisrael, with the coming of Mashiach. May this take place in the immediate future.
Notes:
- (Back to text) 175b.
- (Back to text) In contrast to property which he sold.
- (Back to text) 176a.
- (Back to text) Our argument (throughout the essay) follows the interpretation of the Shitah Mekubetzes (the conclusion of Bava Basra) which maintains that according to Rabbi Yishmael, a kinyan is not necessary. It must be noted, however, that the Rambam (in his Commentary to the Mishnah), the Nimukei Yosef, and others maintain that Rabbi Yishmael also requires a kinyan for an obligation on the guarantor to be binding. According to this approach, ben Nannas, by contrast, maintains that a guarantor is not liable even if he affirms his commitment with a kinyan.
- (Back to text) Ibid.:b.
- (Back to text) See Bava Basra 173a-b; Rambam, Mishneh Torah, Hilchos Malveh ViLoveh, ch. 25, Tur and Shulchan Aruch, sec. 129.
- (Back to text) One of the authoritative commentaries on the Jerusalem Talmud, whose gloss is printed on the same page as the text of the Jerusalem Talmud, as Rashi's commentary accompanies the Babylonian Talmud.
- (Back to text) Bava Basra 173b. See the gloss of the Ritva which emphasizes this rationale.
- (Back to text) Bava Basra 174a. See the glosses of Rabbeinu Gershom and the Nimukei Yosef which place the emphasis on this rationale. The Nimukei Yosef explains that the reason mentioned previously is important only to explain why the guarantor's commitment is not considered as an asmachta, a commitment which one never seriously intended to fulfill.
- (Back to text) The intent is not that it is as if the guarantor caused the lender a loss, and he is liable to pay him damages (to cite a parallel: a person who shows a coin to a moneychanger and the moneychanger errs in quoting its value). Instead, the liability comes because of the guarantor's initiative. That initiative, however, is prompted by the fact that the other person undertook an expense because of him.
- (Back to text) For according to the Babylonian Talmud, the satisfaction received by a person from the fact that he is considered faithful enough to repay a debt is not sufficient to create a binding obligation. When, however, a person is appointed as a guarantor by the court, the appointment is more distinguished and conveys a greater measure of satisfaction. Therefore, it is a sufficient to generate a binding obligation (Rambam, loc. cit.:2).
- (Back to text) If this were not the case, the person making the commitment would not be considered as a guarantor, but rather as a person undertaking an independent commitment. See the commentaries of the Meiri and the Ritbah to this passage.
- (Back to text) Sanhedrin 43b; see Rashi, Devarim 29:28.
- (Back to text) See the gloss of the Rogatchover Gaon to Sanhedrin, loc. cit.
- (Back to text) Rashi, Rosh HaShanah 29a; Shulchan Aruch HaRav, the conclusion of sec. 167.
- (Back to text) Pesachim 54b.
- (Back to text) Yirmeyahu 31:8.
Should We Restrict The Amount We Give?