THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson # 97 (part 2 of...) •Guarantors and Sureties

We are continuing on the subject of how a person obligates himself to become a guarantor or surety.

The giving of a handshake by the guarantor cannot in and of itself create an obligation to be a guarantor or a surety if obligations are not thus created in the community. If the custom in the community is to enforce obligations agreed to and consummated by a handshake. Even if the handshake is not the way the community makes binding obligations, Beth Din may still compel him to abide by his undertaking.

If one swears that he will abide by his promise or by his handshake, although not binding on the guarantor, Beth Din may compel him to abide by his undertaking. This compulsion can only be used against the obligor [as defined in last week’s lesson as the guarantor, surety or transmitter], it will be binding even without a kinyan. 

Regarding gifts, there is an opinion that if one undertakes to see that a promised gift is given to the donee, then the donee can enforce that obligation. Rabbi Moses Isserles cites those who disagree with this opinion. 

All of the above applies equally to the undertaking to become a 
guarantor or a surety. There is one exception, however: that of guaranteeing or agreeing to act as surety on the kethubah of a bride. The Kethubah is a written document signed by witnesses at the wedding ceremony. In some places the husband also signs as obligor. The kethubah is an undertaking by the groom to the bride that in the event of a divorce he will pay to the wife a certain sum therein stipulated. It also provides that in the event of his death and she survives him, his estate is obligated to pay her a stipulated sum of money. Very often it contains other monetary undertakings by the husband. The latter conditions usually make up the supplemental kethubah.

Although the law of guaranteeing a kethubah appears in passing in Shulhan Aruch, Hoshen haMishpat, chapter 129, its prime place is in Shulhan Aruch Eben haEzer, chapter 102, paragraph 6. It is therein stated, 'The guarantor of the kethubah or the supplemental kethubah has no obligations, not even if a kinyan was performed, [the theory being that the bride would have married the groom in all events, whether or not there was a surety for the kethubah.] The foregoing applies to women in general. But as regards his daughter-in-law, a father-in-law is liable if a kinyan is performed. [The foregoing applies to guarantors.] But if he is a surety who says to a woman, 'Marry this man and I will give you [the amount of the kethubah],' he is obligated even if a kinyan was not made, and this applies to any woman." Rabbi Moses Isserles adds: "And there are those who say that every guarantor is liable if a kinyan is performed, and as regards his daughter-in-law, even if no kinyan was made. There is an opinion that a guarantor to the bridegroom regarding his dowry is the same as a guarantor to the bride regarding her kethubah. There are those who disagree and state that the guarantor of a dowry is the same as any other guarantor. At any time prior to the wedding he may change his mind." 

A person becomes a surety in only one of two ways. In all other situations, the person [obligor] is a guarantor. A person can become a surety if (1) he states that he is to be a surety; or (2) he employs the word give twice, in the first context referring to the lender, and in the second context referring to himself. For example, as in the sentence "You [the lender] give to him [the borrower], and I will give to you." If there is a kinyan. then the word give may even be employed in the past tense and the obligor will be liable as a surety. For example. if the obligor said, 'That which you [the lender] gave to him [the borrower] I will give to you." 

All other words will usually be construed to constitute a guarantee rather than a surety. A statement that does not state give is to be construed as constituting the obligor a guarantor. The examples given in the Shulhan Aruch are: "Lend to the borrower and I will guarantee the loan," or "Lend to the borrower and I will repay you," or "Lend to the borrower and I will be obligated to you," or "Lend to the borrower and I will give to you," or "Lend to the borrower and I will be surety to you," or "Give to the borrower and I will be guarantor to you," or "Give to him and I will repay you," or "Give to the borrower and I will be obligated to give to you," or even if he said, "Give to the borrower and I will be surety to you." Shulhan Aruch concludes that all of the foregoing are examples of guarantee. Rabbi Isserles (Ramo) adds: "And there are those who hold that the expression 'Give to the borrower and I will be surety' creates a suretyship." Ramo states that he prefers this view.

I believe that the Beth Din should examine all questionable cases to ascertain the intent of the parties. The intent of the parties is paramount. What did he intend? The intent of the creditor is of course of equal importance. Would he have loaned the money if the obligor was only obligated as a guarantor and not a surety? The rules stated by Rabbi Karo and by Rabbi Isserles are only intended as guides. The best course is for the parties to state their intent in a clear way and obviate the necessity of Beth Din having o use rules to try to ascertain the intent of the parties. 

If a third party takes the money from the lender and gives it to the borrower, then there is no connection established between the lender and the borrower. This holds true even if the lender gives the money directly to the borrower at the request of the third party who undertakes to repay the loan to the lender, if the borrower does not request the loan from the lender. The lender may look only to the third party for payment, and there is no connection between the lender and the borrower. 

The liability of the guarantor extends only to the initial loan made by the lender to the borrower. If the lender lends additional moneys to the borrower, the obligor is not responsible for such further loans. If the original loan is paid off or reduced and the lender increases the loan to the original amount, the guarantor is not liable for the additional loan, although the total amount does not exceed the initial loan.

The parties may stipulate whatever terms they desire. The obligor's undertaking may be for a specific sum and if the loan is reduced, it can be increased to that amount and the obligor will still be liable. It can be for a time limit and the guarantor will be liable for all loans made within that time.

If a guarantor undertakes to be liable on a certain day only. Rabbi Isserles writes that there is no liability on the part of the guarantor. There are conflicting opinions how this should be construed. According to one opinion, the loan is for a specific period and the obligor tells the lender that if he will demand payment on a certain date and the borrower does not pay, the obligor will pay, but if the lender demands payment on any other day the obligor will not pay if the borrower does not pay. The obligor is not liable even on the day he said he would be liable, since an obligor must be in the same position as the borrower. The borrower's obligation to pay is not limited to one day only, and thus the obligor's obligation is not binding.

According to another opinion, in the aforestated case there is liability on the part of the obligor on the day he undertook. The case intended by Rabbi Isserles where there is no liability is as follows: If the obligor states that he will perform for the borrower on a certain day if the borrower fails to perform. This is ambiguous since it could refer to any obligation that the borrower has to do that day, including his tasks at work. 

The subject matter of this lesson is more fully discussed in Vol. IV, Ch.129 of A Restatement of Rabbinic Civil Law by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores. 
Questions to quint@inter.net.il