Shabbat Parashat Naso | 5769

Hemdat Hadaf Hayomi: Two Partners who Borrowed or Took a Loan Together

Baba Metziah 29-35

The Ran (Shevuot 17a in the pages of the Rif) explains that the dilemma in the second case is based on the dilemma in the first one. If we assume that a person who paid half does not receive half the kefel, it is still possible that by partners that one of whom paid half will receive half the kefel. The reasoning is that in the first case, the person was required to pay the entire amount, and thus it is possible that until he pays all that he was required to he does not receive any portion of the kefel. However, in the case of partners, since the partner paid all that he was required to it is possible that he does receive his portion in the kefel.

This explanation of the Ran raises the issue of whether when two people borrow an object together or take a loan together, each one is really only required to pay half. The Yerushalmi (Shevuot 5, 1 quoted in the Rif Shevuot 17a) states that two people who took a loan together, each is responsible and guarantees the other. It appears from the Yerushalmi that this is true also by two people who received an object to guard. From this Yerushalmi the Rishonim learnt that two people who took a loan together, or borrowed together, or received an object to guard, each one is required to pay the entire amount. The question is, how can this be resolved with the Gemara we just learnt, from which it appears that each partner is required to pay only half?

The Ran gives two answers to this question. His first answer is that although the lender can demand the entire amount from each of the partners he chooses, the partner who paid the full amount can demand a return on half the payment from his partner. According to this, it is still possible to see a partner who paid half the amount as having paid all that he was required; in the sense that he paid all that he was required to pay on his account.

The second answer of the Ran changes the definition of the obligation of two people who lent or borrowed together. In his second answer the Ran claims that two people who lent or borrowed together, each partner is only obligated to pay half the amount, and on the second half he is considered a guarantor for his partner. Therefore, the lender must initially demand from each partner to pay half the amount. Only if one of the partners cannot pay, then he can demand payment for the second half from the other partner, as a guarantor. According to this, a partner who paid half the amount really paid all that he was required to pay directly, as his obligation on the second half is only as a guarantor.

This point is in debate amongst the Rishonim. According to the Rosh (Shevuot 5, 2), when two people take a loan together the lender can demand the entire amount from each one of them that he chooses. However, according to the Rambam (Malveh Veloveh 25, 9) and other Rishonim, each partner is required to pay only half, and is a guarantor on the second half. The Shulchan Aruch (Choshen Mishpat 77, 1) rules according to the Rambam that initially the lender must demand only half from each partner, and only if one cannot pay may he demand the remainder from the second partner.  

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