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Dear Yeshiva Family:
The Role of the Guarantor in Parashat Vayigash In this week's Parshah, we continue the gripping narrative of Yosef's time in Mitzrayim and the Shevatim's journey to reconcile with their mistake in selling him. The brothers unknowingly find themselves in the presence of Yosef, now the Viceroy of Mitzrayim, who demands that they bring their youngest brother, Binyamin, as part of his test to evaluate their regret over selling Yosef. Upon returning to Yaakov, the brothers plead for Binyamin to join them, and Yehudah steps forward with an extraordinary commitment: he offers his own Olam Haba as a guarantee for Binyamin's safe return.
This remarkable act sheds light on the Torah's perspective regarding the obligations of a guarantor. Why, indeed, is a guarantor required to pay when they themselves receive nothing from the transaction? What Torah principle enforces such an obligation? The Gemara (Bava Basra 173b) explicitly cites Yehudah's actions as a source for the legal validity of guarantor obligations, highlighting that one can impose upon themselves binding responsibilities even in the absence of direct benefit.
Torah-Level vs. Rabbinic-Level Obligations This principle leads to a significant halachic discussion: Is the obligation of a guarantor (arev) considered a Torah-level obligation (d'oraisa) or a Rabbinic enactment (d'rabbanan)? The Torah-level origin of this obligation is noteworthy, particularly given the Gemara's acknowledgment of a related challenge—the concept of asmachta.
Asmachta refers to a conditional commitment made without full intent to fulfill it, often because the individual assumes they will never need to act upon their promise. This concern underpins the prohibition of gambling, as gamblers typically enter wagers convinced they will win. If they lose, the payment lacks genuine willingness, rendering it a form of theft. A guarantor is assumedly in this category of an asmachta, for when a person promises to guarantee the loan he does not really assume he will eventually have to pay it. If the guarantor's obligation functions at a Torah level, it obviously overrides the concern of asmachta, establishing that all such commitments are binding despite their conditional nature. Gambling, therefore, might only be a Rabbinic prohibition. This distinction carries practical implications in halacha.
Practical Differences (Nafka Minos) in Halacha Case 1: Charity Promises One practical difference arises in cases of conditional promises to charity. For instance, someone might declare, "If I fail to complete Shas in this Daf Yomi cycle, or if I don't adhere to my personal guidelines for smartphone use, I will donate $1,000 to a yeshiva." Here, the person fully expects to meet their goal and does not anticipate paying. If asmachta is a Torah-level issue, the promise creating the obligation would be invalid, and they would not be required to honor the commitment. Conversely, if asmachta is only a Rabbinic concern, such promises to tzedakah might be upheld, as we can assume a Torah-level perspective to enforce charitable obligations[1].
Case 2: Recovering Funds from Gambling Another difference emerges in scenarios like retrieving money from gambling. Imagine someone loses in a poker game, and another participant seizes the money. If the kinyan is invalid on a Torah level, we would demand the money be returned, as the initial transfer lacks halachic standing. If, however, the obligation is valid biblically but only problematic Rabbinically, we would not condone the act but might refrain from forcibly retrieving the money[2].
Resolving the Debate Determining whether asmachta is a Torah-level or Rabbinic issue is crucial for resolving these questions. This analysis not only clarifies Yehudah's role as a guarantor but also provides broader insight into halachic obligations stemming from conditional commitments.
The Debate: Is Asmachta a Biblical or Rabbinic Problem? The Bach (Ch. M. 207:18) uses the story of Yehuda's guarantee for Binyamin to assert that asmachta is only a Rabbinic issue. He reasons that since the Torah acknowledges a guarantor's obligation, it must be that all asmachtos work on a biblical level. The Mordechai similarly cites this narrative as evidence to support this view.
However, the Shach (Ch.M. 207:18) raises a significant challenge. He argues that the Gemara concludes a guarantor's commitment is not a classic case of asmachta. The fundamental issue with asmachta is that the promisor does not genuinely expect to fulfill their promise and thus may lack the intent to obligate themselves fully. In contrast, the Gemara explains that a guarantor does derive immediate benefit from their promise.
