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Should a person be a guarantor? There are two sides to the question. Shlomo
Hamelech warns several times against being a guarantor (Mishlei 11:15;
17:18; 20: 16-17 and other verses) and the Gemara also says that it is good
to avoid it (Yabamos 109b). The Rambam writes that a talmid chochom does not
become a guarantor. (Hilchos Dayos 5:13) The ShLA Hakodesh writes,
“It is good for a person to be yielding when dealing with other people.
Nevertheless, he should avoid being a guarantor, as Chazal instructed, “A
person should always guard himself against becoming a guarantor.” Therefore
I warn and command my children and students never to be a guarantor for
anybody, for I, too, have been sworn by my parents not to be a guarantor and
hereby command you with all the force of a command to avoid it.” But if a
person refuses to be a guarantor, he deprives the needy person of the
possibility of getting a loan. Indeed, it means that no one will lend out
money. How can we resolve these warnings against being a guarantor with the
necessity of making it possible for the poor to receive loans? The warning
should be understood as cautioning us to take the matter of being a
guarantor very seriously and not to sign as a guarantor simply because we
want to help someone out without examining the matter very carefully. A
person should realize that to sign as a guarantor is a serious thing, and
that the lender will turn to the guarantor to collect the loan if the
borrower doesn’t pay. A person who signs as a guarantee must be willing and
able to repay the loan. If he’s not, he shouldn’t sign, no matter how
reliable the borrower may seem to be. A guarantor must be certain that the
person for whom he is signing is honest and straight in all business
matters, for signing is a commitment to repay the loan if the borrower
doesn’t come though. Unfortunately, there are many who have gotten into
serious trouble by signing for anyone who asked.
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It is forbidden for the borrower to borrow with the intention of having the
guarantor repay the loan. In any case, if the guarantor repays a loan, the
borrower is obligated to reimburse the guarantor for the money he paid the
lender if the following conditions are met: If the borrower asked the
guarantor to guarantee his loan, if there are witness that the guarantor
repaid the loan or a document in which the lender states that the guarantor
repaid the loan to him, if there is a document which establishes the
guarantor, and if the documentation of the loan is in the possession of the
guarantor. The fact that the guarantor possesses that documentation is not
itself sufficient proof that he repaid the loan. There must also be
witnesses. The verse, “The wicked borrow and do not repay,” applies to a
person who borrows without any intention of repaying either the borrower or
the guarantor.
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Can the guarantor change his mind? if the loan has not yet been made, yes,
even though a kinion was made. If the loan was made on the basis of
the guarantor’s promise to guarantee the loan, but before he made a legal
commitment, the lender cannot collect from the guarantor if the guarantor
changes his mind and the borrower fails to pay back the loan. But if , at
the time when the loan was made, the guarantor committed himself to
guarantee the loan, he cannot back out.