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29 Kislev 5763 - December 4, 2002 | Mordecai Plaut, director Published Weekly









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Opinion & Comment
The Final Result is Preordained from the Start

by Rabbi Yerachmiel Kram

I will be surety for him; from my hand will you require him" (Bereishis 43:9).

Yehuda's Trusteeship

The simple meaning of the term "guarantor" is known to all. We know that arvus in common money-loan terms denotes the responsibility that a third person assumes to pay back a loan one person took from another in the event that the former defaults upon that loan.

The gemora maintains that the source for this form of responsibility, trusteeship or guarantee, is to be learned from this very parsha. "And Yehuda said to Yisroel his father: Send the youth with me and we will rise and we will go, so that we live and not die. We and you and our children. I will be surety for him; from my hand will you require him" (Bereishis 43:9).

Yehuda asks his father to send Binyomin along with him to Egypt, for without him he will not be able to buy grain and food for the entire family. To offset Yaakov's fears regarding Binyomin's safety, he offers to assume full responsibility for the youth. "From my hand shall you require him." (See the latest edition of the Binyan Zion responsa, paragraph 174, where he explains the obligations which Reuven and Yehuda assumed upon themselves towards their father.)

The nature of this trusteeship is very puzzling in this context, for the guarantor, in general, obligates himself to pay up a monetary loan which the borrower took upon himself. There does exist another kind of orev who is not involved with a transaction of money. In our case, there is no place for a guarantee in the conventional sense of a loan, for if Binyomin cannot present himself before his father when the brothers return from Egypt, then neither can Yehuda present him before Yaakov. If some misfortune were to overtake Binyomin, preventing him from returning to Yaakov, could Yehuda deliver a proxy in his stead that would be acceptable to Yaakov?


If our conventional concept of a guarantor does not suit this example, it must be that our definition is wrong. As mentioned, we imagine an orev to be the person who must make a loan good in the event that the borrower defaults on his payment. It makes no difference to the lender how he gets his money back, so long as he gets it at the designated time.

With this in mind, we can begin to understand Yehuda's guarantee, his vouching to return Binyomin to his father. His obligation is to return whatever it was that was promised, be it money or Binyomin himself. If money is involved, there are several ways of returning a debt: through the borrower or through his proxy, the guarantor, and thereby satisfying the lender. If, however, he pledges to return Binyomin, there is only one way to do so and that is to produce Binyomin in person!

Now we can begin to understand the halochoh which determines, "All of Jewry is responsible for one another" (Shavuos 39). According to this law, "Reuven" is a guarantor for "Shimon's" obligation to put on tefillin, while "Shimon" is a guarantor for "Reuven's" duty to make a blessing over the four species or to eat matzo on Pesach and so on. According to our primary definition of an orev, this has no meaning, for in the event that Shimon does not put on tefillin, Reuven cannot do it instead of him! Furthermore, even if Shimon were to agree to it and would appoint Reuven as his proxy, it would have no meaning or validity, for performing these two mitzvos: lulov and tefillin, by Reuven would not absolve Shimon of his obligation to do so (see Ketzos HaChoshen, simon 182).

But according to our new understanding it fits very well. The trusteeship of one Jew for his fellow is an obligation to see to it that his fellow Jew does what is required of him. When we say that Reuven is orev to Shimon, it means that he is responsible to see that Shimon puts on tefillin.

Reuven is obligated to put on tefillin himself and is also obligated to see that Shimon puts on tefillin.

The End is Preordained from the Start

The man who assumes orev responsibility does not obligate himself merely because he was asked to do so or because he is pressured by circumstances. The guarantor knows full well that the final eventuality was taken into account from the very start. He knows it is a mitzva to assume responsibility for the borrower but he also knows that his obligation is nothing to be taken lightly. He may actually be called upon to make his promise good. Therefore, he is not prepared to assume arvus where he questions his own power of standing up to his word. If it be money, he will only obligate himself within his means.

There is no doubt that when Yehuda declared that he would be answerable, he did so deliberately and with forethought. He knew in advance that he would be able to keep his word, that he could bind himself to such a promise. Otherwise, he would never have made such a statement.

A simple person rushes in to declare arvus blithely, thinking that he will not have to make his rash promise good. He believes in leaving well enough alone, in postponing the day of reckoning in the hope that it will not come. A wise person puts himself into the eventuality from the very beginning and imagines that he is the borrower; he does not delude himself into thinking that he will not have to pay. And just as he would not dream of taking a loan which he could not repay, so will he not sign as guarantor on a loan which he could not make good.

One of the disciples of the Chazon Ish, who felt rather close to his master, was once brazen enough to ask him to sign as a guarantor on a loan for him. The Chazon Ish agreed and signed. Time passed and the disciple approached him once again to sign upon a new loan. To his shock, this time his master refused. He explained, "It is not that I trust you less now than I did before. But the previous time I had money in my possession to repay the loan if need be, but now I do not."

This comes to teach us that signing on a loan for someone is not something to be taken lightly. A guarantor must know that he is bearing a very real responsibility, as if he were the borrower himself. And if he is not in a position to take out such a loan, that is, repay it in the event that the borrower reneges, he should not assume that responsibility to begin with.

A Hasty Promise is Shortsightedness

This is the reason why we find that many people write in their wills that they forbid their children to sign on loans for others, even though there is no such prohibition. At first glance, we might argue that it is difficult to forbid a person from borrowing money, for situations arise when there is no recourse but to borrow. This, however, cannot hold true with regards to merely signing as a guarantor on a loan. But it goes even deeper.

It seems that one cannot forbid a person to borrow money. If he does resort to borrowing, he probably intends to repay that loan in its proper time. If he is an honest person, he is surely aware at the time that he takes the loan that he will have to repay the money. But this does not hold true for the guarantor. He merely sees himself as doing another person a favor. He does not see himself in the position of repaying the loan that Reuven took.

When the borrower defaults on his loan and the lender calls up the guarantor to demand payment, this is the usual exchange, "What? He didn't pay you back? I'll give him a piece of my mind!"

Would the borrower ever dream to telling his creditor that he'll "give so-and-so a good talking to and make him pay?" Certainly not. He knows well enough that he is the one who must pay up. So why does the guarantor think that if he talks to the borrower, things will straighten themselves out? It is his full obligation to pay when the borrower has defaulted and not put pressure on him. His put-off is an evasion of his own responsibility as guarantor.

When Rabbon Yochonon told his students to "go forth and see which is the straight path which a person must follow," Rabbon Shimon replied, "To be cognizant of what will develop." And when he asked them to contemplate which was the way one must avoid most, he said, "To borrow and not pay back."

One who foresees future eventualities knows exactly to which degree he is able to obligate himself.

This material is taken from Rabbi Kram's sefer Vetalmudo Beyodo.

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