Translation:Shulchan Aruch/Choshen Mishpat/61

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Paragraph 1- If a congregation instituted that no document will be of any effect without the handwriting of the city scribe, a waiver where Reuven waives his rights to Shimon and signs on it would not be included in the regulation because this was certainly only instituted for a document that is signed with witnesses.

Paragraph 2- If witnesses have signed on the outline document that is in the scribe’s possession and the document has not been copied, the outline does not have the legal status of a document unless it is the city custom that such an outline is considered a document because any signature that the witnesses did not sign in order to give it to the parties but merely as a memorial is not considered a document. Similarly, if a document should not have been written and one could say the witnesses erred, we would not judge based on that document because it is considered written testimony as was explained above in 28:11-12. There are those that disagree, however, and hold that a form that was written in order to produce a document has the status of a document, even if the document was ultimately not written.

Paragraph 3- If was a woman was obligated to swear due to the Geonic institution of an oath on a borrower to determine if the borrower has moveable items with which to collect and she refuses to swear, we would put a nidui on her until she complies with the ruling, just as we would a man because a woman has the same rules as a man with respect to all punishments in the Torah.

Paragraph 4- If a document states that anyone who produces the document may collect without a power-of-attorney and the city custom is not to collect without a power-of-attorney, the condition would be valid and one may collect even without a power of attorney, even if the document says that anyone who produces it can collect regardless of whether he is a Jew or gentile. This is only true where the party producing it was alive at the time of the loan. If, however, the party was born after the loan, he would not be able to collect because one cannot obligate himself to a person not yet in existence.

Paragraph 5-Any matter which a city has the custom to write, whether it’s a believability clause or that the document was written in the market or any other elements of a document that the scribes are accustomed to use is assumed to be included where one makes a kinyan sudar to have a document written. They do not have to specify all the specific elements that the document will have. This will be explained further in Siman 71. If a person accepted to write a document with all the languages of merit but the scribe does not know how to properly strengthen the document, so long as the document states, “I accept upon myself all the responsibility of this document like all documents that are used among the Jews, without any asmachta or outline of a document,” that would satisfy the condition because the condition is only assumed to have been made on the start of the topic. With respect to conditions such as believability in a loan or the voiding a nullification, however, we would not consider that included unless it was explicitly mentioned. See later 71:14. If a document states that a party will pay double any expenses, the condition is an asmachta and one would not be able to collect even if the document says it is not an asmactha etc. See later Siman 207 for the laws of asmachta. We would follow any practice that the members of the country are accustomed to, even if it was not done as the Rabbis have instituted.

Paragraph 6- If a document states that the lender has the right to go down to the borrower’s properties whether the borrower is there or not, without the permission of the court and without an evaluation or an announcement, the lender is not permitted to violate the rules of the Torah because one who lends another can only take a collateral via the court. If, however, the lender cannot find a judge that is willing to try the case, he has permission to take the law into his own hands.

Paragraph 7- If Shimon wrote for Reuven on 1 Nissan that he owes him up to 1,000 gold coins of which Shimon will admit to the exact number after the date of this document that Reuven has on him, and Shimon will write and sign with his signature the amount he admits to and Reuven produces a document dated 27 Nissan in Shimon’s handwriting confessing that Shimon owes 100 gold coins and the document was verified on 1 Iyar, Reuven may collect from the date of the original document because that is when the word spread that Shimon had an outstanding document of up to 1,000 gold coins.

Paragraph 8- If Reuven calls Shimon to court and says that Shimon confessed to him in front of witnesses that he owes Reuven a maneh in a document, and the document has now been stolen and given to Shimon, and Shimon responds that Reuven never lent him, rather Levi gave Shimon a collateral and asked Shimon to write a loan document in Reuven’s name and Levi returned the document and Shimon returned the collateral, Shimon is believed with an oath.

Paragraph 9-If one wants to disqualify a document because it was not produced in his father’s lifetime and the lender went into poverty but still did not produce the document, the document would not be disqualified but the judge must investigate well to produce the correct ruling. If the judge sees with clear circumstantial evidence that the case is one of trickery and lies, he must write that no Jewish judge may participate in this case and he will provide the writing to the defendant. See earlier 15:3. Similarly, a court must extensively investigate any old document, even if the document states that the defendant will not claim any claim against the document and the defendant accepts the condition with a cherem. The court must still investigate the matter to produce a truthful ruling.

Paragraph 10- If a document said the following, “an explanation of that which Reuven confessed in front of us that he has such and such money from Yaakov’s estate,” the document does not have the status of a legal document that allows for collection from encumbered properties, because the document does not contain a kinyan but a mere admission. It is evident from the language that the intention of the writing was solely as a memorial for what transpired and not for the sake of a legal document because they wrote “an explanation” and not “we testify on him” as we usually write in legal documents or “he confessed in front of us” as we write in admission documents. If a document did not contain the lender’s name, but simply that the borrower obligates himself to whomever produces this document that he may collect from the borrower, whomever produces the document may collect from him even if we know that the borrower never borrowed from this person, so long as the person producing the document was alive when the document was written. See above Siman 50.

Paragraph 11- If a borrower paid back the lender and the lender does not want to return the document, we place a nidui on the lender until he produces the document because he violates a negative commandment of divrei kabalah. See above Siman 57.

Paragraph 12- If a document was paid back or has its lien waived, the lender must return the document to the borrower because the actual paper belongs to the borrower. See above Siman 57.

Paragraph 13- If one claims regarding his wife’s kesubah that he is an ignoramus and did not understand when the speaker read the kesubah and the tenaim, we do not listen to him. The same applies for other specifics that one can deduce from the document and we do not say that this individual did not pay such close attention, as will be explained shortly.

Paragraph 14- If one has a gift document that by law he cannot use to collect with, and the other party demands we force him to return the document, we do not force him.

Paragraph 15- We carefully analyze the words of the document and rule based on that analyzation. We do not say that this party is not so learned and thought that this would have been the ruling in such a case and therefore wrote in that language.

Paragraph 16- There are those that say that where a party makes a condition with the other, we do not follow the written text, but the intention of the parties.