Siman 238

One writes a deed for a seller who sold his field to a certain person even though that person is not before us, for one may acquire a benefit for a person in his absence. This is provided that it is written in the deed that he immediately transferred the field to him with a kinyan and granted him the field so that he would not be able to retract; and this is a "deed of transfer" which transfers the field to him from now with a kinyan. For if not so, there is a concern that perhaps he wrote the deed in Nisan and did not give it until Tishrei, and prior to Tishrei he sold it to another, and by law it belongs to the other, yet now he will deliver the deed to the first person; and when the two deeds are produced, beit din will award it to him because his date is earlier. But with a deed of transfer, it is his by law since he transferred it to him from Nisan. However, according to the opinion in siman 39 that "his witnesses acquire for him via their signatures," for upon delivery of the deed into the hand of the buyer he acquires from the time of the signing of the witnesses, they may write it even without a deed of transfer, because when he delivers it to him in Tishrei, he will acquire from Nisan. Similarly, if the seller testified about himself that the buyer already acquired through one of the methods of kinyan other than a deed, such as with money or chazakah—and according to this the field is already his and the deed is merely for evidence—they may write it in any case, provided that the witnesses recognize the name of the seller written in the deed as being the man standing before them. For if not so, there is reason to fear that he might write the name of another, stating that that other person sold his field to a certain person, and that person will then seize this field from the hand of the other. But as for the buyer, they do not need to recognize who he is. However, for the buyer himself, one does not write a deed even if they recognize him, unless the seller commands to write it. And even if the buyer says, "Write for me that I bought such-and-such a field from so-and-so, and the deed shall remain with you until the seller comes and admits before you," they do not listen to him. Furthermore, even if he only requests that they write for him that they heard from him that he bought such-and-such a field from so-and-so—which is not a deed at all, for they are not testifying to the act at all but only that they heard from the buyer, and there is no substance to such a deed—nevertheless, it is forbidden for them to write it, because through this a rumor will spread that so-and-so is selling his properties and his properties will be depreciated, and the like [Sma]. And there is one who says further that even if the witnesses performed a kinyan sudar from the seller that he transferred his field to a certain person in the absence of the buyer, and afterwards the buyer came and requested of them that they write the deed for him, they do not listen to him; for even though we establish that an ordinary kinyan is intended for writing, nevertheless, this is only in the presence of the seller. And there are those who disagree on this, for there is no proper reason to prevent the writing of the deed [Shach].

That which has been explained, that the witnesses must recognize that this is the seller, nevertheless they do not need to recognize the field or the house that he is selling—that it is his—for there is no concern in this. For even if he should record another field or another house in his name, he has done nothing, as the owners will clarify that they are not his. For behold, the witnesses do not testify that it is his, but rather testify that he sold it or gave it to so-and-so; and if it is not his, his sale and his gift are nothing. Therefore, one who comes to witnesses and says, "A house that I have in such-and-such a place, I am giving it to so-and-so," even though the witnesses do not know if he has a house in such-and-such a place or not, they may write, since they are only testifying to the gift; and if he does not have one, his gift is automatically void. Nevertheless, if the witnesses know that it is not his but belongs to another, they shall not write for him unless he brings them a document from the beit din of that place stating that this person acquired it from the other. And automatically, if the house is in their city, it is proper for the witnesses to know that it is his house; therefore our teachers cited this law regarding a house in another place, for in another place they may write ab initio even if it is not known to them at all, which is not the case in their city [so it appears to me].

There is one who says that this matter of writing a deed for the seller even if the buyer is not with him is specifically when he commands to write in the deed that he has already received the money from the buyer; but without this, they do not write except with the knowledge of the buyer, for perhaps he does not desire that purchase at all, and who says that this is a benefit for him such that they should write it not in his presence. Therefore, if the witnesses erred and wrote a deed of sale for the seller without the receipt of money, when the seller sues the buyer in beit din to pay him the money, the seller must bring proof that this sale was with the knowledge of the buyer. And there is one who is even more stringent, that even if he commands to write that he received the money, they should be careful not to write in the deed language that would imply it was written with the knowledge of both of them, for perhaps it is not pleasing to the buyer that a rumor go out about him that he bought land for whatever reason he may have; and they should write everything regarding the seller, how he sold to so-and-so of his own will, and they should not write that so-and-so bought from so-and-so of his own will. And there is one who disagrees with all of this and holds that they always write for the seller even if he did not testify about himself that he received the money, for since it was not explicitly written that the buyer agreed to the acquisition, this deed does not compel the buyer to acquire, as everyone knows that they write a deed for the seller himself, and for the buyer it is only for proof if he desires and not to compel him. And likewise, the buyer is also believed to say that he gave the money. And some say that this is only in a deed of proof, but in a deed of acquisition, the buyer is not believed to say "I paid" [Netivot HaMishpat], and see what I wrote in siman 191. And a deed in which the sum of the purchase is not written at all, only the matter of the purchase, how this one sold to that one such-and-said house or such-and-said field, the deed is valid, for the sum of the purchase is not a hindrance. And the buyer pays the scribe's fee even in the case of one who sells a field because of its poor quality, for nevertheless, there is more benefit to the buyer [Rashbam 168].