SURETYSHIP (Heb. עַרְבוּת), one person's undertaking to fulfill the obligation of another toward a third person (called the arev, ḥayyav, and nosheh, respectively). In Jewish law fulfillment of an obligation is secured primarily through the assets of the debtor – "a man's possessions are his surety" (BB 174a; see *Lien) – and it is in addition to this that a person may serve as a surety for the fulfillment of the debtor's obligation toward his creditor.
Suretyship in the Bible and the Talmud
The biblical term ʿeravon ("pledge"), although philologically related to the term ʿarev or ʿarevut, occurs in the sense of an obligation secured by property and not personally (Gen. 38:17ff.; and see Targ. Onk. and Rashi thereto; cf. Neh. 5:3). The form of
A guarantee to present the debtor before his creditor and the court (on due date) is described in the Talmud as "the law of the Persians" (BB 173b). The existence of this phenomenon in Jewish law was hinted at in geonic times (She'elot u-Teshuvot ha-Ge'onim, no. 213), but Maimonides denied the validity of this form of suretyship (Yad, Malveh, 25:14; also see Hassagot Rabad and Maggid Mishneh thereto). The unfavorable attitude expressed in Proverbs toward the very act of undertaking a suretyship obligation is reflected also, although to a lesser degree, in the apocryphal books (Ecclus. 8:13; 29:17–20). Even in talmudic times suretyship is mentioned as one of the things a man is advised to avoid (Yev. 109a).
Formation of Suretyship
At first Jewish law recognized suretyship only insofar as it was undertaken before or at the time of the creation of the debtor's principal obligation (BB 10:7; "If a man loaned his fellow money on a surety's security…"), because in such an event "he had lent him the money through his trust in the surety" (ibid., 8). R. Ishmael decided that a written suretyship was valid even if it was given after creation of the principal obligation (ibid.; and cf. Ket. 101b–102b). Some of the early amoraim held that such a suretyship was valid even if it was undertaken verbally, but the halakhah was decided in accordance with the opinion of R. Naḥman, to the effect that a verbal suretyship is valid if given at the time of creation of the principal obligation ("at the time the money is handed over"); otherwise (i.e., "after the money has been handed over") it will only be valid if accompanied by a kinyan sudar (see *Acquisition, Modes of; BB 176a–b and Codes). The distinction stems from the general principle in Jewish law that the promissor's "final making up of the mind" (gemirat ha-da'at, see *Contract) is an essential precondition of a valid undertaking. Hence it may be presumed that this requirement is satisfied on the part of the surety whenever the loan is given "on his security" – even if undertaken verbally – since he is aware that the very loan is given on the strength of his suretyship; the position is different, however, if the suretyship is given after the execution of the loan transaction, since then the surety's final decision is not manifest unless his verbal undertaking is accompanied by the formality of a kinyan sudar. According to the view of the Babylonian amoraim, which was accepted as the halakhah, the possible absence of a gemirat ha-da'at was to be feared more with a suretyship undertaking than with any other kind of undertaking, since the very essence of the suretyship undertaking is tainted with the defect of *asmakhta – i.e., the surety's confident assumption that the borrower will pay the debt and the claim against him will never materialize. The invalidating effect of asmakhta on suretyship was overcome by the scholars through reasoning that the surety derives pleasure from being regarded as trustworthy and a man of means.
In the following cases a verbal suretyship without a kinyan is valid even if it is undertaken after establishment of the principal obligation: if it is given on the instructions of the court (BB 176b and codes); if on the strength of the suretyship the lender has returned to the borrower the bond of indebtedness or pledge (Sh. Ar., ḤM 129:3); and if the surety is not an individual but the community or its representative (Resp. Maharam of Rothenburg, ed. Prague, no. 38; see also *Public Authority). Alternatives to a kinyan sudar also came in to being. Thus, according to some of the posekim, a written suretyship obviates any need for a kinyan (Nov. Ramban, and Beit ha-Beḥirah, BB 176; Sh. Ar., ḤM 129:4). Suretyship may also be established by handshake whenever custom decrees that an obligation may be established in this way (Darkhei Moshe, ḤM 129:5; Rema, ḤM 129:5). It is interesting to note the historical changes concerning the use of a handshake as a means of establishing a suretyship obligation. In biblical times it had this function; it fell into complete disuse during the talmudic period, and it appeared again in post-talmudic times under the influence of its use in other contemporary legal systems. According to some of the posekim, even a verbal suretyship undertaken after the establishment of the principal obligation is valid if it is the custom to dispense with the need for a formal kinyan (see *Minhag).
