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Shabbat Parashat Haazinu| 5766

Pninat Mishpat



The Ability of a Guarantor to Back Out - Based on Piskei Din Rabbaniim - vol. XVI, pp. 133-138
 
Case: As part of a divorce settlement, the wife agreed to reimburse the husband for any childcare payments he might have to make. She provided an arev (guarantor) for that obligation, who made a kinyan sudar (act of obligation) before beit din. However, the arev backed out before the divorce. Is the arev able to back out of the obligation?
 
Ruling: The Rif (cited by the Tur, CM 131) says that an arev can back out of his obligation even if he made a kinyan as long as he informs the lender prior to his making the loan. The Rashba (II, 158) gives three reasons for this ruling: 1) The obligation does not take effect until the loan is made, and thus until that time he can back out. 2) The obligation of an arev is generally an asmachta (an obligation that one does not expect to come to fruition). The reason that he has to pay is that he knows that the lender is laying out money because of his promise. However, in this case, he informed the lender not to rely on him. 3) Since the borrower can back out, so can the arev. Let us now compare our case to that of the Rif and Rashba.
 The arev obligated himself with a kinyan in front of a beit din chashuv (esteemed). In such a case, one cannot employ the laws of asmachta. Thus, the second reason does not apply. It is also not clear that the first reason applies. This is because many rule that a kinyan sudar can only work if it takes effect immediately. Thus, the obligation accomplished with a kinyan sudar must always precede the decision to back out. Regarding the third reason, that the borrower can also back out, this is also ostensibly questionable. The Ramban says that one who obligated himself with a kinyan to make a loan cannot back out. However, the Gidulei Terumah, in explaining the Ramban, assumes that if the borrower did not obligate his property in a lien, he, the lender and the arev can all back out before the loan is given. In our case, where the wife, who corresponds to the borrower, did not make a kinyan, the Rashba’s logic appears to apply.
 Let us now investigate if the obligations related to marriage and divorce follow the same rules as loans. The Sefer Haterumot (35:1) says that an arev for the financial obligations that the bride’s and the groom’s sides obligate themselves in the dowry and the ketuba, respectively, can back out before the wedding. The Rama (Even Haezer 102:6) and the Chelkat Mechokek (ad loc.: 19) accept that opinion as halacha. The same should be true regarding obligations related to the conditions of the dissolution of the marriage, through the giving of a get.
Although in this case, the arev did not inform the husband in person that he was backing out, he informed witnesses who informed the husband. Thus, when the husband proceeded to give the get, he no longer had the arev’s assurance to rely on, and the arev is not obligated.
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Dedication

This edition of
Hemdat Yamim is dedicated to the memory of
R’ Meir ben Yechezkel Shraga Brachfeld o.b.m.
Hemdat Yamim is also dedicated by Les & Ethel Sutker of Chicago, Illinois
in loving memory of Max and Mary Sutker and Louis and Lillian Klein,z”l.
May their memory be a blessing!

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