Translation:Shulchan Aruch/Choshen Mishpat/42

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Paragraph 1- We do not write a loan document on something that is forgeable. If they wrote the document on it, the document is invalid, even with respect to an immediate collection. This is only true with respect to a loan document. With respect to a kinyan document, however, it would be valid. Any document that is not made as the Rabbis instituted is invalid, even if there is no rationale to invalidate it. Therefore, if one were to make a tied-up document today it would be invalid. There are those that disagree and we rule like those opinions. See later 44:1.

Paragraph 2- A document can be written in any language and any script so long as the scribe is careful that there is no modification in that text.

Paragraph 3- The appropriate way to draft a document is to pay attention to the vov’s and zayin’s so that they are not stuffed between words lest a party forge the document and add a vav or zayin. The letters should not be far apart from one another lest a party erase one letter like a hey or ches and leave the leg in place of a vov. One must be careful with anything similar in any other language and any other script. Therefore, a scribe must be careful when writing a document to have the letters looks similar to each other and the writing should be straight and equal in all aspects so that the letters are not too far apart from each other. The scribe should not press the writing together too much nor should he press in one area and give space in another area. Therefore, witnesses are not permitted to sign until they investigate all the words of the document well and when the document is produced in front of the judge, the judge must investigate all the words and compare each letter. If the judges sees any aberration, the party may not collect with it until the judge investigates the matter well. Any issue which can be explained by an erasure, is attributed to an erasure. If the judge needs to strike the document-holder to get him to confess, he may to do so in order to have the true ruling emerge. There are those that say that this only applies where we are coming to take money from inheritors or buyers in which case we rule that we may set forth claims on behalf of them. If, however, the court is taking money from a borrower, seller or gift-giver directly and the defendant does not claim that there is anything wrong with the document, we would not make the claim for him.

Paragraph 4- The scribe must be careful not to write any number from “shalosh” to “eser” at the end of the line, lest a party turn ten into twenty or three into 30. If the scribe wrote “shlosha” or “asara” that is fine because there is no concern of forgery. If the number ends up on the last line, the scribe must repeat the matter a few times until it occurs in the middle of line. Similarly, the scribe must be careful not to write it number form, such as “beis” or “daled” so that party does not turn it into a “chaf” or “reish.” If the scribe does not follow this, the document is forgeable and invalid. If, however, he wrote math equations or acronyms where forgery is impossible, the document is valid.

Paragraph 5- If the top of the document says one thing and the bottom says something else and it is possible to maintain both points, we would maintain them. If, however, they contradict each other, such as where the top says a maneh and the bottom says 200 or vice-versa, we follow the bottom so long as it is not the last line in a case where the document does not conclude with “everything is affirmed and verified.” With respect to taking away from the document-owner, however, we would make a deduction from the last line. If the sum at the bottom was deleted, the whole document is invalid because it is possible that the bottom said only one dinar. There are those that say if the top was counting out the amounts and the bottom contained the sum which was less or more than the top, we would say they certainly erred in the calculation and we would follow the listed out numbers. This view appears correct. When is it true that we follow the bottom? Where one amount is not dependent on the other. If, however, the document says “100, which is 200” or “200, which is 100” the document-owner would only be able to collect 100- the lower of the two- because the document-owner is in the inferior position.

Paragraph 6- If a letter from the bottom was erased but it was possible to deduce what was missing based on what was on top, we would make the deduction from the top. For example, if the top said a party owed Chanani and the bottom said Chanan the bottom would learn from the top and the party would pay Chanani. If, however, there were two letters missing, we would not make the deduction. For example, if the top said Chanani and the bottom said Chen- even if the top word had six letters and only two were missing from the bottom – we would not make the deduction. Given that we do not make the deduction and we know the document was erased, the document is now disqualified and one cannot collect with it. With respect to one letter, however, we would make the deduction, even if the top word only had two letters and we are using it to deduce half a word. If something was missing but there was no erasure, and the top said Chanani and the bottom said Chen, that is certainly a retraction because a scribe would not err on two letters, and the party must pay Chen.

