Submitted by the Bais Hora’ah
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).