Arev and Arev Kabbelan
The tannaim and the amoraim of Ereẓ Israel knew the regular form of surety (arev) in which the creditor must first sue and seek to recover payment from the debtor; only when the debt cannot be satisfied out of the debtor's property may the creditor turn to the surety for payment, because it is presumed that it was the surety's intention to become liable for the debt only in such an event. A creditor who wished to ensure effective recovery of the debt could stipulate with the surety that "I shall recover from whomever I choose," whereupon he could claim directly from the surety whether or not the debtor had sufficient property to satisfy the debt. R. Simeon b. Gamaliel's opinion, that as long as the debtor has property, payment
An explanation for the restraint on the freedom of contract in suretyship, contrary to the general principle of Jewish law that "contracting out of the Torah" is permissible in matters of civil law, lies in the apprehension expressed by the Babylonian amoraim about the surety's lack of final resolve when making a suretyship undertaking, and the resulting inference that the surety does not seriously intend to be bound by his undertaking as long as the debt may be recovered from the principal debtor – even if he has expressly agreed to it (Rashba, Nov. BB 173b). In post-talmudic times the scholars sought ways in which to overcome the restriction on the freedom of stipulation in suretyship because of its limiting effect on the scope of credit transactions. Some scholars interpreted the statements of the Babylonian amoraim to mean that they, like the amoraim of Ereẓ Israel, held the opinion that the creditor might claim directly from the surety once he has stipulated with the latter to recover "from whomever I choose" (Ibn Miggash, quoted in Sefer ha-Terumot, 35:2; Yad, Malveh 25:4; and see Elon, bibl., 203ff.). Other scholars considered the version "I shall recover from whomever I choose" to be ineffective and distinguished it from one worded "I shall recover first from whomever I choose," holding that this entitles the creditor to claim directly from the surety whether or not the debtor has any property (Ramban, Nov. BB 173b; Tur, ḤM 129:17, et al.). The halakhah was decided according to the former opinion (Sh. Ar., ḤM 129:14).
The post-talmudic socioeconomic realities spurred a number of further developments designed to enable the creditor to claim directly from the surety, including a regular surety, even without prior stipulation to this effect. Thus it was laid down that if the debtor is violent and does not comply with the judgment of the court, or if he is abroad and the suit against him involves many difficulties, or if he has died, the creditor may claim directly from the surety (Yad, Malveh 25:3; 26:3 and Maggid Mishneh thereto; Sh. Ar., ḤM 129:8–12). The creditor always retains the right to claim first from the debtor, even when he is entitled to claim directly from the surety, and the debtor is not entitled to refer him to the surety; however, if the surety is a kabbelan who has personally received the money of the loan from the lender and passed it on to the borrower, no legal tie will have been created between lender and borrower, and the lender will be entitled to recover the debt from the surety alone (Yad, Malveh 26:3; Sh. Ar., ḤM 129:15, 19).
Substance and Scope of Suretyship
The surety's obligation is secondary to that of the principal debtor; hence the validity of the suretyship obligation is coextensive with that of the principal obligation, and extinction of the latter automatically terminates the suretyship: "if there is no debt, there is no suretyship" (Resp. Maharashdam, ḤM no. 218). Thus, e.g., if the principal obligation is void because the debtor was acting under duress (see *Ones), the suretyship will be equally ineffective – even though it was undertaken according to the law (ibid. and Resp. Reshakh, pt. 1, no. 44). Moreover, the same result follows even when the underlying principal obligation is essentially valid but cannot be realized against the debtor on account of a procedural defect, as may happen if the name of the debtor and other details mentioned in a bond of indebtedness fit two persons and do not allow for his proper identification, thus barring proceedings against him. In such an event the surety, too, cannot be called upon for payment, not even in the case where he is surety to two debtors who have identical names (Bek. 48a; Tur and Sh. Ar., ḤM 49: 10; cf. also the contrary opinion of Rema, ḤM 129:8 and Baḥ thereon).
On the other hand, suretyship may be undertaken in respect of only a part of the principal obligation, and the surety may also stipulate that his obligation shall only be in effect for a specified period after the debt has fallen due (Resp. Rashba, vol. 1, no. 1148; Rema and standard commentaries to Sh. Ar., ḤM 129:1 and Tur, ibid. ; Arukh ha-Shulḥan, ḤM 129:7). Suretyship may be undertaken in respect of either an already existing principal obligation or one about to be established, the sole distinction between them being their two different modes of establishment (see above). The validity of suretyship in respect of a debt of an unfixed amount is a matter on which there is a division of opinion in the codes. It was held by some scholars that if the surety has said, "I am surety for whatever amount you shall give," he is liable for the whole amount, "even if one hundred thousand" (Yad, Malveh, 25:13; see Samuel b. Hophni, bibl., ch. 3). According to other posekim, the surety is not liable at all in such an event: "since he does not know what it is that he has bound himself for, neither can he have made a final resolve nor has he bound himself" (Yad, loc. cit.). A third opinion is that the suretyship is binding to the extent of the amount for which the surety may reasonably be presumed to have bound himself, with attention given to his financial means (Hassagot Rabad and Maggid Mishneh loc. cit.). The halakhah was decided to the effect that a suretyship for an unspecified amount is valid (Sh. Ar., ḤM 131:13).