The Immediate Benefit of Being a Guarantor The Gemara notes that a guarantor experiences a sense of honor and trustworthiness when others are willing to lend money based on their assurance. This psychological benefit—the satisfaction of being seen as reliable and trustworthy—is sufficient to assume that the guarantor genuinely intends to obligate themselves. In essence, the honor received serves as an intangible but real compensation, justifying their obligation.
Given this, the Shach questions how the story of Yehuda could serve as a proof that other asmachtos—where no immediate benefit exists—work on a biblical level. If the guarantor's obligation is unique due to this sense of honor, it cannot necessarily be extended to all forms of asmachta.
Resolving the Question: The Nesivos' Explanation The Nesivos (Ch. M. 207:15) addresses this challenge with an important distinction. He explains that the honor a guarantor receives would not be sufficient to validate their commitment if the underlying kinyan (legal transaction) were entirely invalid from the outset. In other words, if the Torah categorically rejected asmachta as a valid mechanism, then no amount of personal honor or intent could transform a non-starter into a binding obligation.
However, if the Torah fundamentally recognizes asmachta as a valid kinyan—but the Rabbanan imposed additional concerns, such as the possibility that the promisor didn't fully mean it—then the honor derived from being a guarantor could indeed resolve these Rabbinic concerns. The guarantor's sense of trustworthiness and satisfaction would reinforce their commitment, making the transaction valid.
Thus, the Nesivos argues that the Bach's proof to other asmachtos from the guarantor's obligation is valid, for from the case of a guarantor we can presume that asmachta works on a biblical level. This framework explains why the story of Yehuda can serve as a basis for understanding asmachta, even if the Rabbanan expressed reservations in other contexts.
The Challenge of the Ritva's Position The Ritva in Bava Metzia 69b introduces a fascinating yet complex halachic scenario regarding the nature of a guarantor's obligation. He discusses a case where a lender stipulates that, as a condition for granting a loan, the borrower must provide an additional payment (interest) to a third party. The Ritva rules that this arrangement constitutes a full violation of the Torah's prohibition of ribbis (interest).
The reasoning, according to the Ritva, is striking. He argues that, just as in the case of an arev (guarantor), where the guarantor becomes obligated because we view the transaction as though they directly received the loan money and subsequently passed it to the borrower, so too, in this ribbis case, the borrower's payment to the third party is halachically treated as if it first passed through the lender's hands. This creates a direct violation of ribbis on a Torah level (d'oraisah).
Reexamining the Arev's Obligation The Ritva's analogy implies that an arev is not merely receiving a psychological benefit, such as the honor of being trusted, but is halachically viewed as if they received the entire loan amount themselves. This challenges the Nesivos's (and really the Gemara's) explanation that the guarantor's obligation is based solely on the "good feeling" of being trusted. If the arev is treated as if they physically received the money, the Nesivos's resolution—grounded in the idea that honor alone validates the kinyan—falls apart[3].
A Contradiction in the Ritva's Own Views The Ritva's position appears even more puzzling when compared to his comments in a related halachic discussion. He rules that if a woman tells her fiancé, "Give the wedding ring to my friend instead of to me," and he does so on her instruction, the marriage is valid. The Ritva explains that just as an arev derives sufficient benefit from the honor of being trusted, which is equivalent to receiving monetary value, the woman's satisfaction in being listened to similarly constitutes a monetary benefit. In this case, the "good feeling" of being trusted effectively serves as the consideration for the marriage.
This creates an apparent contradiction: - In the case of ribbis, the Ritva views the arev as if they received the loan's entire monetary value.
- In the case of the woman, the Ritva suggests that the intangible benefit of trust or honor is itself sufficient to create a binding transaction.
How can we reconcile these two perspectives on the arev's obligation?
Practical Implications of the Ritva's Position This debate has significant halachic ramifications, particularly in the context of ribbis. Consider the following scenario: - Case Study: Reuven lends Shimon money with the stipulation that Shimon must pay $1,000 in interest to a third party. Later, Reuven and Shimon repent and seek to rectify their prohibited actions.
The question arises: how much of the interest payment must be returned? - If the Ritva's Ribbis Logic Applies
- If we adopt the Ritva's view from the ribbis case—that the third party's payment is halachically treated as though it passed through Reuven's hands—then Reuven must repay Shimon the full $1,000 to undo the prohibition.
