Translation:Shulchan Aruch/Choshen Mishpat/129

Paragraph 1- If one lent to another and after he lent him, a third party said I will be the borrower’s cosigner, if the lender made a claim against the borrower and the third party said leave him alone and I will be the cosigner of if the lender was choking the borrower in the street to compel him to pay and the third party said leave him alone and I will be the cosigner, the cosigner would not be required to pay anything, even if he said he will be a cosigner in front of court. Nevertheless, if the cosigner paid the lender at the borrower’s instruction, the borrower would be required to pay back what he gave to the lender. If they made a kinyan from him that he is a cosigner on this money, however, he would be obligated, whether it was done in front of court or between him and the lender. If one tells the borrower I will be your cosigner for one day, it is of no effect.

Paragraph 2-If the cosigner said at the time the money was given, “lend and I will be a cosigner,” the cosigner would be obligated and no kinyan is required. Even if the cosigner did not explicitly cosign, but just told the lender to lend the borrower because he is certain he will pay back and he lied about being certain, the cosigner would be required to pay because it is as if he explicitly cosigned. Similarly, if the court made him a cosigner, he would be obligated even without a kinyan, such as where the court wanted to collect from the borrower and the cosigner said leave him and I will cosign, in which case he obligates himself with the benefit received of having the court trust him.

Paragraph 3- If the lender returned the document or collateral on the cosigner’s say-so, he has the status of a cosigner at the time the money was given. Similarly, if the lender exempted the borrower on the say-so of the cosigner, he would have the status of a cosigner at the time the money was given. There are those that say if the cosigner had the borrower’s money in his possession at the time he cosigned, he would be obligated in all cases.

Paragraph 4- There are those that say that a cosigner following the signature of the document, meaning after the witnesses had signed the document he wrote “and I cosign” and his handwriting is recognizable or witnesses testify to it, would be obligated without a kinyan to have his unencumbered properties collected, and there are those that say he would only be obligated with a kinyan. According to the Rambam, even a cosigner preceding the signatures would require a kinyan if he only cosigned following the giving of the money.

Paragraph 5- Just like a cosigner would not become obligated other than with a kinyan or at the time the money is given on in court, so too would a kablan not become obligated other than with one of these methods because there is no distinction between the two except with respect to the obligation of a kesubah or a dowry to the groom as is explained in Tur Even Haezer. In any case where a kinyan is required and no kinyan was made, the lender cannot even collect from unencumbered properties, even if the cosigner wrote a document to him and even if they shook hands if it is a place that does not have the custom to effect a kinyan in such a manner. Nevertheless, we would force him to comply with his oath. See earlier 73:8. If someone gave a gift to another and said to give it back to him after a certain amount of time and the recipient put up a cosigner, there are those that say that it is considered a cosigner at the time the money was given, while there are those that disagree.

Paragraph 6- If someone became a cosigner via kinyan and writes a document to the lender, the obligation has the status of a documented loan with respect to collecting from property in the hands of a third party. If he did not write a document, it would have the status of an oral loan and the lender can only collect from unencumbered property, notwithstanding the fact that the cosigning was created by a kinyan. There are those that say that where a kinyan was made, the lender can collect from properties in the hands of a third party, even though a document was not written. It seems to be that according to all opinions, one can collect from third party buyers in the case of a cosigner created in court, even if no document was written, because admission in court is like a document.

Paragraph 7- If the cosigner did not a create a separate document but put the cosigning in the loan document itself and it was written after the witnesses’ signature, the lender can only collect from unencumbered properties. If he wrote it before the witnesses’ signatures and he wrote “so and so is a cosigner” without saying “and” and the witnesses then signed, here too the lender can only collect from unencumbered properties because it is considered a new matter and he is not combined with the borrower and lender. If, however, the document stated “and so and so is the cosigner” with “and” included, in which case he is combined with the borrower and lender, and then the witnesses sign, the lender can collect from properties in the hands of third parties.

Paragraph 8- If one lends another via a cosigner, although the cosigner is obligated to the lender, the lender should not make a claim against the cosigner first. Rather, he should make a claim against the borrower. Even if the borrower only has inferior properties, he should not collect from the cosigner. Even if the borrower does not have known properties, such as real property, and the cosigner has known properties, he should not collect from the cosigner. Rather, he should go after the borrower because he may have moveable property. If the borrower said he paid back and the loan was oral, he would swear a heses oath and both he and the cosigner would be exempt. Even if the borrower was a gentile and said he paid back, the cosigner would be exempt. If the borrower said he never borrowed, however, the cosigner would be required to pay back. If someone borrowed an item from another and said if I don’t return it by such and such time I will give you such and such money, and he put up a cosigner on the money, although with respect to the borrower it has the status of an asmachta and he would be exempt, the cosigner is required to pay. See later at the end of 131:12. If the borrower sold real property and the lender himself signed, the cosigner would be exempt because the lender caused his own loss. In the case of a kablan, however, the kablan would be required to pay in such a situation.

Paragraph 9- If the lender went after the borrower but did not find any property, the borrower must swear that he has nothing, as the geonim instituted, before he can collect from the cosigner. The borrower must include in his oath the fact that he still owes this debt to the lender so that the lender and borrower do not commit fraud on the cosigner’s property. The lender cannot collect from the cosigner until 30 days following the date the cosigner was obligated to pay, unless a condition to the contrary was made. See above Siman 13 and 106.

