Arev

          In order to induce a prospective malveh (lender of money) to issue a loan, the would-be loveh (borrower) can offer several safeguards.  For example, the loveh might draw up a shtar (written contract), or grant the malveh absolute reliability in any upcoming court proceeding.  By thus offering to expedite any potential suit in the malveh's favor, he alleviates his concerns and encourages the issuance of the loan.  Likewise, to assure payment, he might designate a particular item which the malveh will have "first dibs" on, known as "apotoki".  Possibly, however, the greatest incentive would be to offer the malveh a back-up plan, another person who will guarantee the loan.  Such a person is known as an "arev" and the nature of his obligation will be addressed in this article.  Unlike the loveh whose obligation was established by actually receiving the money, an arev does not present us with an easily discernible source for his obligation.  He might have involved himself of his own volition, but what form of chov (legally binding debt) is ultimately created to enforce payment?

 

          This question is directly addressed by the gemara in Bava Batra (173b).  After considering several pesukim which might allude to this phenomenon, the gemara concludes that an arev's chiyuv (obligation) stems from the hana'a (benefit) that he derives.  Though he does not receive any actual money, he still benefits indirectly from the fact that it was his guarantee that "clinched" the loan.  Ultimately, this spreads his reputation as a trustworthy person.  This is the hana'a which is responsible for the establishment of his obligation.  A similar gemara appears in Bava Metzia (93a) which discusses a shomer who volunteers to increase the degree of his responsibility, e.g. a shomer chinam legally responsible only for gross negligence, who agrees to accept responsibility for all accidents.  The gemara probes the mechanism by which he can accept these extralegal additional obligations, ultimately concluding that the benefit he derives from his enhanced reputation as a reliable watchman establishes a reciprocal obligation.  What exactly is the nature of this obligation and why should 'benefit derived' establish such an obligation?

 

          At first glance we might view this hana'a as the actual source of the obligation to compensate.  Several times throughout halakha we notice a chiyuv to pay for benefit received.  Even if the standard mechanisms which establish obligations do not apply, the RECEIPT OF BENEFIT itself establishes a compensatory obligation.  For example, even if the formal laws of "mazik" (one who causes damage) do not pertain, a person must pay for the food his animal consumed.  In certain situations, a person must pay for the benefit he derives from a fence even if he didn't hire the builder of the fence.  In our case the arev, too, must pay for his benefit - by compensating the malveh if the loveh proves indigent.

 

          A statement of the Rambam, however, indicates a different understanding of this mechanism.  In chapter 11 of Hilkhot Mekhira the Rambam describes the formation of entirely new monetary obligations.  If a person in the presence of eidim (witnesses) or through the written medium of a shtar announces, "I owe you a certain amount of money," even though it is quite clear that this statement is not true, a new chov is created and he is obligated to pay.  Basically, a person has the authority to self-impose a non-compensatory obligation.  Furthermore, the Rambam highlights an interesting feature of this process with his ruling that no ma'aseh kinyan (act of acquisition) is necessary in order to establish an obligation.  Merely ANNOUNCING the chov in the presence of eidim is sufficient.  As the foundation for this decision the Rambam cites the example of arev which he views as the paradigmatic case of a new obligation which is created verbally, unaccompanied by any physical act.  Evidently, the Rambam did not view the benefit an arev receives as the true origin of the chov, else he could not have extrapolated from it the general concept of verbally-created new obligations.  Apparently, the role of hana'a is merely to assure us that the arev has complete seriousness of intent (gemirut da'at).  Had he not received such benefit, we might have always questioned his pledge and doubted its sincerity.  The benefit he received serves to convince us that full da'at existed at the time of his declaration.  From this, the Rambam assumes that no physical action is necessary to establish a chov.  Hana'a does not, on its own, form a chov; it merely buttresses the intent which, when verbally expressed, itself creates a chov.  In fact, the Rambam is able to suggest alternative factors which, even in the absence of hana'a, can convince us of the seriousness of his intent.  For example, if the pledge was made in the presence of eidim or conveyed through a shtar it now becomes incontrovertible.  Fundamentally, it is the PERSON himself who is empowered, through his speech, to CREATE a completely new and non-compensatory obligation, with hana'a received (or eidim or shtar) merely providing proof of the sincerity of his pledge.