Paragraph 7- If the top said the measurement of safel (1.5 seah) and the bottom said the measurement of kafel (1.5 kav), we would follow the bottom because a kafel is less than a safel. If the top said kafel and the bottom said safel, we are concerned that a fly caused the leg of the kuf to turn into a samach and the party can only collect a kafel. The same applies to anything similar because the document-owner is in the inferior position.

Paragraph 8- In all the above cases where we say the document-owner is in the inferior position, if the document-owner were to take possession of his adversary’s moveable items, we would not take it away from him. All the more so would we say that when it comes to possession of a receipt, the document-owner has the superior position because he is already the possessor, and not like those that disagree and say that even by a receipt we use the principle of the document-holder being in the inferior position.

Paragraph 9- We do not use the principle of the document-owner being in the inferior position except in the aforementioned cases where the document has not been completely voided. If, however, the issue is one that voids the document, the principle would not apply. For example, if the document says so and so owes so and so a maneh by Pesach, the borrower must pay him by the first Pesach and he cannot say I will pay him by Pesach in years from now. The same applies to anything similar. There are those that say this is only for matters that can be attributed to a mistake. With respect to a matter that the giver erred on, however, such as where used a language for a gift that is of no effect, the document is certainly void.

Paragraph 10- There are many commentators that write that today where we have the custom to write “this document is not an asmachta and not an outline,” we would say the document-owner is in the superior position for any doubt arising out of the language of the document. If language is included in a document to bolster the document-owner’s status and is understood by the average listener this way, we would judge accordingly, even though it is bolstering the document-owner’s status.

Paragraph 11- If a document says so and so owes so and so such and such amount of such and such currency and the amount was erased and unrecognizable, the lender may only collect two of that currency.

Paragraph 12- If a document says “selaim,” and the lender says it was five while the borrower claims it was two, the borrower must pay the two and take a heses oath on the rest. If the lender were to grab the difference, we would take it back from him.

Paragraph 13- If a document says so and so borrowed from so and so silver, the borrower would need to give a minimal piece of silver of the lightest weight. If the document says silver currency and silver perutos were used in that locale, the borrower must give one perutah. If silver perutos are not used in that locale, the borrower would give the smallest amount of silver currency that is used there. If the document says dinarim of silver, the borrower would give silver that is worth two dinar of gold. If the document says gold in dinar, the borrower would give gold worth two gold dinar. If the document says silver in dinar, the borrower would give pieces of silver worth two silver dinar. If the document says gold, the borrower would give a piece of gold that is the lowest weight of gold. If the document says gold currency, the borrower would give the smallest amount of gold currency that is used. If the document says gold dinarim or dinar of gold, the borrower would give two gold dinar. If the document says gold in dinarim, the borrower would give gold that is worth two dinars of silver. In today’s age there is no distinction between saying “dinarin” or “dinari.”

Paragraph 14- If one produces a document against another with a sum of 110 dinar or selaim and the currency is undefined and it was written in Bavel, the lender would collect Babylonian currency. If it was written in Israel, the lender would collect Israeli currency. If no location is written in the document and the lender produced the document in Bavel, he would collect Babylonian currency. If the lender produced the document in Israel, he would collect Israeli currency. If the lender attempts to collect the currency where he produced the document and the borrower claims he owes him silver that is worth less than this currency, the lender would take an oath and collect. If, however, the borrower proves that they originally lived in a place with a less valuable currency, he only has to give the lesser currency. If the document says 100 silver but does not say if it is selaim or pundyon, the lender would collect whatever the borrower desires.

Paragraph 15- If the document simply says an amount, we would follow the custom that they typically use in that locale. For example, there was a document that said 600 and zuzim and it was unclear whether it was 600 istira and a zuz or 600 zuz and a zuz, we rule that the borrower gives 600 istirii, which is less. We would not, however, entertain that it was 600 perutos because people don’t include a sum total of perutos in a document. We follow any language that is often in used documents, even if it was not an institution of the Rabbis but a language that the common-folk use in that locale. Even if the language was not written, we would judge the case as if it was. The same applies for any institution by the community or any city custom. If one raises an orphan in his home and writes “my son” in a document or the orphan writes about the individual that raised him “my father” or “my mother,” it is not considered forged and it is a valid document because it is appropriate to write this considering that he raised him.