Translation:Shulchan Aruch/Choshen Mishpat/77

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Paragraph 1- If two individuals borrowed as one or purchased one item or accepted a deposit together, whether it was documented or oral, they are both co-signers to each other even if they did not say so explicitly. If one of them does not have property, the counterparty can collect the entire amount from the other. If, however, the party has property, the counterparty should not make a claim on the co-signer first because he has the status of a co-signer in all respects, and should collect the half each one owes from the respective party unless they stated explicitly that that they were kablanim on each other in which case the plaintiff may claim from either one. If one of the parties paid back the entire debt, he can collect the co-defendant’s portion from the co-defendant.

Paragraph 2- If one partner in a partnership borrowed from a third party for the sake of the partnership, the second partner is obligated in the loan, even though he did not partake in the kinyan at the time of the loan. This is only where the partner admits that that which his partner borrowed was for the sake of the partnership or the matter has been made clear with witnesses in which case it has the status of two that borrowed as one. There are those that say that if the matter was not made clear with witnesses but the partner admitted, he would not have to pay unless the money was in the partnership in which case the lender can collect from the other partner’s portion. This seems to me to be the appropriate way to rule.

Paragraph 3- If two individuals were co-signers for one borrower, when the lender comes to collect from the co-signer he can collect from whomever he desires. If neither of them had the amount owed, the may collect the remainder of the debt from second. It is written in Siman 132 that there are those that disagree with this. If one was a co-signer to two borrowers, when the lender comes to collect he should be informed which one of the two loans he is paying so that the co-signer can go back to the borrower.

Paragraph 4- If Reuven needed to borrow a maneh from Shimon and Shimon did not want to lend him until Yehuda and Levi joined as co-signers, and Reuven subsequently became poor and Shimon collected the entire debt from Levi and now Levi is claiming half the maneh from Yehuda and Yehuda responds that he did not co-sign for Levi but for Reuven and I only owe a third, his claim is meaningless and he must pay the half.

Paragraph 5- If Reuven makes a claim from two defendants that they borrowed as one and one defendant denies the loan while the other confesses, the testimony of the confessor would not obligate his co-defendant an oath. If there were three defendants and two confessed on themselves and on the third defendant, such defendant would not be obligated based on their words. If, however, the plaintiff produced a document against three defendants that they owe him such and such amount of money, and all the defendants claim that they repaid in front of each other and there is a specified amount on each defendant separately and there is no partnership, they can each testify for each other and we are not concerned that they are colluding with each other. See above 37:4-6.

Paragraph 6- If two individuals borrowed from one lender in a single document and the lender waived the debt for one borrower, he has only waived that borrower’s portion and can collect half the debt from the other borrower. There are those that disagree and say that the entire debt is waived and he cannot make any claim against the other borrower. With respect to how we rule, if the two borrowers were kablan co-signers in which case the lender could have collected the entire debt from either of them and he waived the debt for one of them, the entire debt is waived and even the second borrower would be exempt. If, however, they are not kablan co-signers, in which case the lender must make a claim against each borrower, and the lender waived for one of them, only half the debt is considered waived and he can collect half the debt from the other borrower.

Paragraph 7- If one borrowed from two lenders and one lender waived the entire debt, his co-lender’s portion would not be waived, even if both loans were written in one document. If the borrower reached a settlement with one lender, the other lender cannot say you already confessed that you owe us and should also settle with me because the borrower can claim I was generous with him but I will not be generous with you.

Paragraph 8- If two individuals are co-signers for one borrower and the lender waived the co-sign obligation of one of them, there are those that say that the lender can collect the entire debt from the second co-signer. See later in Siman 132.

Paragraph 9- If two individuals lent to, or deposited with, one, and one of them comes to take his portion, we would not listen to his claim until he brings the other party. If, however, the other party is in the city and heard that his co-lender wants to collect and he does not come, the defendant must give the plaintiff the entire amount. If the defendant claims that he only wants to give this plaintiff his portion and leave the partner’s portion in court, he may do so. This is only where the two deposited as one. If, however, one person deposited and died and left two sons and one of the sons comes to collect, we would give him his portion. See later in Siman 299 with respect to these laws.

Paragraph 10- If one borrowed from two and the document was written in only one of the lender’s names and the other lender makes a claim on the document that was not written in his name, the borrower can push him away and say I don’t owe you anything and such lender would require a power of attorney from the second lender. The lender written in the document, however, can collect the entire amount without a power of attorney. The same applies if both lenders are written in the document and each one can collect his portion. If a husband and wife borrowed from one, the wife is obligated to pay her half from her kesubah. If the husband or inheritors paid the entire debt, they may go and collect half the debt from the wife. If the husband is still alive and she claims that he took the entire money and I just entered into the contract with you, she would not be believed unless she had a migu that she paid him back and they have the status of two borrowers that borrowed together. If Reuven wrote to give his house to his son and wife and he wrote that they can only collect together and the son died, the wife can collect her kesubah from this gift because the word “together” was not coming to exclude a case where one died, but just that one should not collect half. See Evan Haezer 102:7.

Paragraph 11- If Reuven owed Shimon a maneh and subsequently Reuven and his wife borrowed a maneh from Levi and Reuven then died and after they collected his wife’s kesubah which was his earliest debt, there was nothing left for the debtors, and Levi is collecting a maneh from the widow, Shimon cannot go back to Levi and collect from him because Levi did not collect anything from Reuven’s property but from his wife’s property.