Siman 41

One who holds a document and sees that it has become worn and is about to be completely erased, brings witnesses over it—whether those who are signed on the document or other witnesses who recognize the signatures and know what is in the document—and brings them to beit din, and they testify before them, and the beit din performs a validation for him. And so too if it was completely erased, since the witnesses know what was written in it, they testify before beit din and they perform a validation for him. And they may testify this testimony even not in the presence of the borrower, and even if it was completely erased; for if we were to require waiting for the borrower, perhaps they will forget the matter and the lender will suffer a loss. And they permitted this just as with those who wish to go to a province overseas, as was explained in siman 28, that they receive testimony not in the presence of the opposing party [Urim VeTumim]. And when the document is not yet completely erased, they do not actually need witnesses at all, for the beit din themselves can read it [Sma]; however, it is better for the lender to bring witnesses, for perhaps by the time he arrives at beit din it will be erased to the point that the beit din will not be able to read it. But the witnesses themselves, even the witnesses signed on the document, are forbidden from making a new document themselves; and even if the document was erased in their presence, the witnesses do not have the power to write a document, whether with the original date or with this date, without the command of the borrower and the lender. But beit din has this power. And the reason is that since the witnesses performed their mission the first time, they no longer have the power to perform any mission without the command of the parties. Therefore, if they erred in their first writing and it was not written properly, they may write it again, since they have not yet performed their mission.

That which we have said, that the beit din performs an authentication for him when it has been erased, is specifically when it is known through witnesses that it was erased by accident due to some cause or because of its age. However, as long as it is not clarified that it was erased due to a cause, they do not perform an authentication for him, for we fear that since he was not careful to guard the document and left it in a place where it was liable to be erased, perhaps it is a repaid document. Therefore, without the borrower, one should not perform an authentication in this case, and all the more so if it became known that the lender erased the document of his own will, we certainly say it is a repaid document.

How is the validation performed? They write another document in this language: We, the beit din of so-and-so, so-and-so, and so-and-so; so-and-so the son of so-and-so produced an erased document before us for such-and-such an amount, and its date was such-and-such a day, and so-and-so and so-and-so were its witnesses. And they are also the witnesses that the document was erased. And if the witnesses of the erasure are other witnesses, they must mention them in the document, that so-and-so and so-and-so testified regarding the erasure of the document and that such-and-such was written and signed in it. And the reason they must mention them is so that the borrower can confront them and disqualify them if they testified falsely [Sma]. And the judges sign on the document, and this document has all the power and validity of the first document.

In siman 46 it will be explained that every shetar requires kiyum beit din, and then the borrower will not be able to invalidate it with a claim of forgery or other claims that will be explained there. One of the methods of kiyum is that the witnesses of the shetar come and testify, each one saying, "This is my signature," or that two others testify regarding their signatures. It will be explained there that according to the opinion of the Rambam, when the witnesses of the shetar testify, they must also acknowledge the essence of the matter in their testimony, such that each one says, "And I am a witness in this matter." Even according to the opinion of those who disagree there, that it is only necessary to testify regarding their signatures, nevertheless each one must testify regarding the signatures of both of them. When others testify, it is sufficient that they testify regarding their signatures, even according to the opinion of the Rambam. Now, regarding this erased shetar that comes before the beit din, if the lender wants there to also be kiyum beit din so that the borrower is not believed to invalidate the shetar, the beit din, when receiving the testimony from the witnesses of the shetar themselves, requires that each one testify regarding both of them that this is their signature, or according to the opinion of the Rambam, that each one say, "And I am a witness in this matter." Then it is established like all shetarot established with a hanpak. And if other witnesses testify, even though in other shetarot it is sufficient that they testify regarding the signatures as I have written, nevertheless here, where the shetar was erased, it is like new testimony and requires derishah ve-chakirah as we explained in siman 28, which is that they testify one not in the presence of the other [Netivot HaMishpat]. Therefore, even though the beit din does not mention all this in detail, yet if they wrote, "And we attended to the testimony of the witnesses and it was found to be consistent," he collects with this shetar and does not require another kiyum, for the borrower is not believed to challenge it; since the beit din wrote this wording, they presumably acted according to the law of kiyum, for if not so, why did they add these words? And if they did not write this wording, the lender will afterwards need to bring proof when the borrower challenges it, like every shetar for which we require kiyum, and when he does not bring proof, it is like any shetar that is not established. Consequently, we learn from this that if the shetar is not completely erased, such that they are able to read it, and other witnesses testify regarding their signatures, then even if they did not write thus, it is an established shetar, for this is the kiyum of all shetarot [as mentioned above].

