Translation:Shulchan Aruch/Choshen Mishpat/41
Paragraph 1- If a lender’s loan document is deteriorating and will ultimately be erased, he may arrange for witnesses and go to a court who will verify the document. There are those that say that even if the document was completely erased the witnesses may testify since they know what is written in it. Witnesses testifying on a document may testify even if not in the presence of the parties. The witnesses on the document themselves, however, may not write another document for the lender. They may, however, come to court and the court will verify the document. How do they verify this document? They draft another document that says, “we, the court of so and so, so and so and so and so, had produced in front of us by so and so a document that was erased and had such and such date with so and so and so and so as witnesses.” If the court wrote that they processed the witnesses’ testimony and the testimony conformed, the lender can collect with this document that they wrote for him and he would not need any other verification. If the court did not write this language, the lender would need to bring an additional proof on the original witnesses until their testimony is verified. If the witnesses are not verified, it is as if the lender produced an unverified document. There are those that say that it must state in the verification that they tore up the original document because otherwise we are concerned that the lender will go to another court who will process another verification for him and then he can collect and recollect. With respect to a gift document that was erased, however, we would write another document even though the first has not been torn up. We would use the original date and not the date the court is writing the new document on. In a case where the gift was secured or in a case of a transaction document, however, the court must tear up the original document or write in the second document that this document is not intended to allow for collection from properties sold to a third party or to collect from unsold properties, but simply to enable this particular field to remain in the hand of the gift-recipient or the buyer and prevent the gift-giver or seller from reclaiming it.
Paragraph 2- If one had his loan document erased, he may arrange for witnesses who will come to court and verify the document. This is only where there are witnesses that it was erased accidentally. If, however, the lender deliberately erased the document or he left the document in an unsafe place where it was erased, they would not verify the document for him because the fact that he left it in an unsafe place indicates that it was certainly paid back.
Paragraph 3- If one had a document and misplaced it and comes to court to have the document replaced, we would not write it, even if he brought the witnesses from the original document who testify that they wrote the document and gave it to him. Therefore, a court should not duplicate any document unless they see a particular need for it such as the case of an erased document. If the court wrote the outline of a document for someone and that person comes to court with it, the court would not collect based on that document until he produces the substance of the document unless there was a written reason as to why they made another document, such as because the previous document was erased or something similar and the witnesses knew the document was lost. If, however, the witnesses did not know it was lost, they would not write another document for him. Even if there are witnesses that a document was misplaced, we would not write another document because we are concerned the lender will find it unless there are witnesses testifying that the document was burnt. This is only true with regards to loan documents. With respect to unsecured transactional documents, however, we would write another document if the original was lost. We do not, however, duplicate a document for no purpose. In the case of a will that contains gifts to many, where one person comes to court and asks that they document his particular gift, we would write it for him because such a document would not work to collect money with because it is not a formal document and the orphans can claim they paid back. We would, however, write a new document if the original document was in the hands of a third party who misplaced it because there is no concern the lender may find it considering it was not in his possession. If the borrower was overseas, and the lender is concerned taking the document because he is afraid it may be lose it on the road, he may come to court who will write another document and the lender will leave the original document in the court in his city. The court in the borrower’s city would inform the court in the lender’s city once the loan has been paid back and the court would tear up the original document in their possession. If the duplicate document was misplaced while he was traveling to the borrower and witnesses are aware of the loss, they would go in front of court and testify that it was misplaced and they would return the document in their possession. Any document that is duplicated is written letter for letter from the original. They would write on it that it is a duplicate. A court is not required for the duplication. Even two witnesses are able to duplicate (and even if they are related to one another).
Paragraph 4- If one had a documented debt owed by his counterparty and he lost the document but the witnesses are accessible, and the borrower claims he paid back, the borrower would be believed with a heses oath even if a kinyan was made. The borrower is believed with a heses oath to say he paid back even if the payment deadline had not passed because the lender no longer possesses the document and we are concerned that the borrower paid back, which is why the document was ripped up or burnt. Even if the a third party produced the document and the borrower claims he had dropped it after paying back to loan, he would be believed with a heses oath and would be exempt from paying, even if it the deadline for payment had not yet passed because once the lender no longer has the document we do not apply the principle that a person does not pay back before the deadline. If, however, the lender gave the document as a deposit to a third party, and the guardian is the one that produces the document, the borrower is not believed to say he paid back and the document fell from him and the third party found it, even if the guardianship was not done in front of witnesses. If one has documents in a city that was conquered, we can assume they were lost and we would write another document. Even if the borrower were to strongly protest we would not concern ourselves.