- If the "Good Feeling" Model Applies
- If we instead adopt the Ritva's logic from the marriage case, where intangible benefits suffice to create obligations, then the repayment might be limited to the "value" of the good feeling derived by the lender. This would likely amount to a trifling sum, as the good feeling is subjective and far less tangible than the full monetary amount.
Summary and Open Questions The Ritva's position challenges us to clarify the underlying nature of an arev's obligation and its implications across various halachic scenarios. Is the guarantor's liability rooted in an actual transfer of monetary value, or is it based on the honor and trust afforded to them? The resolution of this question impacts not only theoretical halacha but also practical rulings in cases involving ribbis, marriage, and other financial commitments.
Resolving the Contradiction in the Ritva: Two Types of Guarantors Rabbi Shmuel Rozovski of Ponevezh offers a brilliant explanation to resolve the apparent contradiction in the Ritva's position. He distinguishes between two types of guarantors: - Arev Stam (Standard Guarantor):
- A standard guarantor becomes obligated primarily through the intangible benefit of being trusted. The lender's reliance on the guarantor generates a sense of honor, which in turn compels the guarantor to fully commit to their obligation. This feeling of trustworthiness motivates the guarantor to follow through, even if the promise was initially an asmachta.
- Arev Kablan (Primary Guarantor):
- An arev kablan operates on a fundamentally different level. Unlike a standard guarantor, the kablan assumes the entire responsibility for the loan, bypassing the borrower altogether. The lender can directly collect from the kablan without first pursuing the borrower. This elevated level of obligation requires a stronger kinyan—one that halachically treats the kablan as if they personally received the loan amount and then transferred it to the borrower.
Rav Shmuel explains that these two types of guarantors differ in how their obligations are formed: - The standard guarantor's liability arises from the honor of being trusted, a psychological and intangible benefit.
- The kablan's liability is rooted in a halachic construct that views them as having physically accepted the loan money, making their obligation far more binding.
Reconciling the Ritva's Cases With this distinction, we can address the Ritva's seemingly contradictory rulings: - In the ribbis case, the Ritva refers to an arev kablan. Because we view it as if the lender assumes full responsibility for the 'loan'. The lender said I will lend you money if you pay someone else. No one is supposed to pay that back and it is therefore in the category of Arev Kablan. Therefore, we will view it as if the lender accepted the full amount of the money, a violation of Ribbis, and passed the money on to the third party.
- In the marriage case, the Ritva refers to a standard guarantor. Here, the woman derives sufficient benefit from the honor of being trusted, which is considered a tangible value for halachic purposes[4].
By recognizing that the Ritva is discussing two distinct types of guarantors, we resolve the apparent contradiction.
Yehuda's Role as a Guarantor With this framework, we return to Yehuda's guarantee regarding Binyamin in the story of Yosef. What type of guarantor was Yehuda? It seems clear that Yehuda acted as an arev kablan. Unlike a standard guarantor, who only steps in if the borrower defaults, Yehuda assumed primary responsibility from the outset. There was no prior "borrower" obligated to return Binyamin; Yehuda himself became the first line of accountability.
Indeed, the Gemara explicitly notes this distinction, explaining that one cannot derive general laws of guarantorship from Yehuda's case because Yehuda was a kablan. His obligation was fundamentally different from that of a standard guarantor.
The Problem of Asmachta and the Kablan This insight, however, raises a new question. If Yehuda was a kablan, how can the Bach and Mordechai learn general rules about asmachta from his case? Asmachta—a situation where someone makes a promise they don't truly believe they'll need to fulfill—applies primarily to a standard guarantor. By contrast, a kablan's commitment is far more robust and is generally not subject to the uncertainties associated with asmachta, for he knows he can be approached for the loan under all circumstances.
In fact, many Rishonim maintain that there is no problem of asmachta in the case of a kablan. A kablan assumes full responsibility with no expectation of default, rendering the concept of asmachta irrelevant. If that's the case, how can the Bach and Mordechai derive laws about asmachta from Yehuda's actions, given that Yehuda's role was clearly that of a kablan?
While Rav Shmuel's explanation helps clarify the Ritva's position, it leaves us with a deeper puzzle. Yehuda's case, as a kablan, may not provide a valid basis for extrapolating rules about asmachta to other scenarios, such as gambling. This forces us to revisit the Bach and Mordechai's approach and ask whether their derivations from Yehuda's actions are truly valid.
