Story LineAdditional LoanRabbi Meir Orlean
Mr. Mandel had lent Mr. Lewin $5,000, documented with a proper loan document. A year later, he approached Mr. Lewin with the document and demanded payment.
"I repaid you $5,000 three months ago," Mr. Lewin said. "Don't you remember?"
"That money was for a former loan," replied Mr. Mandel. "The loan connected with this document remains outstanding."
"What are you talking about?" asked Mr. Lewin. "I borrowed only once, and repaid you."
"No, I lent you twice," insisted Mr. Mandel. "That's why I am still holding this document."
"I refuse to pay," said Mr. Lewin adamantly.
Mr. Mandel sued Mr. Lewin before Rabbi Dayan's beis din.
"Mr. Lewin owes me $5,000," Mr. Mandel claimed, presenting his loan document
"I repaid Mr. Mandel," responded Mr. Lewin.
"Do you have a record of the payment?" asked Rabbi Dayan. "A copy of the check, proof of transfer, or receipt from Mr. Mandel?"
"No, I don't," replied Mr. Lewin. "I paid Mr. Mandel cash and didn't bother to get a receipt. I trusted him, and didn't expect him to turn around like this. Mr. Mandel himself admits that I paid him $5,000 – ask him."
"Did Mr. Lewin repay you $5,000?" asked Rabbi Dayan.
"He did pay me $5,000 three months ago," acknowledged Mr. Mandel, "but I had lent him twice. That payment was for the other loan, which was undocumented; the loan associated with this document was not repaid."
"What do you say about that?" Rabbi Dayan asked Mr. Lewin.
"I deny the existence of another loan," answered Mr. Lewin. "I borrowed only once, with this loan document, and repaid $5,000, as Mr. Mandel himself acknowledges."
"The claims are clear," said Rabbi Dayan. "Let us convene before issuing the ruling." The two litigants exited the room.
A short time later, they were called back in for the ruling.
Is Mr. Mandel believed that the payment was for another, undocumented loan?
"Since there is no proof of the $5,000 payment," ruled Rabbi Dayan, "Mr. Mandel is believed that there was another, undocumented, loan."
"Why is that?" asked Mr. Lewin.
"The Gemara (Kesubos 85a; Shavuos 42a) addresses our case," answered Rabbi Dayan. "A lender holding a loan document acknowledged that he received payment, but claimed that the payment was on behalf of another, undocumented, loan. The Gemara concludes that if there is evidence of the payment, the lender is not believed, and his loan document is countered. However, if there is no evidence of payment other than the lender's own admission, he is believed that there was another loan, based on migo." (C.M. 58:1)
"Remind me, what is migo?" asked Mr. Lewin. "I remember hearing that term."
"Migo is the Aramaic equivalent of 'mitoch,' and means 'due to the fact,' or 'since,'" explained Rabbi Dayan. "When a person can make a winning claim, but instead claims something else that is questionable, he retains much of the rights of the winning claim. Simply stated, if he is dishonest and fabricating a lie, he could have simply stated the other, winning claim, and won the case. Since the lender did not do so, it lends credence that his current claim is true, although questionable in its own right. This lends credence that his current claim is true, although questionable in its own right.
In this context, Mr. Mandel's claim that there was another loan is questionable, in its own right. However, since he could deny outright having received the $5,000 and would then be able to collect on the basis of his loan document, he is also believed when he says that he received the money but there is an additional outstanding debt. Had there been evidence of payment, though, Mr. Mandel could not claim that he didn't receive the money; migo would then not apply, and his claim that there was another loan would not be believed."
Verdict: The lender is believed and his document remains intact if there was no evidence of payment other than his admission, on account of migo; if there is evidence of payment he is not believed, and the document is countered.
From the BHI HotlineGuaranteeing the Guarantor
Q: A yungerman wants to rent an apartment I own, and I’m concerned that he won’t be able to pay his rent on time. I really need the funds on time each month, because I rely on the rent to cover my mortgage, so I requested that he have his wealthy relative sign as a guarantor on the rent. What steps must I take to ensure that this arrangement is halachically binding?
A: There are two types of areivim (guarantors): an ordinary areiv, and an areiv kablan.
An ordinary areiv agrees to repay the loan only if the borrower defaults and cannot pay. Therefore, the lender cannot approach the areiv first; he must approach the borrower beforehand, and only if he cannot extract payment from the borrower, even in beis din, may he approach the areiv and demand that he cover the loan.
