Question
I signed as a guarantor on a loan for a friend. The lender is now demanding that I pay because the borrower has not repaid the loan. I always assumed that a guarantor only pays if the borrower truly cannot pay. However, I was told that it depends on whether I signed as a regular guarantor (Areiv) or as an Areiv Kablan. What is the difference, and when can the lender demand payment from the guarantor?
Answer
The answer depends on what type of guarantor was created.
A regular guarantor (Areiv) cannot generally be sued first. Rather, the lender must first pursue the borrower, determine whether he has assets available for collection, and only then turn to the guarantor.
An Areiv Kablan, however, accepts a much higher level of responsibility. The lender is entitled to collect directly from the Areiv Kablan even before attempting to collect from the borrower.
The practical challenge today is that many loan documents simply contain the words “I am an Areiv Kablan,” and the Poskim discuss whether that wording alone creates the full status of an Areiv Kablan.
Explanation
What Is a Regular Areiv? The Shulchan Aruch rules: One who lends through a guarantor may not first collect from the guarantor. Rather, he must first pursue the borrower. This means that if the borrower owns a house, has money, has collectable assets, then the lender must attempt collection from the borrower and may not simply choose the easier route of collecting from the guarantor. Even where no obvious assets are known, the lender must still investigate and pursue the borrower before turning to the guarantor.
Before Collecting From a Regular Areiv, the Borrower Must Generally Swear That He Has No Assets: Even after the lender has attempted to collect from the borrower and the borrower claims that he lacks the ability to pay, halacha does not automatically allow collection from the guarantor. The Shulchan Aruch rules that before a regular guarantor becomes liable, the lender must first determine that the borrower truly lacks collectible assets. Furthermore, the borrower is generally required to take an oath that he possesses no assets with which to repay the debt. The oath must also include that the debt remains outstanding and has not already been paid. This requirement was instituted in order to prevent collusion between the lender and borrower at the expense of the guarantor. For example, without such safeguards, a borrower could falsely claim insolvency in order to shift liability to the guarantor. Accordingly, a regular Areiv is not simply a second borrower who can immediately be pursued. Rather, he functions as a backup source of payment only after the lender has gone through the halachically required process of attempting collection from the borrower and establishing that the borrower truly cannot pay.
This is in sharp contrast to an Areiv Kablan, as we will now explain.
What Is an Areiv Kablan? An Areiv Kablan is fundamentally different. The Shulchan Aruch rules: “A Kablan may always be collected from first, if the lender wishes.” Accordingly, even if the borrower has money, owns property, or has a home, the lender may collect directly from the Areiv Kablan without first exhausting collection attempts against the borrower. Likewise, since an Areiv Kablan accepts primary liability, the lender may proceed directly against him without first requiring this process of investigation and oaths from the borrower. This is why the distinction is so significant.
How Does One Become an Areiv Kablan? Here we arrive at the major discussion. The Gemara teaches that not every use of the words “Areiv Kablan” automatically creates the halachic status of an Areiv Kablan. The classic language required by the Gemara is: “Give him and I will give you.” (Ten lo va’ani eten lach.) This wording demonstrates that the guarantor is independently obligating himself to the lender. However, merely saying: “Lend him and I will be a Kablan” without saying the words “and I will give you” is the subject of dispute among the Rishonim and Poskim, with the Michaber and Rif and Rambam taking a lenient approach that he is not an Areiv Kablan, and the Rama and Rosh and Tosafus ruling that he is nevertheless an Areiv Kablan. Now that we’ve established the status of the oral statement of Areiv Kablan let us discuss status of a signed document with the words Areiv Kablan.
The Laws if Someone Simply Signed “Areiv Kablan”: This is extremely common today in loan documents. Most loan documents contain language such as: “I hereby sign as an Areiv Kablan.” There exists a major dispute among the Poskim whether such wording automatically creates full Kablan liability. The Rama and Rosh maintain that it does, while the Shach and Terumas Hadeshen maintain that unless the precise language required by Chazal was used, the signer remains only a regular Areiv. Because of this dispute, many Poskim recommend that loan documents explicitly include: “I said: Give him and I will pay you.” which satisfies all opinions. If this wording is not used and rather the previous wording is used, then it is subject to debate as we stated and the Areiv can claim Kim Li like the Michaber that he is not considered an Areiv Kablan. Nonetheless despite this, is still one more major halachic aspect we need to take into account, and that is the contemporary practice in commercial civil law.
The Modern Custom: Contemporary loan documents and Gemachim generally rely on commercial practice. Today, when someone signs: “I am an Areiv Kablan” the common legal understanding is that he is accepting Kablan liability. Now, when it comes to commerce, Jewish law does not only take into account the rulings that come out of the Talmud and Rishonim but also accepted custom in commerce which can set the law according to Halacha between two parties. Accordingly, one can argue that since according to current commercial practice it is accepted that the wording of “I am an Areiv Kablan” within a signed document is accepted to mean an Areiv Kablan that therefore this also is the halacha despite the above dispute. Practically, due to the above, many batei din therefore enforce the agreement as an Areiv Kablan based on accepted custom and commercial usage, despite the above dispute. Nevertheless, there exists an important limitation. Even where modern batei din recognize the signer as an Areiv Kablan, the common practice is still not to immediately pursue the guarantor as would be allowed by a true Areiv Kablan. Rather, lenders first attempt collection from the borrower through the normal process of reminders, demands, and collection efforts. Only after those efforts fail do they generally turn to the guarantor.
Practical Summary
| Type | Can Lender Collect First? |
| Regular Areiv | No. The lender must first pursue the borrower. |
| Areiv Kablan | Yes. The lender may choose to collect from him first. |
| Signed “Areiv Kablan” on a modern loan form | Common practice in batei din is generally to treat him as an Areiv Kablan. |
| Preferred wording according to many Poskim | “Give him and I will pay you.” |
Sources
Difference between Areiv and Areiv Kablan: Michaber C.M. 129:8 and 15; 153:8; Bava Basra 173-174
Shulchan Aruch that a regular Areiv cannot be collected from first unless the borrower is sued and proven to have no way of paying: Michaber C.M. 129:8; 153:8-9
Shulchan Aruch that a regular Areiv cannot be collected from first until the Loveh takes an oath that he cant pay: Michaber C.M. 153:8-9
Shulchan Aruch that an Areiv Kablan may be collected from first: Michaber C.M. 129:15
What defines an Areiv as an Areiv Kabaln – The Gemara’s formulation “Give him and I will give you” makes the person an Areiv Kablan and dispute if says simply “I am Areiv Kablan”: Michaber and Rama C.M. 129:18-20; Rambam Malveh Veloveh 25:5; Bava Basra 174a; Not Areiv if did not say “Give him”: Michaber ibid; Rambam ibid Rif Bava Basra ibid; Yes an Areiv Kablan even if did not say: Rama C.M. 129:18-20; Tosafus Bava Basra ibid; Rosh Bava Baasra 10:41; Rashbam Bava Basra ubud; Mabit 2:102;
Treating “Areiv Kablan” wording as an Areiv Kablan: Yes: Rama C.M. 129:18-20; Rosh Bava Baasra 10:42; Aruch Hashulchan C.M. 129:12 No: Shach C.M. 129; Rashdam 9; Sefer Haterumos Shaar 35 1:40; Ittur 70; Chacham Tzevi 51, brought in Pischeiy teshuvah C.M. 131:3
The custom today to accept “Areiv Kablan” wording as Areiv Kablan: Michaber C.M. 42:15; Rama ibid and 61:5