Translation:Shulchan Aruch/Choshen Mishpat/46

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Paragraph 1- If one produces a loan document against his counterparty, so long as the document has not been verified the borrower can claim the document is a forgery and he never instructed anyone to write it. Even if the borrower confesses and says it is true that he instructed it to be written but he paid back, it was given on trust or he wrote it with the intention to borrow but he never borrowed or anything similar, he is believed because if he wanted he could have said the loan never occurred and the document is only verified on his say-so. He must swear a heses oath and will be exempt. If the lender later has the document verified, the document will be like any other document. See later at the beginning of Siman 82.

Paragraph 2- There are those that say that this that we believe a borrower with a migu is only where the document does not contain a believability clause for the lender. If, however, the document does contain a believability clause, there would be no migu. There are those that say that even if the document contains a believability clause the borrower is believed with a migu that he could have claimed the document was forged. This opinion is logical.

Paragraph 3- What is the verification process? The witnesses of the document come and testify in front of three judges- who may even be laymen- that this is their signature and the judges will write on the bottom, “we were three who sat as one and so and so and so and so came and testified in front of us regarding their signatures and it became clear to us that this is their signatures. We uphold and affirm as is appropriate,” and they sign on bottom.

Paragraph 4- We cannot verify a document other than in front of three individuals because it is considered judgement. Therefore, we do not verify documents at night. If two people verified a document, there is no verification. There are those that write that now that we have the custom that a designated Rabbi verifies documents solo, this kind of custom supersedes the strict law. This is in fact the widespread custom in these countries. The rationale seems to me to be that we hold that a solo expert has the status of three laymen with respect to the rabbinical verification of documents and is therefore considered a court as was explained earlier in Siman 25. Although we do not have expert individuals today, with respect to verification of documents, however, we can rely on this. This is what seems to me to be the reasoning behind the custom.

Paragraph 5- We may verify a document even if not in the presence of the parties. Even if the party is standing and yelling that the document is forged and should not be verified, we would not listen to him.

Paragraph 6- Although the document is verified, the court must recognize the signature of the two witnesses or two of the judges. If they do not, the document does not have the status of being verified. There is, however, a purpose to the verification in that because there are two witnesses and three judges that have signed on it, it is much easier to find someone who recognizes the signatures.

Paragraph 7- A document can be verified in one of five ways: (i) the judges recognize the witness’ handwriting, (ii) the witnesses sign in front of the judges, (iii) the witnesses that signed on the document come and each one says, “this is my handwriting and I am a witness on this matter,” (iv) witnesses come and testify that this the handwriting of these witnesses and they may testify this testimony in writing and do not need testify verbally, or (v) their handwriting is produced from other documents and the court will compare this writing to the writing in other documents and determine that those witness’ handwriting is the same as these witnesses. We do not verify a document from other documents except from two documents of two fields where the owners consumed a public consumption for three years without any fear or trepidation from any claim in the same manner that all field-owners consume their fields or from two kesubos, so long as the documents are produced from a third party and not from this individual who is looking to verify the document because he may have forged all of them. We would not verify the documents if they were produced from the party’s hand, even if both documents were verified. There are those that disagree. Similarly, we can verify a document from a single document that was protested against- there are those that say that even if no one protested, but the document was simply verified as we have later in seif 37- and was affirmed in court just as we verify from documents of two fields or two kesubos. There are those that say we can verify a document from a book that the witness wrote but not from a letter that he wrote. There are those that say that we cannot even verify from a book unless he signed it at the end, in which case we can verify from the author’s signature.

Paragraph 8- If the court wrote, “we sat as three and the document was verified in front of us," the document is verified even if they did not write the form of verification they used. The custom is to write the form of verification used.

Paragraph 9- When a document is verified with others testifying that this is the witness’ handwriting, if one witness testifies on one signature and a second testifies on the other, the document is not verified because we require two witnesses on each one of the signatures. If there is a third witness among them who will testify on the signature of both witnesses, the document is verified.

