Lesson # 99 (last part of Guarantors) This is the last lesson dealing with guarantors. We shall discuss the special rules relating to guarantors if the guarantor is a woman, or a minor or a Gentile. The case of the married woman is unique in that generally the assets of a woman are under control of her husband. There are situations in which a married woman's guarantee may be enforced, i.e., where by agreement, prenuptial or perhaps even during the marriage, the husband will not have any claim to his wife's assets; or she may have given the guarantee before marriage and is asked to fulfill her undertaking after she became married; or she may have given the guarantee while married and is being asked to fulfill her guarantee after she has become widowed or divorced. An unmarried woman may act as a guarantor, the same as a man. A married woman may undertake the obligation of being a guarantor or a surety without her husband's permission. Her liability to make payment under the obligation may not be enforced against her as long as she is married. This holds true if the husband is the borrower and the undertaking regards her husband as the borrower. The obligation can be enforced against her after the married state has terminated either by divorce or by the death of her husband. If the woman has independent assets not subject to the control of her husband. The obligation can be enforced against her even while she is married. A woman undertook to act as a guarantor before she got married. After she got married she was called upon to fulfill her undertaking. Her status is the same as a borrower. If her undertaking was oral. then the lender cannot enforce the obligation until she is divorced or widowed. The same as would apply for any married woman. If a minor is a guarantor, he is not obligated to make good on the obligation even after he reaches his majority. Even if he has property, the undertaking by a minor to act as a guarantor is not binding on him. One person is the guarantor for two debtors to the same lender. The debtors are not joint debtors. The guarantor pays off one of the loans. It must be clear which of the debtors' loans is being paid off. Otherwise he cannot ask for reimbursement from either debtor. One opinion holds that it is the lender who can determine which debt is being paid for by the guarantor and should so notify the guarantor. The guarantor should obtain a receipt from the lender stating that the guarantor has paid off the loan of a certain debtor. Another opinion holds that the guarantor, when he pays off one of the loans, can notify the lender which loan he is paying off. Here, too, he should get a writing from the lender that the guarantor has paid off the debt of that certain debtor. Should the guarantor fail to obtain such a receipt of payment, he may not be able to seek reimbursement from either debtor, since each can say that “the debt you paid was not my debt.” In such event, the guarantor may have to pay the lender the second debt and then be able to demand payment from both debtors. The last topic we shall discuss is that of dealings with Gentiles. The Shulhan Aruch sets forth several actual cases decided by great sages that are here set forth: Reuven is a guarantor to a lender for a loan made by the lender to a violent Gentile. Reuven thereafter prevails upon the Gentile to give him an object as a pledge for the loan, instead of Reuven's guarantee. Reuven gives the pledge to the lender. Thereafter late on Friday afternoon as the Sabbath is about to commence, the Gentile enters the house of Reuven, the lender also being present, and asks the lender to return the pledge and that Reuven should once again become a guarantor of the loan. Reuven advises the Gentile that the Sabbath has commenced and that he cannot become a guarantor on the Sabbath. The Gentile entreats Reuven until he says to the lender, "I am in the same position as I was," whereupon the lender returns the pledge to the Gentile. The Gentile does not pay the loan and the lender sues Reuven on the guarantee. Reuven's defense is that he did not intend that his remark, "I am in the same position as I was," should refer to his position as a guarantor without a pledge of the borrower in the hands of the lender, but rather as a guarantor with a pledge in the hands of the lender. He pleads that proof of this is that the lender should have understood his reluctance to become a guarantor, for Reuven had used the entering of the Sabbath as an excuse. The decision was in favor of Reuven. The lender should have made the guarantee more explicit to be able to enforce it against Reuven. Nevertheless Reuven is obligated to cooperate with the lender to have the Gentile repay the loan. (This case comes from a responsum of Rabbi Isaac Alfasi who lived in Spain (1013-1103). The lender to a Gentile borrower holds a pledge from the Gentile. The Gentile demands the return of the pledge in exchange for producing Reuven as a guarantor. The lender agrees to this procedure. The Gentile takes Reuven to the lender and Reuven tells the lender in Hebrew, which the Gentile does not understand, that he, Reuven, is warning the lender that he is not accepting the responsibility of being a guarantor and also tells the Gentile in their customary language that he is accepting the role of the guarantor. The Gentile does not pay and the lender sues Reuven for the loan repayment. It was held that Reuven is to be considered asa guarantor who undertook liability at the time of the making of the loan, and that his warning in Hebrew to the lender is to be disregarded. (This responsum appears in Tur, Hoshen haMishpat and attributed to Rashi who lived1040-1105.) Shimon agrees to be a guarantor for a loan made by a Gentile to Reuven. Reuven then leaves the jurisdiction and Shimon is required to make payment to the Gentile. When Reuven returns, Shimon sues him for reimbursement. Reuven answers the complaint by stating that Shimon should not have paid the Gentile, since Reuven had already paid him before he left and has an instrument of payment. Shimon counters that Reuven should have given the instrument of payment to Shimon before he left and also he should not have left the original instrument evidencing the debt with the Gentile. The decision was in favor of Shimon, and Reuven had to pay to Shimon all that Shimon paid to the Gentile. Shimon's proof as to how much he paid to the Gentile could either be by calling two witnesses or by a receipt from the Gentile with the amount of payment or an endorsement of the amount of payment on the original instrument of indebtedness. (This case is also reported in Tur Hoshen haMishpat in the name of his father Rabbi Asher b. Yehiel who lived 1250-1327 Germany, Spain.) Two Jews rented space from a Gentile, and each guaranteed the performance of the other. The Gentile found one of them and collected the full amount from him. The other person must pay to the first person one-half of all that he paid. including all damages that the first person incurred because the second did not pay hisshare. The subject matter of this lesson is more fully discussed in Vol. IV, Ch.131 and 132 of A Restatement of Rabbinic Civil Law by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores. [The R'ei Homepage]
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