Rambam - 1 Chapter a Day

I.e., he signed the promissory note below - and after - the witnesses did.

Chapter 25, Halachah 1, which states that, even though a loan has already been given, a guarantor is liable if he affirms his commitment with a kinyan.

Because the statement of the witnesses did not include the guarantor’s commitment.

According to the Rambam, this is speaking about a situation where the loan was given before the promissory note was signed. Therefore, the guarantor must affirm his commitment with a kinyan (Maggid Mishneh).

This applies in a situation where the guarantor affirmed his commitment with a kinyan. If he did not do so, his commitment is not binding at all (Maggid Mishneh).

In this instance as well, although the witnesses signed the promissory note afterwards, since the statement concerning the loan and that concerning the guarantor’s commitment are not associated together, one might think that the witnesses did not speak of the guarantor’s commitment [Tur, (Choshen Mishpat 129)].

I.e., when the promissory note was written, the letter vav was added, thus connecting one phrase with another [Shulchan Aruch (Choshen Mishpat 129:7)].

In this instance as well, despite the fact that the guarantor’s name is associated with that of the borrower in the promissory note, if the guarantor does not affirm his commitment with a kinyan, his commitment is not binding at all (Maggid Mishneh).

Sefer Me’irat Einayim I29:27 interprets this phrase as meaning that there were also no properties that the lender had sold to others.

The Maggid Mishneh cites the source as Chapter 22, Halachah 1, which states that the borrower is given 30 days to sell his property to amass the funds to pay the debt. The Siftei Cohen 129:23 states that, if that were so, the Rambam should have qualified his words and stated that they apply only in a situation where the guarantor does not have cash on hand. He explains that the Rambam is referring to Chapter 13, Halachah 5, which states that unless specified otherwise, the duration of a loan is 30 days. It is as if the guarantor has taken a loan beginning at this time. He is given 30 days to repay it.

For as mentioned several times, any stipulation made with regard to financial matters is binding.

Chapter 25, Halachah 4, states that the lender has the right to approach the guarantor first. This halachah clarifies that he is not obligated to do so.

The Beit Yosef (Choshen Mishpat 129) notes that the Rambam’s wording implies that this applies only to a kablan, but not to an ordinary guarantor. Even if the guarantor was the one who took the money from the lender, the lender must first demand payment from the borrower. The Tur, however, quotes the opinion of Rabbenu Asher, who maintains that in this mater, there is no difference between a guarantor and a kablan. The Shulchan Aruch (Choshen Mishpat 129:19) cites both views without stating which should be followed.

He should not approach him at all. All his dealings should be with the kablan. It is as if the lender lent the money to the kablan, and the kablan must repay him.
The Maggid Mishneh quotes Rabbenu Tam, who explains that if the guarantor is bankrupt, the lender may demand payment from the borrower. For the borrower would have been obligated to the guarantor, and thus, employing the principle shi’budo D’Rabbi Natan (Chapter 2, Halachah 6), that lien can be transferred to the lender. This ruling is also cited by the Shulehan Arueh (loc. cit.).

The Shulehan Arueh (loc. cit.:10) states that this applies to any place with a 30-day journey. Accordingly, today with the advances in modern travel and communications, this law has ceased to apply.
In his Kessef Mishneh, Rav Yosef Karo also adds that this law applies only in a situation where the borrower does not have any property in this country. If he does have property that can be attached, that should be expropriated before the guarantor is approached. He also cites this law in the Shulehan Aruch (loc. cit.).

In his Kessef Mishneh, Rav Yosef Karo notes that, as evident from Halachah 5, this law applies only with regard to a loan supported by a promissory note, and not a loan supported by a verbal commitment alone. In his Shulehan Arueh (loc. cit.:12), he explains and qualifies this ruling.

This refers even to an ordinary guarantor, not only a kablan.
The Rambam’s statements with regard to a borrower who left heirs below majority are not accepted by all authorities. The Maggid Mishneh quotes the Ramban as stating that in such a situation, the lender may not collect from the heirs or the guarantor until the heirs reach majority.

See Chapter 2, Halachah 2.

I.e., the borrower will claim bankruptcy and thus require the guarantor to pay. He and the lender will then divide this money.

The Maggid Mishneh states that this law applies to a kablan as well as to an ordinary guarantor. The Siftei Cohen 129:32 notes that the Bayit Chadash does not accept the position of the Maggid Mishneh. Nevertheless, the Siftei Cohen maintains that had the Bayit Chadash seen all the opinions that support the Maggid Mishneh, he would not have differed.

The lender is not given the option of taking an oath and collecting the debt. The rationale is that the borrower’s word would be accepted if he claimed that he paid this debt (Chapter 11, Halachah 1). Hence, the lender must prove his assertion. Proof of this can be derived from the fact that, as stated in Chapter 13, Halachah 2, the lender may not expropriate the borrower’s property with regard to a loan supported by a verbal commitment alone (Maggid Mishneh).
When quoting this law, the Shulchan Aruch (Choshen Mishpat I29:I2) adds that in situations when we are more or less certain that the debt was not paid - e.g., the due date had not come before the borrower left, on his deathbed the borrower stated that the debt was not paid, or he was placed under a ban of ostracism for not paying and died while under that ban - the guarantor is required to pay.

As reflected in the following halachah, to receive payment from the borrower, the guarantor must pay the lender in the presence of witnesses.

The Maggid Mishneh states that the Rambam’s wording leads to the inference that if the borrower asked a person to serve as a kablan, the heirs are responsible if the kablam pays the debt on his own initiative. The rationale is that since the lender has the right to demand payment from the guarantor before approaching the borrower, the guarantor is not considered as having paid a debt that is not incumbent upon him.
This leads to a further concept. If the borrower had already been called to court, and it was discovered that he was bankrupt, even an ordinary guarantor may later demand payment from the borrower, despite the fact that he paid the debt without the borrower’s instructions. For in such a situation, the court would require the guarantor to pay the debt. Hence, the obligation is considered to be his own.

