A review of some of this week’s daf yomi key concepts (Bava Basra)

By Rabbi Shmuel Wise

Q: What is an אסמכתא?

A: An אסמכתא is where someone agrees to a certain outcome if some expectation isn’t met. For example, the case we studied in the mishnah (168a): A borrower paid off part of his loan and rather than destroying the original document and drafting a new one with the reduced balance, he and the lender agreed to entrust the original loan document to a third party. The borrower then declared, “If I don’t pay the remaining balance by the due date, then I authorize the third party to hand the original document back to the lender” (which would enable him to collect the entire original balance).

Essentially what we have here is a person attempting to create a self-imposed penalty as a means of earning someone else’s confidence (hence אסמכתא, its root meaning, “rely”). R’ Yehudah, whose view is accepted as the halachah, argues that such an agreement is not binding. In our next masechta, Sanhedrin, on 24b, Rami bar Chama will apply the principle of אסמכתא to gambling: the gambler puts down his money on the hope that he will win; in the event of a loss he never truly intended to part with his money, making the winner’s act of taking the money an act of theft (see further Choshen Mishpat 207:13).

Fast-forward to Friday’s daf (173b) where we learned that not every “hopeful” verbal agreement falls under the definition of אסמכתא. The Gemara there initially suggests that the commitment of an ערב, guarantor, is an אסמכתא. Seemingly this is a sound argument since the guarantor only agrees to pay if the borrower cannot. So we have a financial commitment only if things don’t play out as he hopes; ostensibly, a clear-cut case of אסמכתא. However the Gemara there points out this cannot be, for the halachah does recognize a guarantor’s commitment as binding even though, as mentioned earlier, the halachah is that אסמכתא is not binding.

Why indeed is the ערב’s agreement not merely an אסמכתא? The Gemara explains that what gives the ערב agreement substance is the fact that the guarantor feels good that he is being trusted to guarantee this loan. The psychological candy that the ערב receives in the transaction makes his agreement more meaningful and it is therefore safe to assume that he fully resolved to pay in the event that the borrower is unable to. That’s always the purpose of halachic acquisitions: to change an agreement of “mere words” into a meaningful commitment that results in an actual obligation that can be enforced in beis din.

Q: What is the concept of ערב?

A: As mentioned above, the basic idea of ערב is that we can have a third party guarantee (or “co-sign”) a loan, and that person then becomes halachically bound to pay. In your typical ערב arrangement, though, the lender can only collect from the ערב if he first attempted to collect from the borrower himself. If the borrower can’t pay, then the lender collects from the ערב, who will then seek compensation from the borrower.

Although that is the Gemara’s conclusion about how a typical ערב works, the Gemara (173b) began with a seemingly bizarre understanding of how ערב works. The Gemara initially understands that even if the borrower cannot pay, as long as the borrower is alive and present, the lender’s permission to seek payment from the ערב is not activated. “You gave me this guy (the borrower)–here, I’ve given him back to you!” the Gemara suggests the ערב can say. The Gemara goes on to reject this understanding, arguing that this would defeat the whole purpose of an ערב, which is to guarantee payment of the loan. The Gemara concludes that indeed if the borrower doesn’t pay, the lender can collect from the ערב.

We cannot continue this discussion without attempting an understanding of the Gemara’s “hava amina,” or initial understanding. Could it be that the hava amina missed the boat on the whole purpose of an ערב? If you listened to that day’s audio shiur, you may have caught how I tried to take a stab at this. My conjecture was that having the borrower himself alive and present–even if he is utterly penniless–may indeed prevent the ערב’s obligation from being activated, because he does have an earning capacity. So the Gemara thought that the ערב could say: “You can’t come after me yet–for here is the borrower, an able-bodied person; set him to work and your loan will soon be paid!” The Gemara ultimately concludes, though, that the understanding in an ערב deal is to provide the lender with a guarantee to be immediately paid.

The Gemara (174b) also made it clear that not all ערבים are created equal. The degree and particulars of the ערב’s obligation is affected by the nature of the loan (a kesubah loan would weaken, if not totally exempt, the ערב’s legal obligation), and whether the borrower has known assets (if he does, the lender would have to first try and collect from the borrower–even if the lender had reserved the right to collect from whomever he wants).

Another important distinction we learned about was the case of a קבלן, whom I like to refer to as a “super ערב.” The basic idea of קבלן is that here the guarantor uses a language that indicates a deeper commitment to shoulder the loan obligation. More specifically, the guarantor used a language that indicates that he is the one actually borrowing the money and that he is merely sending the borrowed money to this other fellow (the one who is practically borrowing the money). Consequently, this guarantor is no mere ערב, no, he is a (music, please) “Super ערב!” a.k.a., a קבלן. What’s unique about a קבלן on the practical level is that the lender can always choose to bypass the borrower–even if we know the borrower has assets–and collect from the קבלן.

Then there is the highest level guarantor of all (Super Duper ערב?): where the guarantor physically took the money from the lender and then handed it over to the borrower. Here, since the guarantor literally took the money from the lender, he is regarded as the one and only debtor, who then chose to loan the money to this other fellow (the one actually seeking the funds). Here the halachah is that the original lender only has the option of collecting from the “guarantor” who is actually regarded as, simply, his borrower. There is, however, one interesting twist in this case. Tosfos (173b) explains that in the event that borrower #1 (the “guarantor”) cannot pay, the lender could then seek payment from borrower #2. Now, ostensibly, borrower #2–who borrowed from borrower #1–has nothing to do with the original lender. However, Tosfos explains, we have here an application of “the lien concept of R’ Nosson,” which states that if B owes A, and C owes B, then A has a lien on C that can be relied on in the event B defaults. Therefore our original lender would get his money from borrower #2. Certainly a nice piece of complex Gemara to conclude our masechta with. Mazal tov to all מסיימים!

Rabbi Wise is maggid shiur of Real Clear Daf (realcleardaf.com). Real Clear Daf is a website and mobile app (for iOS and Android) that offers free audio shiurim and other resources to assist your journey through Shas. You can reach Rabbi Wise via email at rabbiwise@realcleardaf.com or by phone at 855-ASK-RCD1 (275-7231).

 

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