Even a Kablan has the problem of Asmachta However, we can still explain the position of the Mordechai and the Bach, who indeed derive the laws of asmachta from Yehuda, by suggesting that they hold even a kablan is subject to the issue of asmachta. While most Rishonim understand that the asmachta issue arises specifically because the guarantor (arev stam) is not the first party responsible for payment, the Ritva offers a different perspective. According to the Ritva, the reason a guarantor's obligation is considered an asmachta is not tied to the fact that another party—the borrower—has primary responsibility. Instead, it stems from the guarantor's psychological assumption that the borrower will repay the loan and will not leave him responsible for covering the debt. We can explain that this assumption applies even to a kablan, where the guarantor takes on direct and immediate responsibility for repayment.
In Yehuda's case, although he was effectively a kablan, in the sense that he was the first line of defense and not a secondary guarantor, he likely believed that the Shevatim would never fail in their mission to protect Binyamin and return him safely. As such, his promise to forfeit his Olam Haba, though serious, could still be categorized as an asmachta, given the psychological element of assuming he would never actually have to make good on the guarantee.
Reconciling the Sevara of Gamar Umakni If it is true that a Kablan is also initially subject to the restrictions of Asmachta, then this allows us to explain the principle of gamar umakni—that the guarantor's internal commitment transforms the asmachta into a binding obligation applies to both an arev, and a kablan. However, while the gamar umakni principle applies to both types of guarantors, its role differs for each: - For an arev stam: The honor and trust bestowed upon the guarantor serve two functions:
- They are the reason the guarantor obligates himself, and
- They are the factor that eliminates the issue of asmachta.
- For a kablan: The honor and trust also play a role, but only in resolving the asmachta issue. The obligation itself stems from the much stronger nature of the kablan's commitment, which we view as if he accepted the full loan amount directly.
With this understanding, we can revisit the Nesivos's explanation and use it to reconcile how we derive broader rules about asmachtos from Yehuda's case. Even if the Ritva considers a kablan as having effectively "received the money" by accepting direct responsibility, this alone does not suffice to remove the asmachta issue. The principle of gamar umakni—that the honor and trust solidify the guarantor's internal resolve—applies universally, allowing us to conclude that all asmachtos can function on a Torah level.
Conclusion This nuanced perspective reconciles the positions of the Mordechai, Bach, and Ritva, allowing us to derive lessons from Yehuda's pledge that apply to all types of asmachtos. While the Gemara's assertion that honor obligates a person might suggest that Yehuda's case was not an asmachta, we have clarified—based on the Nesivos—that this reasoning only holds if asmachtos are considered a derabanan issue. Furthermore, even though Yehuda was ultimately shown to be an arev kablan and not a standard arev, we have demonstrated that a kablan could still be subject to the principles of asmachta if not for the resolution provided by the concept of gamar umakni.
Thus, we have established that it is indeed possible to learn from Yehuda's commitment to the broader principles governing asmachtos.
Wow!
Have an amazing Shabbos!
Rabbi Moshe Revah Rosh HaYeshiva, HTC - Beis HaMidrash LaTorah moshe.revah@htc.edu
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[1] See YD 258:10 and Ch.M. 207:19 that rules like this. [2] This particular topic and difference is dependent upon many factors beyond the scope of this article. [3] Truthfully, the Gemara's statement that there is pleasure derived from being honored can be understood as addressing only why there is no issue of asmachta. The Ritva's novel idea, however, is that the actual consideration for the guarantor's obligation is the monetary amount itself, rather than the honor or pleasure. If we interpret the Gemara in this way—and indeed, the Ritva's own language seems to support this interpretation—then the Nesivos's explanation remains intact, and there is no contradiction between the Ritva and the Gemara. Even if we say that the guarantor is considered as though he received the money directly, the principle of gamar umakni is still necessary to resolve the asmachta issue. That said, since a contradiction (stira) within the Ritva's writings exists regardless—as we will demonstrate shortly—we have chosen to frame the question in this manner. Ultimately, it becomes clear that the Gemara here refers specifically to an arev and not to an arev kablan. [4] See Chiddushei R' Shmuel (Kiddushin 102) why it is not viewed as a Kablan. | 
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