Paragraph 10- If one signed on a document and comes to court to testify on his own handwriting and he recognizes his signature with certainty but does not remember the testimony at all and he cannot recall that this party ever borrowed from this one, he is prohibited from testifying on this handwriting that is in this court because a person does not testify that this is his handwriting but that this party owed that party the actual money in the document. The handwriting is merely a form of reminding him of the incident, but if he does not remember he cannot testify. Thus, if a document was produced in court and witnesses come and say this is our handwriting but we never knew of such testimony and we have no recollection that this party borrowed from or sold to the other, the document would not be verified and the witnesses have a status of the deaf until they recall their testimony. Any judge who does not judge accordingly does not know between his right and left when it comes to monetary law. If, however, the witness’ handwriting was produced from another place or there were other witnesses that testified that this was their handwriting, we would verify the document and we would not pay attention to the words of the witnesses that say we don’t recall the testimony because the document is being verified without their words. This is the reason we are able to verify all documents and we do not require to bring the witnesses and ask them if they remember the testimony or not because even if they were to come and say we don’t remember the incident, we would not listen to them since we can verify the document without their words. These were the words of the Rambam. There are those that disagree and say that even if they do not recall that the party borrowed or that they ever signed on this document and we do not have their handwriting from any other source, since they are testifying that this is their handwriting, we would verify the document based on their words. Under this approach, when the witnesses themselves are coming to testify that this is their handwriting, if they forgot the loan and do not remember signing this document at all, we would require two witnesses on each signature. Therefore, we would need each witnesses to testify on his signature and on his co-witness’ signature or a third party should join them and testify on both their handwriting in order to have two witnesses on each signature. We do not require a witness to remember his testimony except in a case of a solo witness or with two witnesses when it comes to verifying the document. With respect to two witnesses that sign on the document, however, if they did not remember the incident at all and the document was not written as was instituted, there would still be a testimony of witnesses and if the document was verified we would follow whatever is written in it. Although this document does not have the status of a complete document, it is considered a document with respect to not having the testimony considered as written testimony as was explained above in 28:12. There are those that disagree as was explained above in 39:3.

Paragraph 11- If one of the witnesses says this is my handwriting and he and another testified on the second witness’ handwriting, the document would not be verified because ¾ of the money is being collected via the testimony of one witness.

Paragraph 12- Similarly, if the brother or father of the first witness testifies with another on the handwriting of the second witness, the document would not be verified because ¾ of the money is being collected via the testimony of relatives.

Paragraph 13- If two people signed on the document and one of them died, we require two individuals from the street to testify on the deceased’s signature. The surviving witness cannot join with another to testify on the signature of the deceased because that would result in ¾ of the money being collected via him. If only one other witness is found with the surviving witness, the surviving witness may write his signature even on pottery in front of witnesses and set it forth in court until his signature is established in the court- all the more so would it be effective if there are witnesses that can verify the surviving witness’ signature- so that the witness will not be need to testify on his signature. He can then subsequently testify with the other witness regarding the deceased’s signature.

Paragraph 14- If the court does not recognize the witness’ signature or the signature of the judges who signed on the verification and one of the witnesses of the document testified on his handwriting and two witnesses testify on the signature of one of the judges or the judge himself and another witness with him testified on his handwriting, it would be of no effect because that which this person is testifying on is not the same as to what the other witness is testifying on. This witness is testifying on the maneh in the document, whereas the judge is testifying on the witness’ signature. Similarly, if the handwriting of the scribe and one of the witnesses is verified, there would be no verification.

Paragraph 15- If two of the verification judges testify on their own handwriting, the document is verified.

Paragraph 16- If one witness from the market testifies on the witnesses in the document and one judge testifies on his signature, they would combine because the witness and judge are testifying on the same matter. The same rule applies where the judge does not testify on his signature but two individuals from the market testify on the judge because all of the testimonies are one and the same.

Paragraph 17- The witnesses on verification may be related to the witnesses on the document. Moreover, if a father that signed died while his child was a minor, the child may join with another witness and testify on his father’s signature after he becomes an adult. Similarly, one may testify on his brother’s or his teacher’s handwriting that he saw while he was a child. There are those that say he may only testify for the aforementioned examples where he was frequently with them. With respect to the handwriting of another, however, one is not believed to testify while he is an adult about a signature that he recognizes from his youth.

