Translation:Shulchan Aruch/Choshen Mishpat/131

Paragraph 1- If one agreed to be a cosigner, prior to the lender giving money to the borrower he may retract, even if they made a kinyan. If the lender was not concerned and gave the money anyway, the lender would have no claim against the borrower. With respect to a cosigner after the money was given, however, once a kinyan was made the cosigner cannot retract. There is no distinction on this between a cosigner and a kablan.

Paragraph 2- If one tells another that he cosigned for him and the other said he did not, if the cosigner tells the borrower you directed me to cosign for you and give the money and the borrower says he did it on his own or did not cosign at all, if the cosigner said he paid the lender in front of the borrower and the borrower says he did not or that he did but the borrower gave him what he paid or if the lender says you cosigned on 200 and he says I only cosigned on a maneh, in all these cases and in all similar cases, the party taking the money has the burden of proof and the defendant would either take a heses oath or a biblical oath if he partially confessed.

Paragraph 3- If a cosigner or kablan sees that the borrower is squandering his properties, they can demand the borrower release them from the cosign, even if it is before the repayment deadline.

Paragraph 4- If a cosigner comes to the lender at the deadline and warns him to make a claim against the borrower for his money and if he does not do so the cosigner will be exempt, and the lender does not want to and gave more time to the borrower, there are those that say that the cosigner would not become exempt, and it goes without saying that neither would a kablan. Even if the borrower had known properties and the cosigner tells the lender to litigate with the borrower and collect from such properties, and the lender gave more time to the borrower and in the interim the properties were destroyed, the lender can still collect from the cosigner. This law requires clarification because there are those who disagree. If the borrower was prepared to give his money to the lender and the cosigner sent to the lender to go and accept them or to send him a document to allow him to claim the debt, and the lender did not want to and the repayment was misplaced, however, the cosigner would be exempt. The cosigner is able to force the borrower to exempt him from the cosign once the deadline arrives because he can say I only agreed to cosign until now. If the lender was a gentile and the borrower gave the money to the cosigner to pay back the gentile and the gentile left the money by the cosigner, the cosigner must return the money to the borrower and he cannot say the gentile may remember because since he already cosigned for him and trusted him he needs to do so again.

Paragraph 5- If a Jew cosigned to a Jewish lender on behalf of a gentile borrower, and the cosigner took collateral from the gentile and gave it to the lender and the gentile came to the cosigner during twilight on Friday evening and says, “be a cosigner for me that I will return the collateral because I need it,” and the cosigner responds that it is already Shabbos and he cannot cosign and the gentile appeased the cosigner and the cosigner told the lender “I will cosign as I was,” and the lender returned the collateral to the gentile and later the lender makes a claim on the cosigner for the collateral and the cosigner claims that when he said “I will cosign as I was” he just meant “as he was” after the lender took possession of the collateral and the proof to that is that he refused to cosign for the gentile and he excused it with a Shabbos prohibition, the cosigner is in the right because the lender should have spelled out the cosigning. Nevertheless, the cosigner is required to assist the lender in collecting the debt from the gentile.

Paragraph 6- If a Jew had a gentile’s collateral in his possession and the gentile asks him to return it with a Jewish cosigner, and the lender agrees and the gentile brings a Jew who, in Hebrew, says, “I am warning you not to accept me as a cosigner,” but tells the gentile, “I am a cosigner,” the warning he provided is of no effect and he has the status of a cosigner at the time the money was given.

Paragraph 7- If Shimon acted as a cosigner for Reuven to a gentile lender, and Reuven left and Shimon had to pay back for him, and when Reuven returned Shimon made a claim against him and Reuven says Shimon never should have paid back because Reuven already paid back and he has a repayment document from the gentile, and Shimon responds that he had to pay back so long as he wasn’t provided the repayment document and the gentile had the loan document, Shimon is in the right and Reuven is required to pay whatever can be shown that Reuven paid the gentile, even if the gentile illegally claimed money from Shimon and forced him to give. The determination should be via witnesses, a recognizable letter from the gentile or a writing between the lines of the document. The same would apply for any cosigning to a gentile on behalf of a Jew. Even if the gentile antagonized the Jew due to the cosigning, the borrower would be required to remove him. This is only applies where the cosigner does not confess that the gentile exempted the borrower in his presence. If the cosigner admits that the gentile exempted the borrower or there were witnesses stating as such, and the gentile subsequently antagonized the cosigner, however, the borrower would be exempt. The cosigner would not even be believed with an oath to say what expenses he incurred due to the gentile antagonizing him. Rather, he must bring witnesses that he settled with the gentile due to the cosigning and then he can collect with an oath unless the witnesses or one of the witnesses clearly testifies as to the amount, in which case the cosigner can collect without an oath. If he did not set up witnesses, however, he has caused himself a loss. There are those that say that this that the borrower is required to pay for any unavoidable payment of the cosigner is only with common unavoidable losses. He would not, however, be required to pay for uncommon unavoidable losses.

Paragraph 8- Similarly, if two individuals contracted with a gentile and cosigned for each other, and the gentile found one of them and collected from him, the other individual would be required to pay his portion of whatever loss came from that gentile. If one of them was ready to pay his portion, and the loss was because of the other not paying, such other partner would be required to pay for the entire loss.

Paragraph 9- There are those that write that if Reuven sold a field to Shimon and Levi accepted responsibility on the sale, Levi would not be obligated. If they made a kinyan from Levi that he cosigns to pay the value of the sale any time someone makes a claim against Shimon, he would be liable. There are those that say that there is no issue of asmachta in the case of a cosigner on a guarantee at the time the money was given, and Levi would be obligated.

Paragraph 10- If a cosigner or kablan conditionally obligated himself, he would not be obligated, even if they made a kinyan from him because it is an asmachta. How so? For example, the cosigner says, “give to him and I will give to you if such and such happens” or “if such and such does not happen.” This is an asmachta because he did not make up his mind to give. If they made a kinyan from him that he would be required, effective now, on this money if the condition is fulfilled, we would follow whatever the condition is, because a kinyan that is effective as of now does not have the issue of asmachta. There are those that say there is no asmachta issue with respect to cosigning.

Paragraph 11- If Reuven purchased a field from Shimon, and Shimon wrote a document for him, and Reuven says to write a document on Shimon’s wife as well, who was not here, and Levi cosigned for Shimon that when she comes they will write the document on her, but when she came she did not agree, so Reuven made a claim on the cosigner to write a document on his properties and the cosigner claims that he is not required and the money should just be returned, the cosigner is in the right.

Paragraph 12- If one tells another to lend and he will cosign on the borrower himself, and will not cosign on the actual money, but at any time the lender wants he will bring the borrower to him or if he told someone after he lent money and made a claim on the borrower to leave the borrower alone and whenever he makes a claim, he will bring the borrower to him, and they made a kinayn on it, it is considered an asmactha and he would not be obligated, even if he made a condition and said if the he cannot bring him or if the borrower dies or flees he would be required to pay. There are those that say there is no issue of asmactha with respect to a cosigning. See above 129:8.

Paragraph 13- If someone did not specify an amount he is cosigning on, such as where he said “whatever you plan on giving, give to him and I will cosign,” “sell to him and I will cosign,” or “lend him and I will cosign,” according the Rambam the cosigner would not be obligated to pay anything. All those that came after the Rambam disagreed with him, and we rule accordingly.

Paragraph 14- If one tells another, “cosign for so and so and I will cosign for you,” it is as if he said “lend him and I will be a cosigner,” and no kinyan is required.