Translation:Shulchan Aruch/Choshen Mishpat/130

Paragraph 1- If a cosigner or kablan paid back the lender in front of witnesses before it was known that the borrower had already paid back, and the borrower claims he already paid back, he would not owe the cosigner anything. If the cosigner or kablan paid back after the lender had brought proof that he had not yet been paid back, however, the borrower must give the cosigner everything he paid back for him, whether the borrower owed the lender via a documented or oral loan, even if there were no witnesses.

Paragraph 2- There are those who say that this only applies where at the time of the loan the borrower told him cosign for me and he paid. If the cosigner got up on his own and become a cosigner or kablan and he went ahead and paid the lender and the borrower never instructed him to pay, however, the borrower would not be required to pay him anything. If the borrower told him, “become a kablan for me,”, even if he did not instruct the kablan to pay, and the kablan paid on his own, the borrower would be required to pay him, even before the lender took the borrower to court and could not find any property belonging to the borrower. If the borrower told him to be a cosigner for him but did not instruct him to pay and when the lender litigated with the borrower and did not find any of the borrower’s properties the cosigner paid, however, the borrower would be required to pay him. If the cosigner paid before the lender litigated with the borrower and did not find property, the borrower would not be required to pay anything. There are those who disagree and say that even a cosigner who is not a kablan who went ahead and paid on his own would be able to collect from the borrower. See above at the end of Siman 49 that a cosigner only becomes obligated in a situation where the lender can collect from the borrower.

Paragraph 3- The cosigner cannot collect from the borrower until he brings witnesses that he paid back the lender for him. So long as he does not bring witnesses, however, he cannot collect anything from the borrower, even if he has possession of the loan document. If the lender wrote to the cosigner that he accepted the money for the debt from him, that would enable the cosigner to collect from the borrower, in a case where the document explicitly states that he is a cosigner or the borrower admits, because otherwise how would we know he is a cosigner.

Paragraph 4- When the lender writes to the cosigner that he has accepted the payment for the debt from him, there are those who say that the borrower’s debt now has the status of a documented loan, allowing the cosigner to collect from purchasers that acquired property from the borrower. There are others that say that even though the lender wrote it, it would only be effective with respect to the borrower himself who is not believed to say he paid back, but it would not be effective to allow the cosigner to collect from properties the borrower sold, until the lender gave the loan document to the cosigner and transferred possession via a kinyan that is used for documents, in order to avoid having the cosigner’s claim be an oral claim. The same would apply if the borrower wrote to the cosigner at the time the cosigner took responsibility, “I hereby obligate myself and my properties, effective now, that any time you pay this debt you are a cosigner to so and so the lender, it is as if I accepted the money from you,” and the cosigner can collect from purchasers and adult orphans, because there is no greater documented loan than this one.

Paragraph 5- If a cosigner paid back the lender and did not ask for the document from him, the borrower would not be required to pay back that which the cosigner paid for him because the cosigner was negligent by leaving the document with the lender.

Paragraph 6- If the borrower died and the cosigner went ahead and paid back the debt before notifying the inheritors and we know that the borrower did not pay back his debt before he died, such as where he confessed before he died, he was ostracized and died while still ostracized or the repayment deadline had not yet arrived, the cosigner can collect everything he paid back from the inheritors. There are those who say that this is only with respect to minor orphans. With respect to adult orphans, however, they would need to pay if the cosigner had the document in his possession, in the manner that was explained in seif 4. This seems to me to be the primary ruling.

Paragraph 7- If the lender was a gentile, the inheritors are not required to pay because their father may have given the cosigner the entire outstanding debt because the gentile would make a claim on the cosigner first and that’s why the he paid back before informing the orphans. If the cosigner informed the orphans that the gentile is making a claim against him and he is going to give it, however, they would be required to pay. If the court forces the cosigner to pay, it is as if he notified the orphans.