Talmud - Bava Batra 174a בבא בתרא קע״ד א׳

Rabban Shimon ben Gamliel says: If the debtor has property, in both this case and in that case, i.e., whether the guarantor is a standard guarantor or an unconditional guarantor, the creditor cannot collect the debt from either type of guarantor.

Rabba bar Ḥana says that Rabbi Yoḥanan says: Wherever Rabban Shimon ben Gamliel taught a halakha in the corpus of our Mishna, the halakha is in accordance with his opinion, except for the following three cases: The responsibility of the guarantor, and the incident that occurred in the city of Tzaidan (see Gittin 74a), and the dispute with regard to evidence in the final disagreement (see Sanhedrin 31a).

§ The Gemara discusses which expressions confer upon a person the status of a standard guarantor, and which confer the status of an unconditional guarantor. Rav Huna says that if one says to a potential creditor: Lend money to him and I am a guarantor, or: Lend money to him and I will repay the debt, or: Lend money to him and I am obligated to repay the debt, or: Lend money to him and I will give the money back to you, all these are expressions that confer the status of a standard guarantee.

If one says: Give money to him and I am an unconditional guarantor, or: Give money to him and I will repay the debt, or: Give money to him and I am obligated to repay the debt, or: Give money to him and I will give the money back to you, all these are expressions that confer the status of an unconditional guarantee. The usage of the word give, as opposed to lend, confers the status of an unconditional guarantor.

A dilemma was raised before the Sages: What is the halakha if one says: Lend money to him and I am an unconditional guarantor? On the one hand, the word lend is used, as opposed to give, but on the other hand, he explicitly states that he will be an unconditional guarantor. What is the halakha if one says: Give money to him and I am a guarantor? On the one hand, the word give is used, as opposed to lend, but on the other hand, he states that he will be a guarantor.

Rabbi Yitzḥak says in resolving this dilemma: When one employs the language of a standard guarantee, it is a standard guarantee, even if he also used the word give. And when one employs the language of an unconditional guarantee, it is an unconditional guarantee, even if he also used the word lend.

Rav Ḥisda says: All of the expressions mentioned in this discussion are expressions of an unconditional guarantee, except for: Lend money to him and I am a guarantor.

Rava says: All of the expressions mentioned in this discussion are expressions of a standard guarantee, except for: Give money to him and I will give the money back to you.

Mar bar Ameimar said to Rav Ashi: My father said the following: If one says: Give money to him and I will give the money back to you, this expression binds the guarantor to such an extent that the lender has no claim against the debtor at all; his only option is to collect the debt from the guarantor.

The Gemara rejects this last statement: But that is not so. Rather, the debtor is not exempted from dealing with the creditor unless the guarantor takes the money from the creditor and gives it to the debtor with his own hand.

§ The Gemara relates: There was once a certain judge who permitted a creditor to enter the debtor’s property and collect it for his debt before lodging a claim against the debtor himself. Rav Ḥanin, son of Rav Yeiva, overruled that judge and expelled the creditor from the seized property.

When Rava heard about this he said: Who is wise enough to perform such a matter, i.e., to issue this ruling, if not Rav Ḥanin, son of Rav Yeiva? He holds that a person’s property is a guarantee for him, i.e., it acts as a guarantor for the loan if the debtor does not repay it; and we learned in the mishna: One who lends money to another with the assurance of a guarantor cannot collect the debt from the guarantor. And we established that the mishna means that he cannot collect the debt from the guarantor at the outset, before seeking payment from the debtor himself. So too, he cannot collect the debt by taking the debtor’s property without first seeking payment from the debtor himself.

§ The Gemara relates: There was once a certain guarantor for orphans whose father borrowed money and died, and the orphans were minors, and this guarantor repaid the debt to the creditor before informing the orphans that he was repaying the debt for them. The guarantor now sought reimbursement from the orphans.

Rav Pappa said: Repaying a creditor is a mitzva, and orphans who are minors are not obligated in performing a mitzva. They therefore do not have to repay any debts owed by their deceased father until they reach the age of majority.

And Rav Huna, son of Rav Yehoshua, also said that the orphans do not have to repay the guarantor until reaching majority, but for a different reason: Say that perhaps the deceased gave bundles of money to his creditor before his death, and therefore some or all of the debt has been paid. As long as they are minors, the heirs would not be aware of this payment, but upon reaching majority there is a chance that they may examine their father’s papers and discover that their father had done this. Therefore, payment is deferred until they reach majority.

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

BavaBatra 174a explores the legal distinction between a standard guarantor and an unconditional guarantor based on specific phrasing used when lending money.