In such an instance, the guarantor should pay the debt only when required to do so by the court.

The Ra’avad differs with this ruling, maintaining that whenever a person who accepted the responsibility of serving as a guarantor pays a debt, he deserves to be reimbursed by the borrower. The Tur follows the Ra’avad’s view. The Shulchan Aruch (Choshen Mishpat 130:2) quotes both opinions without favoring one over the other.

Although the Tur differs concerning this ruling as well, most authorities agree that even those who differ with the Rambam with regard to the previous law should accept his ruling in this instance. This is also the perspective of the Shulchan Aruch (Choshen Mishpat 128:1).

See Chapter 11, Halachah 6 and notes, where it is explained that in these situations, we assume that a loan has not yet been repaid.

See Chapter 22, Halachah 3.

There is a difference of opinion among the commentaries if the intent is all heirs, including those above the age of majority, or only those below the age of majority. The Maggid Mishneh explains that the Rambam’s intent is that this applies with regard to all heirs, even those above the age of majority, while the Tur and the Ramah (Choshen Mishpat 130:6) state that it applies only when the heirs have not reached majority.

The fact that he paid the debt before notifying the heirs indicates that he was given resources, as explained in the following note. Otherwise, we assume he would make sure that he would be reimbursed before paying.

Since it is known that the gentiles seek payment from the guarantor before approaching the borrower, we assume that a person would not agree to serve as a guarantor for such a loan unless the borrower first gave him security that could be sold for the amount of the debt. This would enable him to pay the gentile if he was required to do so.

Similarly, if the court obligates the guarantor to pay, it is considered as if he notified the heirs first [Ramah (Choshen Mishpat 130:7)].

Although Bava Batra l74b, the source for this halachah, refers to heirs, the same concepts apply with regard to the borrower himself (Maggid Mishneh).

I.e., witnesses who testify that he paid the debt [Shulchan Aruch (Choshen Mishpat 130:3)].

It is not sufficient for the guarantor to take an oath that he paid the debt.

The commentaries note that the conclusion of the passage in Bava Batra states: “If the promissory note states (i.e., the lender wrote to the guarantor on the promissory note) ‘I received [the sum] from you,’ [the guarantor] may collect [his due].” As the Shulchan Aruch (Choshen Mishpat 130:4) writes, there are opinions that maintain that the guarantor has the right to expropriate property from people who purchased the borrower’s property. Others maintain that he may expropriate property only from the borrower himself. They all agree that such a statement creates an obligation. Why, then, they ask, does the Rambam ignore the matter?

I.e., the guarantor does not desire to pay the debt, and the borrower seeks that he does.

In this situation, the guarantor seeks to be repaid for paying the debt, and the borrower - based on the principles mentioned in the previous halachah - desires to avoid having to pay him.

I.e., if the defendant denies the claim entirely.

A Scriptural oath is never taken with regard to a claim supported by a promissory note. Nevertheless, even when the loan is supported by a promissory note, the guarantor’s obligation does not have that status. Hence, such an oath may be administered.

At which time they receive an independent financial capacity. Until then, their financial capacity is subservient to that of the master or the husband. Nevertheless, as evident from the contrast to Halachah 11, even while a servant is subjugated to his master and a woman is married, he or she possesses a financial capacity. Hence, after the master’s or husband’s control is lifted, they are liable (Sefer Me'irat Einayim 132:2).

Based on Hilchot Mechirah 29:6, the Maggid Mishneh states that this applies only to a child who is above the age of six. When a child is younger, he is considered totally irresponsible financially, and a person giving him the Joan is considered to have thrown his money away.

A minor who causes damage to a colleague’s property is not held liable (Hilchot Chovel UMazik 4:20). Nevertheless, in this instance, since the minor himself derived benefit from the Joan, he is obligated to pay when he comes of age (Maggid Mishneh).
The Shulchan Aruch (Choshen Mishpat 235:15) quotes the Rambam’s opinion, but also two other opinions - one that maintains that the minor is not held liable when he comes of age, and one that he is liable if he borrowed for the sake of his livelihood, but not if he borrowed for other purposes.

As Ketubot 19a states (see Hilchot Mechirah 29:9), when witnesses sign a legal document, we assume that it involves an adult.

Sefer Me’irat Einayim 96:15 states that this is derived from Ruth 4:7, which describes a kinyan with the words: “And a man shall remove his shoe....” Implied is that a kinyan must be carried out by a man.

Although a present given by a minor is binding (Hilchot Mechirah 29:6), making a commitment as a guarantor is a more complicated matter, and it is unlikely that a minor will understand the obligation he is undertaking. Hence, it is not binding upon him.

Her husband cannot prevent her from paying - as is the case when she borrows money while married. (See Halachah 9.) The rationale is that the lien on her property was established before she married.

Hence, just as the lender cannot expropriate property that was sold to others, he cannot expropriate property that has come under the husband’s control.

See Chapter 22, Halachah 17, Hilchot She’ilah UFikadon 2:11, Hilchot Zechiyah UMatanah 12:12.

The Maggid Mishneh raises questions regarding this ruling, explaining that such a principle would certainly hold true with regard to the return of an entrusted article or a stolen article, for they are always considered to be the owner’s property, even though they are in the physical possession of another person. A loan, by contrast, is given for the purpose that it be spent. As soon as the money changes hands, it is no longer considered to be in the possession of the lender. What difference then does it make whether or not the woman has spent the money she borrowed? The fact that she had the right to spend it causes it to be considered her own.