Paragraph 18- The witnesses of verification must not be related to the judges of verification. There are those that permit it. The verification witnesses may be related to the witnesses that testify on the signatures of the judges who verified the document. The verification witnesses may not be related to one another.

Paragraph 19- Verification witnesses that are related to the lender or borrower are disqualified. There are those who permit it. Verification judges that are related to the borrower or lender are disqualified.

Paragraph 20- Judges who sign on a document verification may sign even without reading the document. They do not have to read what is in the body of the document, but they still need to see who the borrower and lender are so that the borrower and lender are not related to the judges or the witnesses testifying in front of them. There are those that say that they do not need to read it at all so long as they write who the verification witnesses are so that if they were disqualified to the lender or borrower they will later be able to realize.

Paragraph 21- Judges who judge on conditions or other areas with respect to the actual loan must not be related to the witnesses on the document.

Paragraph 22- The verification judges must not be related to the judges that judge the actual loan. There are those that allow them to be related.

Paragraph 23- Verification witnesses may be related to the judges on the loan.

Paragraph 24-If three individuals sat down to verify a document and two of them recognize the witness’ signatures while one does not recognize the signatures, prior to the judges signing the two who recognize may testify in front of the one who does not recognize, and he can then sign the verification. Once the two that recognized have signed they cannot testify in front of the third judge and have him sign. They are permitted to write the verification of the document before the document is verified because the writing is not the primary aspect of the verification; the signing is. There are those that disagree.

Paragraph 25- If witnesses came and testified that at the time of the verification the judges were not in one siting but that each judge accepted the testimony by himself, the verification is invalid. The judges themselves are not believed to say that they were not together and that they did the verification improperly. There are those who validate such a verification.

Paragraph 26- If three individuals sat to verify the document and two witnesses came and protested that one of the judges is a thief or something similar, and two other witnesses came and testified that the judge repented, if the witnesses of repentance testified before the other judges had signed the verification, the judge in question may sign with him because they are three valid judges. If the witnesses of repentance testified after the other judges had signed, he cannot sign with them because it is as if he was not there at the time the other two had signed.

Paragraph 27- When is this true? Where the witnesses protested due to the judge’s sin. If, however, they protested regarding a flaw in his lineage, such as where they said his mother was never freed and he is a slave or she did not convert and he is a gentile, and we discovered after the other two judges had signed that there was in fact no flaw in his lineage and that he is valid, he may sign with the other judges because this is merely a revelation to what which was true earlier.

Paragraph 28- If they wrote the verification and it turns out one of the judges on the verification is invalid, they cut up the verification but the document itself remains in its valid state.

Paragraph 29- If three individuals sat to verify a document and one of them died, they must write, “we were three sitting as one and one is no longer with us” so that an observer does not say a court of two verified the document. This is true even if the verification says “in court” because the observer will say perhaps they believed two qualifies as a court. If there is some implication that they were three, the language is not required. There are those that say that if they did not write “and one is no longer with us” the document is still valid. Nevertheless, everyone agrees that if the verification states, “a court with three sitting,” nothing else is required, the two remaining may sign and it suffices. If all three signed they do not need to write, “three were sitting.” Even if the verification merely states “this document was verified property” that is enough.

Paragraph 30- Even in a case where one of the judges did not die we have the custom to write “and one is not with us” in order to make it easier on the judges so that have only two have to sign. If the validation says “we were three…” and three judges signed and one of them turned out be a relative or otherwise disqualified, there are those that say the validation is valid because we presume that three others sat down and only two of them signed and the third individual who was related or disqualified signed later as was explained above in 45:12 with respect to other documents. There are those that say the validation is invalid. A verification that says “we are witnesses” is valid because since we see that three signed we can observe that it was a court.

Paragraph 31- The verification by the court must be adjacent to the handwriting of the witnesses, on the side of the document or on the back opposite the writing. Therefore, if the paper had little room on bottom they can write the verification on the side or on the back. If there was a one line and two airspace space between the verification and the document, only the verification itself would be disqualified because perhaps the party will cut off the verified document and forge what he wants and forge two witnesses on that line resulting in a forged document with verification.

