Commentary for Bava Batra 346:18

חסורי מחסרא והכי קתני המלוה את חבירו על ידי ערב לא יפרע מן הערב ואם אמר על מנת שאפרע ממי שארצה יפרע מן הערב במה דברים אמורים בשאין נכסים ללוה אבל יש נכסים ללוה לא יפרע מן הערב וקבלן אף על פי שיש נכסים ללוה יפרע מן הקבלן

conveys title,'<span class="x" onmousemove="('comment',' Supra 168a. ');">³³</span> a guarantor is responsible. According to R. Judah, [however], who said 'asmakta gives no title', the guarantor Is not responsible.<span class="x" onmousemove="('comment',' His guarantee to repay the debt is regarded as a mere asmakta, it being assumed that what he meant to convey by it amounted to no more than an expression of his conviction that the debtor would meet his obligation. Had he known that the debtor would default, he would not have given his guarantee. ');">³⁴</span> Said R. Ashi to Amemar: Surely, it is the regular practice<span class="x" onmousemove="('comment',' Lit., 'actions every day'. ');">³⁵</span> [of the courts to rule] that <i>asmakta</i> gives no title,<span class="x" onmousemove="('comment',' In accordance with the ruling of R. Judah. ');">³⁶</span> and [yet that] a guarantor is held responsible! — But, said R. Ashi having regard to the pleasure of being trusted [by the creditor] he determines to undertake the responsibility.<span class="x" onmousemove="('comment',' Though a similar undertaking would elsewhere be regarded as an asmakta which is not legally binding, the pleasure of being trusted transforms such an asmakta into a legal undertaking. ');">³⁷</span> IF, HOWEVER, HE SAID, 'ON THE CONDITION THAT<span class="x" onmousemove="('comment',' His guarantee to repay the debt is regarded as a mere asmakta, it being assumed that what he meant to convey by it amounted to no more than an expression of his conviction that the debtor would meet his obligation. Had he known that the debtor would default, he would not have given his guarantee. ');">³⁴</span> MAY EXACT PAYMENT FROM WHOM<span class="x" onmousemove="('comment',' His guarantee to repay the debt is regarded as a mere asmakta, it being assumed that what he meant to convey by it amounted to no more than an expression of his conviction that the debtor would meet his obligation. Had he known that the debtor would default, he would not have given his guarantee. ');">³⁴</span> WILL' etc. Rabbah b. Bar Hana said in the name of R. Johanan: This applies only in the case<span class="x" onmousemove="('comment',' Lit., 'they did not teach but'. ');">³⁸</span> where the debtor has no property,<span class="x" onmousemove="('comment',' [I.e., it is not known whether the debtor has any property from which the creditor could recover his claim, in which case, having regard to the stipulation, the guarantor can immediately be called upon to pay the debt, whereas in the absence of such a stipulation, the creditor would still have first to sue the debtor (Yad Ramah).] ');">³⁹</span> but where the debtor has property no payment may be exacted from the guarantor. Since, however, it is stated in the final clause: RABBAN SIMEON B. GAMALIEL SAID: IF THE BORROWER HAS PROPERTY, PAYMENT FROM THE GUARANTOR MAY IN NEITHER CASE BE EXACTED,<span class="x" onmousemove="('comment',' V. BaH, a l. ');">⁴⁰</span> one might infer that in the opinion of the first Tanna there is no difference whether he had or had not<span class="x" onmousemove="('comment',' Lit., 'no difference thus'. ');">⁴¹</span> [any property]!<span class="x" onmousemove="('comment',' But in either case the guarantor may be called upon to pay. How, then, could Rabba b. Bar Hana assert that the first Tanna speaks only of the case where the debtor had no property? ');">⁴²</span> — There is a lacuna [in our Mishnah].and the proper reading is as follows:<span class="x" onmousemove="('comment',' Lit., 'and thus it teaches'. ');">⁴³</span> IF [A MAN] LENDS [MONEY] TO ANOTHER ON A GUARANTOR'S SECURITY HE [MUST] NOT EXACT PAYMENT FROM THE GUARANTOR. IF, HOWEVER, HE SAID 'ON THE CONDITION THAT I MAY EXACT PAYMENT FROM WHOM I WILL', PAYMENT MAY BE EXACTED FROM THE GUARANTOR. This law applies only to the case<span class="x" onmousemove="('comment',' Lit., 'in what (are the) words said'. ');">⁴⁴</span> where the debtor has no property, but where the debtor has property, payment from the guarantor may not be exacted. And [in the case of] a kabbelan,<span class="x" onmousemove="('comment',' [H], a guarantor who accepts unconditional responsibility, an 'acceptor'. ');">⁴⁵</span> even though the debtor has property, payment may be exacted from the kabbelan.

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