An areiv kablan cosigns on the loan, and it is considered as though he borrowed the money directly from the lender. The lender therefore has the right to collect directly from the areiv kablan without even approaching the borrower.
The same halachos apply to a guarantor on rent. If you want to ensure that you will be able to approach the guarantor directly, without having to sue your tenant in beis din in order to see whether he himself can afford to pay, then you must stipulate that the guarantor accept upon himself to serve as an areiv kablan, which means he must give you a written statement that says, “Tein lo v’ani etein – give him and I will reimburse you” (see Shulchan Aruch, Choshen Mishpat 129:17-18). It would seem, though, that using the word “cosigner” in the rental agreement would automatically mean that the guarantor accepts full responsibility for the rent.
Another key difference between an ordinary areiv and an areiv kablan might apply to your case. To understand this difference, we must first examine two halachic principles:
- A person is not liable if he accepted responsibility for an asmachta – i.e., a financial liability that wasn’t certain to transpire when a person entered an agreement – because in his heart he thought that he wouldn’t truly have to pay (ibid. 207:12).
Based on this halachah, the Gemara (Bava Basra 173b) wonders: how is an areiv ever obligated to pay for a loan he guaranteed, considering that he only agreed to pay on the chance that the borrower would default, which is a classic asmachta?
The Gemara answers that an areiv gains from serving as a guarantor on a loan, because the lender’s acceptance of him as a guarantor proves that he is trustworthy. In exchange for this benefit, he agrees to pay even though the outcome is uncertain.
- The Rambam (Hilchos Mechirah 11:16) writes that if a person commits to pay for something that has no set value – for example, he agrees to pay someone’s food bill for five years, and inflation may drive prices up – the agreement is not binding and he is not obligated to pay, even if he entered this commitment with a kinyan.
The Shulchan Aruch (ad loc. 60:2) writes that the poskim in the generations following the Rambam all disagreed with him and ruled that this agreement is binding, and we rule according to those authorities.
The same dispute arises in regard to a guarantor who agrees to cover an unspecified amount (Rambam, Hilchos Milveh 25:13, Shulchan Aruch, ad loc. 131:13).
The Sma (131:25) rules, however, that a guarantor on an unspecified amount is not binding since the agreement involves a combination of the two – i.e., an areiv, which is asmachta, and he agrees to guarantee an unspecified amount.
According to the Sma, since your tenant could live in your rental unit for many years, the areiv is guaranteeing an unspecified amount of rent money (Rema ibid. 60:2; cf. Shach 11). His agreement is, therefore, not binding (see Pischei Choshen, Halvaah 13, fn. 49; Eimek Hamishpat 2:25).
[However, according to Nesivos (61:10) this case might not qualify as an unspecified sum, because after the renter defaults on one month’s rent, the areiv might be able to demand that the landlord evict him.]
Many poskim write, however, that the Sma’s ruling applies only to an ordinary areiv, but an areiv kablan is not considered an asmachta, given that the lender or landlord has the right to approach him directly (Eimek Hamishpat 2:22). This ruling is not unanimous, however; some Rishonim and Poskim maintain that the issue of asmachta applies even to an areiv kablan (see Beis Yosef 129, mechudash 2), because he, too, assumes that the borrower or tenant will pay and he won’t have to (Shu”t Yerios Ha’ohel 1-3; Shu”t Ori V’yish’i 121).
In order for the agreement you are making with the areiv kablan to be fully binding, then, you should set a maximum amount that he is responsible to pay, so that it won’t be considered an unspecified amount (Shu”t Amudei Ohr 105:2).
Money mattersWithout Charge#477
Q: A broker or shadchan initially agreed that he would not charge. Does he have any claim later?
A: A broker or shadchan is inherently entitled to his fee for the benefit that he provided, but if he initially said that he would not charge, he cannot demand payment later and claim that he was insincere in forgoing his fee. Even so, if during the course of arranging the deal he retracts and says that he will not continue working without a fee, and the client requests that he continue, he must pay the fee. If he refuses, the broker can discontinue his efforts, but cannot hamper the deal or shidduch (Pischei Teshuvah, E.H. 50:16; Rabbi Akiva Eiger, C.M. 185:10).
Similarly, if the client stated before hearing the offer that he is not willing to pay the fee, and, nonetheless, the broker or shadchan made the suggestion, he cannot demand his fee. However, if the client stated so only after hearing the offer, he owes the fee when he concludes the deal, since he already received the benefit (Pischei Choshen, Sechirus 14:3-4).