Shabbat Parashat Tetzaveh 5784

P'ninat Mishpat: How to Take Payment from a Guarantor – part II

Case: The plaintiff (=pl) lent 110,000 NIS to the borrower (=brw) for his business. Brw was to return it after a month with 10% interest. The defendant (=def) signed as an arev (guarantor). Many months have gone by without payment, and brw has filed for bankruptcy. Pl demands that def pay, but def says he did not understand the loan agreement and that, anyway, he does not have enough money to pay and can only make small monthly payments. Pl wants def to borrow money to pay at one time, as def assured pl, before the loan, he could do.

Ruling: [We saw last time that the arvut agreement is binding and operative. We are in the midst of a discussion on whether, considering def’s assurance that he could borrow money to pay, he can be forced to do so.]

Kovetz Hayashar V’hatov (XVII, p. 123) claims that nowadays, it is common for debtors to borrow large sums from gemachim, and if a borrower did not expect to have money to pay back when due, we consider his promise to borrow in order to pay binding. In this case, def promised to borrow money, which likely is equivalent to a promise to work. The Perisha (Choshen Mishpat 99) says that a promise to work in order to pay, must fulfill the requirements to overcome issues of asmachta (a promise that we have reason to believe one did not envision having to follow through on). The promise in the ketuba that a husband will work to support his wife may be stronger because all men are required to obligate themselves.

However, the Rama (CM 129:8) says that an obligation that would be an asmachta for a borrower is binding for an arev. The logic is that the whole institution of arvut is an asmachta (the arev presumed the borrower would pay), and the same logic that overcomes that (see Bava Batra 173b), overcomes other elements of asmachta. On the other hand, the Bach and Shach (129:20) posit that when the arev does not make a special act of obligation, he has the same ability to claim asmachta in non-standard cases that a borrower has. Therefore, the minority opinion is that def cannot be obligated to take a loan.

According to the majority opinion, one must distinguish between forcing someone to work, in which case beit din would be taking away his freedom to spend his time as he decides, and the obligation to take a loan. Since def is expected to soon have earning ability, and loans are available for people like him, this is a reasonable self-obligation, which def should be held to.

The minority opinion agrees that def can be instructed to pay the full sum immediately. Since beit din does not have the ability to determine whether one has resources from which to pay, and since the oath that one who claims he cannot pay is no longer administered, we allow pl to turn to Hotza’ah Lapo’al to try to obtain payment from def. It likely behooves def to borrow money in order to avoid this difficult process, so that practically all the dayanim agree that the proper path for def is to borrow the money and pay.

The matter we have not summarized is the abuse of the heter iska and its impact on the amount due.

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