The ‘False’ Rumor
“If One Found Notes of Acquisition”
(Bava Metzia 14a)
Our Daf discusses a number of instances where documents are found and whether they must be returned, and to whom they must or must not be returned. The Daf selects complicated documents to carefully define obligations and potential obligations. Accordingly, great care must be taken when entering into and executing a contract.
The Helpful Father-in-law
The following incident took place in Israel: A stormy altercation between the owner of an electric appliance store and his wholesaler became so complicated that the matter was referred to a beis din. Analyzing the case, we shall try to clarify some elementary concepts of grantees treated by the sugya at Bava Basra 175b.
The wholesaler claimed that the shopkeeper owed him 9,000 shekalim, while the latter insisted he owed him nothing. The wholesaler subsequently stopped supplying him with goods till the shopkeeper was forced to sign a promissory note for the said amount, and even provide a guarantor. A few days later, the shopkeeper absconded and left the country, leaving his business bankrupt. The guarantor, his father-in-law, remained defenseless in face of the assumed responsibility. The father-in-law presented a complex but seemingly logical excuse to avoid paying the debt.
The Careless Son-in-law
“Please understand,” claimed the father-in-law before the beis din, “that my dear son-in-law is careless and negligent and that the conniving wholesaler therefore exploited him. Had I known the truth, not only would I not have signed but I would have taken the necessary steps to invalidate the wholesaler’s claim. Unfortunately, my son-in-law fooled me, telling me nothing. Thus, the guarantee, even though it bears my signature, should be considered an erroneous transaction (mekach ta’os) and as such should have no legal validity.”
‘I’m as Rich as Korach’
The claim of mekach ta’os is commonly heard in cases involving guarantees. In a certain case, for example, a guarantor claimed that he only agreed to guarantee a loan due to the fact that the borrower had described his enormous fortune, an accumulation of assets throughout the world. Of course, that proved to be fiction. Would this, indeed, be considered a mekach ta’os? There is no doubt, after all, that he would not have assumed such a responsibility if he had known the true facts about the borrower’s shaky financial condition.
A Guarantor Is Only Beholden to the Lender
Nevertheless, such a claim, even if proven true, is not halachically supported, as a guarantor obligates himself only to the lender. The borrower merely acts as a mediator to secure guarantors for the lender. In other words, there was indeed a regrettable misunderstanding here, but no grounds to invalidate the guarantor’s signature. Consider the following example: An individual heard that a certain shop was selling utensils in which it was purported that diamonds had been hidden. He rushed to the store and bought a huge quantity of items from the confounded shopkeeper, who failed to understand the customer’s enthusiasm. After a long night of breaking the utensils and poring through them, the disgruntled customer realized that they held no diamonds. Despite his deep disappointment, it is obvious that he cannot claim that his purchase was a mekach ta’os. A vendor is not supposed to know a customer’s intentions. “He wanted porcelain? I sold him porcelain.” If he has any claim, he should direct such to the rumormongers.
By the same reasoning, a guarantor, in his responsibility to the lender for the borrower’s debt, cannot claim that the borrower deceived him. The lender holds the guarantor’s signed guarantee and is not limited by any such deception. As long as the guarantee is free of conditions, such claims cannot invalidate the guarantor’s signature. The guarantor assumed the unconditional responsibility to pay in the borrower’s stead and has only to learn a lesson for future circumstances (Emek HaMishpat 2:9).
Canceling of a Guarantee
The link between a guarantor and a lender is so direct that if the former wishes to retract his guarantee, he must inform the lender accordingly before the execution of the loan. It never suffices simply to inform the borrower, because by doing so, he has not invalidated his guarantee (Nesivos HaMishpat 122, s.k. 3).
Apropos of this concept, we would like to cite the following case brought before a beis din involving the attempted cancellation of a guarantee by fax. Only a few hours before the execution of a loan, a guarantor discovered that the borrower could never repay it and sent a fax to the lender’s office informing him that he was canceling his guarantee. However, the lender noticed the fax only after lending the money. To prevent such errors, misunderstandings and unpleasantries, the beis din advised lenders to add a codicil to loan agreements stipulating that a cancellation of a guarantee is valid only if sent by registered mail, as customary regarding other contracts.