Scope of the Surety's Liability
The suretyship obligation includes liability for the expenses incurred by the creditor in claiming payment, such as the costs of a legal suit (Sh. Ar., ḤM 129:10 and Sma n. 29), and for any other reasonable loss suffered by the creditor (Tur, ḤM 131:7–10 and Maharik, quoted in Beit Yosef, ibid., Sh. Ar., ḤM 131:7–8). According to the majority of the posekim, a regular surety is discharged from liability if the creditor, after due date of payment, neglects to recover the debt from the debtor when he has the possibility of doing so (Tur and Sh. Ar., ḤM 131:4; Beit Yosef and Baḥ thereto). Similarly, "if the debtor was present in the town when the debt fell due for payment and the creditor allowed him to depart the town, he cannot claim from the surety" (Keneset ha-Gedolah, ḤM 129; Tur no. 58). The surety is likewise discharged from liability if the creditor releases any of the debtor's property which he holds as a pledge (Resp. Rashba, vol. 1, no. 892; Sh. Ar., ḤM 129:8 and Rema thereto; Sma ḤM 129–26; Arukh ha-Shulḥan ḤM 129:26).
Suretyship in Respect of Different Kinds of Obligations
In general, suretyship may validly be undertaken with reference to all kinds of obligations, regardless of the manner in which they arise (for instance from loan, the most common case, tort (Git. 49b), and so on). In certain cases, however, this has been a matter of halakhic dispute, particularly with reference to the husband's *ketubbah obligation. Among the tannaim and amoraim of Ereẓ Israel, and for most of the period of the Babylonian amoraim, there was never any doubt that a person could be surety for the husband's obligations toward his wife in respect of her ketubbah (BB 9:8; BB 174b, in the matter of Moses bar Azri). However, in the sixth generation of the Babylonian amoraim, following on their raising the problem of the invalidating effect of asmakhta on suretyship (see above), they likewise called into question the measure of final resolve and seriousness with which the surety might undertake his obligation in respect of a ketubbah liability. There were two reasons for this: firstly, because it was considered that in such a case the surety intends no more than to perform a mitzvah and to bring about a matrimonial tie between the couple concerned; secondly, because in this case the husband undertakes to give his wife an amount which comes out of his own pocket and not one which the wife has initially expended – unlike the case of a loan, for instance, in which the creditor is made to incur an actual expenditure. Special requirements were accordingly laid down for the validity of suretyship as regards the ketubbah. Some scholars held regular suretyship to be entirely ineffective here, except if the surety is the groom's father (because of the kinship the existence of gemirat ha-da'at may be presumed), in which case it is valid if executed by kinyan sudar; other scholars held that regular suretyship is effective when executed by kinyan sudar, and that this formality is unnecessary when the surety is the groom's father. If the suretyship is of the kabbelan type, the scholars agree that it is valid in all cases and there is no need for a kinyan (BB 174b; Yad, Malveh 25:6; Ishut 17:9 and Hassagot Rabad thereto).
With regard to a gift, the scholars are further divided on the question of whether the suretyship undertaking in respect of this is to be treated like suretyship for the ketubbah (because in gift also the donee will suffer no actual loss if the transaction is not carried out), or whether it should be regarded otherwise since in the case of a gift it cannot be said that the surety's intention is the performance of a mitzvah; (Tur, ḤM 129 and Beit Yosef thereto, no. 5; Sh. Ar., EH 102:6 and Rema thereto).
A Surety's Right of Recourse Against Debtor
A surety has the right to recoup from the debtor whatever he has paid to the creditor in discharge of the principal obligation. In order for him to succeed in his claim against the debtor, it will not suffice for the surety to present the bond of indebtedness as holder thereof; he must prove – by way of the creditor's certification or in some other equally persuasive manner – that he has actually discharged the debt (Tosef. BB 11:15; Yad, Malveh, 26:7–8; Sh. Ar., ḤM 130:1, 3). The surety's right of reimbursement is to be explained either on the basis of an implied agreement between the debtor and the surety that the latter will be entitled to reimburse himself from the former if he discharges the principal obligation, or that upon receiving payment from the surety the creditor assigns to him (by way of subrogation) his right of recovery against the debtor (BB 32b and Rashbam thereto; Maggid Mishneh, Malveh 26:8; and see below).
