The Red Sea’s Argument
‘Elai And Toviah: Relatives Of A Guarantor’
(Makkos 7a)
Our daf opens with a query: Is a relative of an arev – a guarantor of a loan – considered a party to the case involving a loan that defaulted, and may he testify in the matter or not? The following interesting case of an arev will give us a greater perspective regarding the classification of an arev.
The Yam Suf, The Duke, and The Loan
During the difficult sojourns of the Jewish people in Europe, we were often forbidden to own land or join many different professions. Consequentially, many Jews earned their livelihood by lending money to gentiles. Collecting debts from the often belligerent gentiles was no simple matter.
On one occasion, a Russian nobleman approached Reuven, a Jew who lived in his province, and asked for a large sum of money as a loan. Reuven realized that it was very unlikely he would ever see the loan repaid. When the payment came due, he would not risk his life demanding the money. Yet on the other hand, refusing the request could also entail dire consequences. Instead, he approached his friend, Shimon, and asked him to loan the money to the nobleman. Shimon expressed the same concerns, so Reuven quickly assured him that he would sign as a guarantor. That way, Shimon would be confident to regain the money.
Sure enough, the nobleman failed to repay the loan. When Shimon approached Reuven and asked him to make good on his guarantee, Reuven refused, offering the following excuse: The Gemara outlines two kinds of guarantors, arev and arev kablan. When a co-signer agrees to be a simple arev, the lender must first demand his money from the borrower. If the borrower fails to pay, the lender may then approach the arev. When a co-signer agrees to be an arev kablan – in effect a guaranteeing receiver – the lender may go directly to him to demand his money, without first confronting the borrower.
Reuven claimed that he had never agreed to be an arev kablan. “Go demand your money from the nobleman,” he said. “If he refuses to pay, I will gladly make good on my guarantee.” This was of course a hollow offer, since Reuven knew well that Shimon would not dare confront the nobleman.
Arev and Arev Kablan
To this, Shimon replied that he had obviously intended to make Reuven an arev kablan. The whole reason that Reuven did not want to lend the money himself was because he knew that he could never confront the nobleman. However, Shimon was also scared to confront him, and for this reason only agreed to issue the loan because it was understood that in effect Reuven was the arev kablan, a guaranteeing receiver, who asked him to issue the loan so that he would not need to do so.
Their case was sent to Rabbi Shalom Mordechai Shwadron, author of Teshuvos Maharsham and grandfather and namesake of the famed darshan of our own generation, Rabbi Shalom Shwadron. The Maharsham (Responsa II, 158) answered by citing a fascinating aggadata (Pesachim 118b), in which we find a debate between the Yam Suf and Hashem, as it were. Whether we are meant to understand this debate literally, or if it symbolizes some deep secret of the Torah, is beyond the scope of this article. Nevertheless, we can learn a halachic inference to resolve the case in question.
The Sea Rebels
The Gemara interprets the verse, “They rebelled by the Yam Suf” (Tehillim 106:7) to mean that the Yam Suf itself hesitated to fulfill Hashem’s command. After the Egyptians had drowned in the Yam Suf, Hashem commanded it to spit out their bodies on the seashore, in order that Bnei Yisrael would see their oppressors dead and not fear that they were still being chased. “Does a master give a gift to his servant and then ask for its return?” asked the sea. The Yam Suf wanted to keep the bodies of the Egyptians as food for its fish (Rashi s.v. Shenassan). Hashem assured the Yam Suf that He would repay it with one and a half times what He took.
Later Repayment
“Does a servant dare demand payment from his master?” asked the sea. Hashem then assured it that the Kishon River would be His guarantor. The Yam Suf agreed and spat out the bodies of the Egyptians. Years later, when Sisera waged war against Eretz Yisrael, Hashem caused a giant wave to drown his soldiers and carry them down the Kishon River into the Yam Suf. The Gemara does not specify that the Kishon River was an arev kablan. Rather, it seems that the river was a regular arev. If so, how did this guarantee appease the Yam Suf, which had complained “Does a servant dare demand payment from its master?” Unable to demand payment from Hashem first, it would be unable to make a demand of the river. The Maharsham asks this very question, and deduces from here that in a case where the lender cannot demand payment from his master, the guarantor is automatically assumed to act as an arev kablan, even if he did not explicitly agree to this.
The same is true of Shimon’s loan to the duke. Since Reuven knew that Shimon would be unable to demand payment from the duke, it was automatically assumed that Reuven would be an arev kablan who may be approached first.