 

SUMMARY:

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          The gemara attributes the establishment of the obligation of the arev to the benefit he receives.  Does this benefit itself trigger a reciprocal obligation, or does it merely signal the arev's sincerity thereby enabling his verbal pledge to create a halakhically binding obligation?  Ultimately, whether we infer from this case a general capacity to create new obligations through verbal declarations is a function of how we understand the part that hana'a plays.

 

          We might attempt to clarify the role of hana'a in establishing the chov by determining which form of hana'a is actually necessary.  The mishna in Bava Batra (175b) cites a machloket between Ben Nannos and R. Yishmael regarding an arev who intercedes at a latter stage of a loan.  What happens, the mishna writes, if the arev happens by as a malveh is physically abusing a loveh in order to extract payment?  He placates the malveh by offering a guarantee and obtains a reprieve for the loveh.  One might assert that in such a case as well, the arev has received benefit (rescuing his friend, the loveh, from physical harm) and should thereby have accepted upon himself a binding obligation.  Though R. Yishmael adopts this position, Ben Nannos disagrees, claiming that an arev only obligates himself if his actions precipitated the initial granting of the loan.  If, however, he had no role in the original loan but merely plays a part in easing the latter stages of its collection, he does not establish any obligation.

 

          Theoretically, if we assume, like the Rambam, that the received benefit simply engenders good-will and prompts the arev to be wholehearted in his declaration of a debt, we would draw little distinction between hana'a which comes from engineering the loan and hana'a which comes from intervening later on.  Any form of benefit received by the loveh should cause his pledge to be halakhically binding, as R. Yishmael opines.  The limitation imposed by Ben Nannos, on the other hand, might reflect a more operational role for hana'a, i.e. that it ITSELF establishes a reciprocal chov.  Only hana'a stemming from an action which was pivotal in engendering the original chov would then obligate payment of that chov.  If the arev enjoys an indirect benefit from being an architect of the chov, he might be obligated to help compensate that chov.  If, however, the benefit is incidental to the chov, emerging after the loan has already been settled, there is no reason that the hana'a should spawn an obligation to pay that loan.  Some other obligation might be entailed, but not the sum of the loan.

 

          Another question concerns whether an obligation of arevut may be established when the party to whom the guarantee is being pledged did not advance any money.  For example, what would happen if an arev guarantees to a woman payment of her ketuba, which is money owed to her by her husband (or his estate) upon termination of the marriage by divorce or death?  Though the arev does gain the benefit of an improved reputation, the party to whom he is obligating himself has not expended any money.  The gemara (Gittin 50) appears to disqualify this form of arevut, but Rabbeinu Yerucham (quoted in Machaneh Efraim, Hilkhot Arev, siman 1) reinterprets the passage in a manner which permits him to.  If the pleasure merely encourages the arev to accept a chov which is actually created through another mechanism, little attention should be paid to whether the beneficiary of this chov has lost funds.  If, however, the hana'a is what triggers the formation of a reciprocal and compensatory payment, such an obligation would only have meaning if there is what to compensate.  Hence, if the potential beneficiary lost no money, all the hana'a in the world will not establish a chov.

 

SUMMARY:

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          Both the type of hana'a required and the possible necessity of some form of loss might help illustrate the role hana'a plays in establishing the chov of an arev.  If the hana'a merely excites the arev to pledge a chov, little attention would be paid to the exact form the hana'a assumes, nor would we be concerned with whether there was an expenditure on the part of the potential beneficiary.  If, however, hana'a is essential in manufacturing the chov, both these factors are crucial.

 

 

METHODOLOGICAL POINTS:

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1.  When the gemara attributes a particular halakha (the chov of an arev) to a factor (hana'a ), does it view that factor as the actual creator of that halakha, or as a catalyst which triggers some other mechanism?  When the gemara points to hana'a as the source of an arev's chov, does it recognize hana'a as the manufacturer of the chov, or as that which triggers sincerity and allows the person to fashion a chov?

 

2.  Sometimes larger principles which are extrapolated from a particular rule will highlight the essence of the source halakha.  By deriving verbally created obligations from the concept of arev, the Rambam marginalized the role that hana'a plays in creating the chov of an arev.

 

 

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