Translation:Shulchan Aruch/Choshen Mishpat/49
Paragraph 1- If the borrower or lender have two names, there is no need to write anything other than the primary name. If they only wrote the secondary name, the document is valid. They do not need to write a the suffix of a party’s name or the fact that he is a Kohen or Levi unless there were two individuals in the city with the same name.
Paragraph 2- The witnesses must be aware that the name of the borrower is in fact so and so the son of so and so. They must know the name of the seller in a sale document. In the case of a loan document without a kinyan, they must also know the name of the lender. If the witnesses do not recognize any of the foregoing, even a woman or relative would be believed to say that this is the individual's name. In a case where they relied on a woman or relative and it turns out the witnesses erred, we would believe this error occurred where the witness is a scholar because it is not the practice of scholars to investigate the specifics. There are those that say this is only true with respect to a woman because scholars are not familiar with women considering that it is not their practice to gaze at women, as will be explained in Even Haezer Siman 110. With respect to other matters, however, there is no distinction between a scholar and anyone else. The author of the Shulchan Aruch wrote in his sefer Beis Yosef that this view is in fact the primary view. Thus, it is a bewilderment that he takes the opposite approach here. With respect to other individuals who do have the practice to investigate the specifics, we would not accept them because they certainly were cautious originally and now they are retracting and lying. The same applies with other errors by the scribe where it is obvious that there was an error, and the document would be valid. We say that that the scribe erred just as we say with respect to the lack of a lien in a document as was explained above in the beginning of Siman 39.
Paragraph 3- We can write the name of anyone whose name was established in a city for 30 days. We are not concerned that he may have changed his name for fraudulent purposes.
Paragraph 4- If an individual was called by a name and responded to it, we assume that is his name with respect to anything that negatively impacts him. For example, if he referred to himself as Reuven, and he wrote a document against himself saying Reuven borrowed from Shimon and now claims that his name is not Reuven, if they called him Reuven and he responded, he is obligated to pay, notwithstanding the fact that his name has not been established as Reuven for 30 days in the city.
Paragraph 5- If a document is produced in front of us and the borrower claims that he does not owe anything and perhaps a fraudster used my name as his name and confessed to this loan or if the borrower says I do not owe this person money, but rather another person, and this lender is a fraudster who used my creditor’s name as his own, since it is not established that there are two people in the city with identical names, we do not pay attention to the words of the borrower.
Paragraph 6- If someone had a nickname established in the city and they wrote a document using that nickname and it later became known that he had another nickname, in a case where they erred in the name of the borrower or lender and wrote Reuven instead of Shimon or vice-versa or in a case where they erred with respect to the amount of money, they should write another document. The same applies to any other error. We do not say the witnesses have already performed their mission. There are those that say that even in a case where the witnesses wrote a valid document, the concept of the witnesses already completing their mission would not be applicable so long as the kinyan has not yet been documented and the document has not been given over to its owner. There are those that say that the entire concept of the witnesses completing their mission does not apply to documents. There are those that say that in a case where it is obvious that there is a scribe’s error, the document is valid even if they did not write another one.
Paragraph 7- If two individuals in the city both had the name Yosef ben Shimon, neither of them can produce a document against the other if the document contains a kinyan because the defendant can say that this document that you are producing against me is mine and I returned it to you when you paid me back for the money you owed me. The Mecahber’s words contradict each other because there is no distinction between a document with a kinyan and one without if the reasoning for the foregoing is that one can say this document is mine and I returned it to you. There are those, however, that explain the reasoning that one cannot produce a document against the other to be because we write documents for a borrower even if not in the presence of the lender so we are concerned that the party that produced it is the borrower. This concern would only apply to a document that contains a kinyan as we said above at the end of Siman 39. That is why the Mechaber wrote that this only applies for a document that contains a kinyan, Thus, his words are contradictory. A third party cannot produce a document on either of them because each one can say it was not written against me but against the other, unless the document’s witnesses themselves come and say that this is the document we testified on and this is the party that we that we testified was involved in the loan. If other witnesses testify that, the loan has the status of a verbal loan. If one of the Yosef ben Shimons was a minor on the date of the document, we would collect from the other. What is the way to rectify this issue? They should write the names of their grandfathers. If their grandfathers also had the same name, they should write some other sign. There are those that say that if they are from different cities then they can produce a document against each other because they must write the name of the borrower’s city or the lender’s city in the document. There are those that say that we do not write the name of the city in the document and this is in fact the custom. However, if they are from two different cities and they wrote the name of the city of one of them, this is certainly no worse than a sign and there is no room for error. This is what appears correct to me. If there are two Yosef ben Shimons in one city and one of their fathers had died and in the document it says yb’s, shli’t or nr’v like we write for someone who is alive and the witnesses wrote “Yosef ben Shimon shli’t told us” that would qualify as a sign. If, however, the document says, “I, Yosef ben Shimon shli’t” or something similar, “borrowed from so and so…” and the witnesses signed below, that would not qualify as a sign because perhaps the second Yosef ben Shimon wrote this with trickery and the witnesses did not pick up on it because they are not signing on everything in the document. If, however, they were to produce a document against a third party, that third party would not be able to say I did not owe you but instead owed the other person who has the same name as you, because we assume that the person who produced the document is the rightful owner of the document. If, however, Yosef ben Shimon did not produce the document, he would not be able to take away money from the borrower, even if the borrower confesses that he owes one of them, unless the two Yosef ben Shimons were to write a power-of-attorney to each other. If the borrower is in possession of a receipt from one of them, neither of them can make a claim against the borrower because the borrower can tell each one that you wrote this receipt for me. If, however, they were to write a power-of-attorney to each other, one of them would be able to collect because the borrower admits that he only paid one back. If the borrower claims he paid back both of them but only demanded one receipt because it would suffice to show that receipt to whichever one comes to him to claim the loan, the claim would be valid and the power-of-attorney would not be effective.
Paragraph 8- When is this true? Where they do not put third generations in either documents or receipts. If, however, they put third generations in documents but not in receipts, the receipt-holder has the burden of proof.
Paragraph 9- If one lender lent to both Yosef ben Shimons in two different documents and the documents contained three generations so each one’s document was recognizable and the lender [version of the Sma and Shach] had a verified receipt stating that the document of Yosef ben Shimon was paid back but the receipt did not have a third generation and both documents were discovered among the lenders’ torn up documents, the documents’ strength has been weakened and both documents are assumed to have been repaid.
Paragraph 10- If one Yosef ben Shimon borrowed from a third party and a field that was purchased by one Yosef ben Shimon from the other was discovered or the two Yosef ben Shimons were partners in a field, the lender cannot collect from the field by saying that had he lent the current owner then he certainly can collect and had he lent the other, considering that the other did not have unencumbered land, the current owner has purchased his lien. Similarly, where the two are partners, the lender cannot claim half of the land on the basis of the fact that he is owed that amount in either instance because a debtor’s properties are only mortgaged as a co-signer to the loan and a co-signer is only indebted to the lender in an instance where the lender can claim from the borrower himself. Since in this case the lender cannot claim from the borrower himself, he cannot collect from his properties either. In effect, in a case where one is a co-signer to two Yosef Ben Shimons- whether there are two lenders or one lender- the lender cannot claim from the co-signer just as he cannot claim from the borrowers.