Paragraph 32- If they had the verification one, two or more lines removed from the document and they filled up the entire space with scrapes of ink, the document is valid because it cannot be forged. We are not concerned that the court verified the scrapes; rather we assume they verified the substance of the document. There are those that say that we do have this concern.

Paragraph 33- A document that has the document and witnesses on erasure and the verification below on the paper, we do not verify the document using the verification judges. Rather, we verify with the witnesses that are above because perhaps the verification was far removed from the document, the space was filled with scrapes of ink, the party cut off the substance of the document and wrote the document and witnesses on the erasure. There are those that permit verifying it with the verification judges.

Paragraph 34- If a witness signed a document before becoming a thief and then later became a thief, he cannot testify on his own handwriting. If, however, there are others who testify that they recognize the witness’ signature and they saw his signature on this document prior to his becoming a thief, the signature is valid. If, however, they did not see the signature until after the witness became a thief, the document would not be valid because we are concerned that the witness forged it now and signed. If there are no witnesses that recognize the thief’s signature, he can write his signature and we will verify based on that as was explained above in seif 13. The same is true if the witness became an apostate after signature. He is treated just as if he became a thief.

Paragraph 35- If a witness signed on a document before becoming a party’s son-in-law and then later became his son-in-law, the witness cannot testify on his own handwriting. Others, however, may testify that they recognize his signature, even if they did not see it until after he became the party’s son-in-law. There are those that say that this is only where the document was produced by a third party. If, however, the document was produced by the witnesses, they cannot testify on their signature.

Paragraph 36- If a witness signed when he was healthy and now has become mute, he cannot testify on his handwriting but others may testify on it.

Paragraph 37- If two people signed on a document and died and their handwriting has not been produced from another source and two individuals come and say that this is the witnesses’ handwriting but they were minors or otherwise disqualified, they would be believed and we tear up the document unless a party argues that he should be given a set time to verify the document. If there were witnesses that this was the deceased’s handwriting or their handwriting was produced from another document that was called into question and later affirmed in court, we would not tear up the document. There are those that say that we do not require the document have been called into question because it suffices that it was affirmed in court, even if the document was not called into question. This is all where the witnesses have already died. If, however, the witnesses were alive and two other witnesses come to disqualify them and say that the witnesses were disqualified, even the document itself would be disqualified notwithstanding the fact that their signature has been produced from another source. There are those that disagree and say the document is valid. This that the latter witnesses are not believed where the handwriting of the document witnesses is produced from another source does not mean that the document is valid to collect with. Rather, if a party were to grab movable items on the basis of it, we would not take it away from him. If the witness’ handwriting was not produced from another source, and the witnesses said this is our handwriting but within kidei dibur they said we were forced by threat of life, we were minors, we were disqualified due to familial relationship and we are no longer related, he nullified the document in front of us or the document had a condition that we did not see fulfilled, the witnesses are believed. Even if one witness says there was no condition and the other says there was a condition and it was not fulfilled, the second witness is believed and only one witness remains. If the document says, “we the witnesses testify that there is nothing omitted from the document,” they cannot say there was a condition because witnesses cannot re-testify. If they say, however, that this that they said there was no omission was not meant to nullify any condition but just that nothing was omitted from actual sale, they would be believed. Similarly, they may explain their words in the document in any manner that does not contradict their words. If, however, the witnesses said they were forced via monetary threat, the document was given on trust or they were disqualified due to sin, they would not be believed even if they’re claiming they subsequently repented. Although they are not believed to void the document, they are believed with respect to themselves and they would be obligated to pay the borrower the loss they caused him by signing. If they said that at the time they signed that they were unaware that the document was given on trust and it later became clear to them that it was, they would be believed. If their handwriting was produced from another source or there are witnesses that this is their handwriting, they would not be believed regarding anything they say to void the document except if they said the party nullified the document in front of us.

Paragraph 38- Witnesses that signed on a document and said that the borrower was a minor at that time, are not believed. There are those that say that this that witnesses that signed on a document are considered as if their testimony was investigated and they cannot retract is only with respect to two witnesses. If only one witness signed, however, he may retract.