Shabbat Parashat Shelah| 5767
Responsibility of One Who Assures Lender That a Loan Is Safe - Based on Halacha Psuka - vol. 8 - A Condensation of a P’sak from Kovetz Darkei Hora’ah IV - pp. 142 - 145
Case: The plaintiff (=pl)runs a gemach (free loan association). Pl turned Reuven down for a loan because of a past failure to return a loan. Reuven used the defendant (=def), a well-respected man, to assure pl that this loan would be paid. Def reported that he knew unequivocally that Reuven would be getting money within 10 days, that the money would go through def, and that he would personally transfer the money to the plaintiff. However, def said that he would not be obligated as an arev (cosigner). The money never came in, and the loan was not returned. Pl claims that def must pay back the loan if Reuven does not.
Ruling: The Rama (Choshen Mishpat 129:2) rules: “Even if one did not become an arev explicitly, but only told the lender to lend to the borrower because he is safe and he did so based on his [the advisor’s] word and it was false, he has to pay because it is as if he became an arev.” The Acharonim explain that the obligation is not as an arev but through the laws of garmi (semi-direct damages).
The source for this ruling is the gemara (Bava Kamma 99b), which is codified in the Shulchan Aruch (CM 306:6) as follows: “If one shows a coin to a money changer, who says that it is legal currency, and it is not, if he charged for the appraisal he must pay even if he is an expert who does not lack experience. If he appraised it for free, he is exempt from paying, provided he is an expert. If he is not an expert, he must pay even if he appraised it for free, provided that [the customer] said: ‘See that I am relying on you’ or it was clear that that he was relying on him and not showing it to others.” In summary, if the one who gave advice knew the person was relying upon him, he is exempt only if he gave the advice for free and is an expert. Why is he obligated to pay in the other circumstances, considering that garmi is a penalty, which one would expect would not be levied on one who makes an honest mistake? The answer is that it is not considered an oness (extenuating circumstances) but peshi’ah (negligence) because he should have learned his craft better and/or looked into the matter better.
In our case, pl agreed to lend to Reuven only because of def’s assurance and insistence, so one condition for payment is met. Def based himself on the fact that Reuven was offered a job. However, def should have known that not all job offers reach fruition for a variety of reasons. Thus, his sweeping assurance is considered peshi’ah. Although def specified that he would not be an arev, he did not specify that he would be exempt from damage payments. (There are differences between the two). Thus, def must pay the sum of the outstanding loan based on the rules of garmi if Reuven does not.
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This edition of Hemdat Yamim is dedicated to
Noam Mannon the occasion of his bar mitzvah.
May he continue to bring joy and nachas to all who know him.
Hemdat Yamim is also dedicated in memory of R' Meir ben Yechezkel Shraga Brachfeld o.b.m.and 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!