The right of recourse against the debtor is available to the surety only when his suretyship has been solicited by the former and, in the case of a regular surety, only after the creditor has already proceeded against the debtor (Yad, loc. cit. 6; Sh. Ar., ḤM 131:2). For if he is a surety on his own initiative, "any person who wishes to avenge himself of his neighbor might do so by becoming surety for him in order to turn to the latter after discharging his debt" (Resp. Radbaz no. 2084); an unsolicited surety is in the position of a volunteer who pays another's debt without the latter's knowledge or approval and as such also has no right of action against the debtor (Ket. 107b–108a; Yad, loc. cit.; Sh. Ar., ḤM 128:1; see also *Unjust Enrichment). Suretyship established in the debtor's presence will be presumed to have been undertaken with his approval (Resp. Radbaz, no. 2084; Leḥem Mishneh to Yad, Malveh 26:6). There is also an opinion that the surety has a right of recourse against the debtor even if he has not been solicited by him (Maggid Mishneh, relying on the opinion of Rabad to Yad, Malveh, 26:6; cf., however, Tur, ḤM 129 and Resp. Radbaz no. 2084, where this view is contested and Rabad's opinion interpreted differently). The surety's right of recourse extends not only to the amount of the principal obligation but also to the expenses he has incurred in the matter, because it is presumed that the debtor "takes upon himself… to compensate for and make good all loss… even without expressly stipulating to this effect" (Resp. Rosh 18:7; Tur and Sh. Ar., ḤM 131:7ff.), except for unreasonable expenses such as "interest much above the customary" (Beit Yosef, ḤM 131, n. 7; and see above with regard to the scope of the surety's liability).
Plurality of Sureties and Debtors
If there are several sureties, the creditor may not claim more from each than his proportional share of the debt, unless he has expressly contracted for the right to recover the whole amount of the debt from any of them (Tosef. BB 11:15). Maimonides, contrary to this halakhah, held that the creditor may recover the whole of the debt from any one of several sureties, and Abraham b. David of Posquières was of the opinion that the matter is determined by local custom, but other posekim confirmed that a proportional share only may be recovered from each (Yad, Malveh 25:10 and Hassagot Rabad thereto; Sh. Ar., ḤM 132:3 and standard commentaries). Where several debtors are jointly involved in a single legal transaction – such as "two who borrow on the same bond… or a partner who borrows on behalf of the partnership" – some of the posekim hold that each is a principal debtor in respect of the whole debt, but the majority opinion is that each is liable as principal debtor in respect of his proportional share only and must be considered a regular surety as regards the rest of the debt; i.e., the creditor must first claim from each his proportional share, and only if one of them is unable to pay will the other be liable as surety for him (TJ, Shevu. 5:1, 36a; Yad, 5:9 and standard commentaries; Tur and Sh. At., ḤM 77:1–2; for further particulars see *Obligations, Law of).
In the State of Israel
In 1967 the Knesset enacted the Surety Law, which replaces the provisions of the Mejelle (Ottoman law) on this subject. Although largely based on Jewish law, it nevertheless deviates from it on one central matter. The law provides that "the surety and debtor are jointly and severally liable to the creditor, but the creditor may not require of the surety fulfillment of his suretyship without first requiring the debtor to discharge his debt" (sec. 8). The creditor is not required to make prior demand of the debtor if this need is waived by the surety, or if it is clear that the debtor has no property, or if service of the demand against him involves special difficulties. The law accordingly allows the creditor to turn directly to the surety, even a regular one, since a demand from the debtor is a mere formality and it is not necessary that legal proceedings be instituted against him. This accords with the attitude of both the Mejelle (arts. 643, 644) and English law, both of which dispense even with the need for a prior demand from the debtor, a requirement which is indeed of little practical value (E. Jenks, Digest of English Civil Law, 1 (19383), 277, no. 682). On the other hand, Swiss law (Code des obligations, para. 495–6) and the Nordic Draft Code of 1963 (see V. Kruse, A Nordic Draft Code (1963), para. 1301) accord with Jewish law in this respect and require the creditor, in the absence of an express agreement to the contrary, to claim first from the principal debtor and to exhaust execution proceedings against him before turning to the surety, except if there are special difficulties involved in suing the debtor. Swiss law furthermore recognizes the institution of Solidarbuergschaft (ibid. para. 496), which is akin to the arev kabbelan in Jewish law.
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Sources: Encyclopaedia Judaica. © 2008 The Gale Group. All Rights Reserved.