10. If the borrower is not present, we must inform him if he is close enough that a messenger can go and return within 30 days. If the borrower will not pay, the lender can make a claim on the cosigner. If the borrower is overseas where it is impossible to inform him and he has no properties here or he is a tough person who will not listen to judgement, the lender may make a claim against the cosigner and collect from him and the cosigner will then go after the borrower and take the money from him or ostracize him until he pays back what the cosigner paid for him. This seems to be the primary ruling, notwithstanding the fact that there are those that disagree and hold that even where the borrower is a tough person who will not listen to judgment, one cannot collect from the cosigner until the court forces the borrower to listen to the judgment. If the cosigner says to give him time to bring the borrower to court and we know where the borrower is, we give him the time it takes to bring him. If we don’t know where the borrower is, we give him 30 days. Once the cosigner bring him to court he would be exempt until the borrower swears he has no money. If the cosigner brought the borrower on twilight on Friday evening and the borrower fled on Saturday night, the cosigner would not be exempt.

Paragraph 11- Even if the borrower has known properties in another country, the lender can collect from the cosigner first because we don’t tell the lender to spend 200 to collect a maneh.

Paragraph 12- This that when the borrower is overseas the lender may collect from the cosigner first without informing the borrower is only when the loan was documented. If the loan was oral, however, the lender cannot collect from the cosigner without a confession from the borrower because we are concerned that the borrower paid back, unless it was before the repayment deadline. The same applies where the borrower of an oral loan dies, and the lender cannot collect from the cosigner, unless it was before the deadline, the borrower confessed at the time of his death or they ostracized the borrower because he would not pay back and he died while still ostracized. If the borrower claims that he gave the repayment to the cosigner to give to the lender, he would take a heses oath and be exempt with a migu that because he could have said he paid back he is also believed to say he paid the cosigner and would be exempt because the lender trusted the cosigner. If the lender denies the cosign arrangement, the borrower would swear that he set up a cosigner and that he paid him back and he would be exempt.

Paragraph 13- All of the foregoing is only where the lender did not make a condition with the cosigner. If he made a condition that the lender would be believed to say he did not pay back, however, we follow whatever the condition is.

Paragraph 14- If the lender made a condition with the cosigner that he can collect from whomever he chooses, he may collect from the cosigner first, even if the borrower has properties. There are those that disagree with this. Everyone agrees that if the lender explicitly said I can collect first from whomever I want, the lender may collect from the cosigner first, even if the borrower has properties.

Paragraph 15- A kablan can always be collected from first if the lender prefers, even if the borrower has properties, unless the borrower wants to pay back. The borrower is not believed to say he paid back because the kablan should have made a condition. It seems to me that the lender would swear and collect.

Paragraph 16- If a lender is coming to collect from the kablan but does not have a document and he claims that he misplaced it and the borrower admits he did not pay back and the kablan claims the borrower may have paid back and the lender tore the loan document, there are those that say that the kablan is in the right.

Paragraph 17- What is a cosigner and what is a kablan? If he said to the lender, “give him the money and I will give it to you,” that is a kablan. If it was already after the money had been given, he would say “what you gave to the borrower I will give to you” and they would make a kinyan as was explained.

Paragraph 18- If he said, however, “lend him and I will cosign,” “lend him and I will pay back,” “lend him and I will be liable to you,” “lend him and I will give,” “lend him and I will be a kablan,” “give to him and I will be a cosigner,” “give to him and I will pay back,” “give to him and I will be required to give to you” or even if he said, “give to him and I will be a kablan,” all such cases are languages of cosigning. There are those that say that “give to him and I will be kablan” is kablan language, and this seems the appropriate way to rule. If a document says “so and so the kablan,” he would be a kablan because they certainly used language that was effective.

Paragraph 19- If the kablan took money from the lender and gave it to the borrower, the lender has no claim at all against the borrower, and he only bring a claim against the kablan. If the kablan does not have money, he can collect from the borrower via “Rav Nassan” unless the kablan waived the borrower’s debt. There are those that say that the same applies to a cosigner.

Paragraph 20- There are those that say that cosigning and kablanus are where the borrower asked the lender to lend him and the cosigner entered with a cosigner or kablanus language. If the borrower did not speak to the lender at all, however, but Reuven said to Shimon lend Levi money and I will pay back, lend him money and I will give to you or lend him and I will be liable, Shimon has no claim against Levi, even if he gave him the money directly. Rather, he only has a claim against Reuven who told him to lend and whom whose messengership he carried out by lending.

Paragraph 21- If a kablan did not physically transfer the money and the lender sold all his properties, if the lender wants to collect from the borrower’s purchasers, notwithstanding the fact that the kablan has properties, they cannot direct him to the kablan’s unencumbered properties. The same rule would apply where two individuals are responsible for one borrower and one of them sold his properties. With respect to a kablan that did physically transfer the money, however, the lender cannot collect from the borrower’s purchaser unless the kablan has no property.

Paragraph 22- A cosigner and kablan cannot collect from the borrower’s properties in the hands of third party buyers until the lender gives him the loan document and makes a kinyan with it using the standard kinyan methods on documents, in order to avoid having the claim being an oral claim. If someone vowed to pay someone to be a cosigner for him and he made a kinyan to give it, he would be obligated to pay what he vowed. If the cosigner did not accept a kinyan, the borrower would not have be required to pay just because of mere words.