Guaranteeing Loans

In our parsha, Yaakov Avinu is finally convinced to send Binyamin to Egypt after Yehuda promises that he will bring him back. Yet Reuven’s promise did not have the same effect. The differing character of the two sons obviously plays a role: Yaakov considers Reuven dissipated as water” (Bereshit 43:4), but envisions Yehuda holding the scepter of leadership (Bereshit 43:10). But there is also an important linguistic difference in their pledges: Yehuda uses the language of “arvut”, or guarantee, which has an important impact on the force of a promise.

While our Sages urge a person to abide by his word at all times, most promises express an intention, and not a commitment. A person can make a promise one day, and then change his mind the next (SA CM 203:1).
Nonetheless, there are ways of making a promise binding and enforceable. We discussed one such way last week: making an oath or a vow. This method takes advantage of the remarkable ability HaShem gives us to make His name inhere in a human utterance, so that violating our word becomes a forbidden desecration of His name.

Another binding promise is one to pay back a loan. This kind of promise acquires its force from the personal lien, or “shiabud haguf” which it creates. In effect, the borrower actually sells himself to the lender in a kind of slavery in miniature; this gives the lender a limited ability to compel repayment of the loan. This aspect of loans is expressed by the verse in Mishlei which says that “The borrower is the slave of the lender” (Mishlei 22:7). (A guarantor can lien himself in a parallel way by making a kinyan. SA CM 129:1.)

A third party who guarantees a loan, known as a guarantor or “arev”, is also bound by his promise if it is a condition of the loan (SA CM 129:2). Like an ordinary debt, arvut creates a personal lien; yet like an oath, it succeeds in doing this despite the fact that the guarantor receives no direct benefit in return for his commitment.

For this reason, the commitment in both of these promises may be less earnest than in the case of a loan. Indeed, our Sages warn us to distance ourselves from both oaths and loan guarantees (Yevamot 109a), presumably out of concern that the person may regret having made them by the time he becomes obligated to fulfill them. This regret is absent in a loan, since the borrower knows that he could never have obtained the money without his promise.

Why can’t the guarantor change his mind after promising to pay back a loan? The gemara suggests two different directions, both very instructive.
In one place the gemara seeks the source of the guarantor’s commitment, and suggests the promise of Yehuda, who as we mentioned tells his father that he guarantees his brother’s return. The passage seems to accept that this as an appropriate source for an unconditional loan guarantee, where the guarantor is solely responsible for the loan. It seems that here the very expression of “arvut” is effective. What does this term mean?

THE EMPATHY PRINCIPLE 

The root “arev” literally means “to mix”. The arev in effect “mixes” his identity with that of the debtor. When in last weeks parsha Yehuda offered to be “arev” to Binyamin (Bereshit 43:9), he, unlike Reuven, was actually offering to put himself in Binyamin’s place – an offer which he actually fulfilled in the events of our parsha. (Bereshit 44:32-33.)

This “mixing” is also one way of understanding a “kinyan arev”, in which the seller does not actually receive the purchase price but rather directs that someone else should receive it. We may say that the seller is actually “mixing” himself with the recipient, so that it is as if he himself received consideration (Kiddushin 6b according to some Rishonim).

This idea of empathy can give us a new insight into the principle that “all Israel are arevim to each other” (Shavuot 39a, SA CM 87:20) – each Jew identifies with his fellow Jews and mingles his identity with theirs.

SACRED TRUST

In order to explain the more usual case of a conditional guarantee, in which the guarantor is liable only if the debtor can’t pay, the gemara introduces a new principle: the guarantor has not received money, but rather something else just as good: he has received trust. The lender has relied on the guarantor’s promise in order to extend a loan to the borrower. A person’s reputation for reliability is as good as gold to him (BB 173b). This is also one way of understanding the idea of a kinyan arev – the seller’s benefit is that the buyer has relied on his word to give the purchase price to a third party (according to other Rishonim).

This approach to arvut is in some ways similar to our understanding of oaths. The reliance of our fellow human being is a sacred trust which, somewhat like the invocation of HaShem’s holy name, elevates a promise from a mere offer into a solemn obligation.

AIDING OTHERS

Both of these approaches explain how a guarantor becomes obligated to pay a debt instead of the debtor. Yet one goal of an arev is to induce the lender to rely on the borrower himself. The guarantor’s support is not merely an alternative to collecting from the borrower, but also a way of convincing the lender that this borrower is himself reliable. The gemara says that a person’s legs are his “guarantors” since they make sure that he arrives where he is supposed to be (Sukkah 53a. See SA CM 131:12). This is really another expression of the mingling of identities, in which the guarantor is able to transfer some of his reliability to the borrower.