Sa’if 8, Mechaber: A person borrowed money from a lender. At the time of the loan, the lender insisted that two additional people guarantee the loan in favor of the lender as arevim – guarantors. The lender then released one of the guarantors from his guarantee. The borrower defaulted on the loan. There are some halachic authorities who maintain the lender can still claim the loan from the remaining guarantor.
Ner Eyal: We have seen in Siman 77:1 that if two borrowers explicitly stipulated that each was an arev kablan for the debt of the other, the lender can collect the entire loan from any of the two borrowers he chooses.
The difference between an ordinary arev, guarantor, and an arev kablan lies in the language used by the guarantor. If the guarantor says to A, give B $1,000 and I will pay you back, he is an arev kablan. As such, A can proceed to collect the money directly from the arev kablan without attempting to first collect from B. This is because the language used did not include any words indicative of a loan. It was more indicative of a gift. It is as if the arev kablan appointed A as his agent to gift money to B. Having fulfilled his agency and advanced the money out of his own pocket, B, the agent, can go straight back to the principal to be reimbursed. If, however, words indicating a loan are used, such as “please lend B money and I will pay you back,” the rules of a regular arev apply. Accordingly, A, must first attempt to collect from B before proceeding against the arev.
We have also seen in Siman 77:6 that if the two borrowers explicitly stipulated that each was an arev kablan for the debt of the other, such that the lender would be entitled to collect the entire loan from any one of them and the lender forgives the loan to one them, the entire loan is forgiven and the other borrower is exempt too.
The case discussed in this Sa’if 77:8, however, is different.
Unlike the case is Siman 77:1 where there were two borrowers, here there is only one. One borrower cannot be a guarantor for himself. He needs others to guarantee his loan. Those who guaranteed his loan in this case were not also the borrowers themselves, as they were in Siman 77: 1. They merely guaranteed the loan of a third-party borrower. Accordingly, releasing one of the guarantors does not release the other. This is because in releasing one of the guarantors, the lender did not forgive the underlying loan as would have been the case if the guarantor had also been a borrower. The underlying loan survives as the obligation of the borrower even after the release of the first guarantor. This surviving obligation of the borrower continues to be guaranteed by the second guarantor whom the lender did not release.
The reason the Mechaber cites this as the opinion of some does not mean that others disagree with this ruling. All it means is that as we have seen, there is an opinion that holds that even where the lender did not release one of the guarantors, he cannot claim all the money from one without first proceeding and coming up short against the other.