There is one who says that the beit din must write in the confirmation that they tore the first deed, for if they did not tear the first, it is invalid, as we fear perhaps two sets of witnesses will stand over the erased deed who knew what was written in it, and he will go with each set to a different beit din and have two deeds in his hand, and he will collect and then collect again. Therefore, the beit din should be careful to mention that they tore the first. And even though even if they did not mention this, presumably they acted according to the law and tore the deed, as we do not suspect a beit din of erring, nevertheless, in order that there be no doubt in this, they should be careful to write so [Shach]. And therefore, regarding a deed of gift or a deed of sale in which it is explicit that there is no responsibility, which was erased, they write him another even though the first was not torn, for there is no concern in this since it is for a specific land. And this is specifically when there is no responsibility in the deed of gift, but when responsibility is written in it, and likewise in deeds of purchase and sale, they must tear the first, for there is a concern that he will seize from two buyers when they seize the land from him and both of them will make a collusion between them [ibid.], or they should write that this deed was not written to seize with it from encumbered properties nor from a debtor, but only to establish this land in the hand of the recipient of the gift or the buyer so that the giver or the seller will not remove it from his hand. But in a deed of loan, it is impossible to write so, for the essence of the deed is only to collect with it, but a deed of sale and gift, the essence of the deed is to establish this land in his hand. However, they must be careful in a gift as well that they write from the first date and not from the time the beit din writes for him, because we fear perhaps after the gift the recipient went back and sold it or gave it to the giver with a complete kinyan, and afterwards he will produce this deed of confirmation and say that he went back and gave it to him as a gift afterwards.

One who comes and says his shtar chov was lost and requests from the beit din that they write him another shtar, even if he brought the witnesses of the first shtar and they testify that they wrote and gave it to him—and there is no concern that perhaps he wrote it to borrow and did not borrow—and even if he brought witnesses that the shtar was lost to him, nevertheless the beit din does not write him another shtar, for we fear perhaps the first will also be found and he will collect twice, as I wrote in the previous section. Unless witnesses testify that the shtar was burned or the like, such that it does not exist in the world at all, then they write him another shtar. And we do not fear perhaps he will have several sets of witnesses that the shtar was burned and he will collect with each set from a different beit din, for in truth, when he pays him based on witnesses that the shtar was burned, the lender will write him a shover, and when he comes to collect another time, he will produce this shover showing that he paid him. Therefore, that which we said—that even if he brought witnesses that the shtar was lost they do not write him another shtar lest the first shtar be found—there is no prohibition except if the beit din does not inform the borrower, for then there is a concern perhaps the first shtar will be found and he will collect with it first, and it will not occur to the borrower to request from him a shover since he returns the shtar to him, and he does not know that it was lost and that the beit din wrote him another shtar. But when the beit din informs the borrower, they may write him another shtar, and the borrower will be careful when he pays him to receive from him a shover. Therefore, a beit din should be careful when the lender brings witnesses that his shtar was lost to inform the borrower [Shach]. And even though there is a concern perhaps he will collect from orphans and they will not know of this, yet it is not in our power to cause the lender to lose his debt in a case where he was not negligent because of such concerns [as mentioned above]. But if he did not bring witnesses that it was lost, the beit din does not attend to him, lest there be some deception in the matter; but when he brought witnesses, they are obligated to attend to him so that he does not lose his debt. And therefore, a beit din should not write a copy of any shtar unless they see that there is a need for it, such as if it was erased or burned or lost with witnesses. And if one brought a transcript of a shtar to a beit din and the reason why they wrote it was not written in the transcript, the beit din does not collect with it until he produces the body of the shtar, for we fear that those who wrote the transcript for him erred, and the borrower will come to harm in that he will collect from him twice; for if they had not erred in this, they would have mentioned in the transcript the reason because of which they wrote it.

And all this is regarding deeds of loan or deeds of sale and gift that contain a guarantee, but a deed of gift that does not contain a guarantee and a deed of sale in which it is explicitly stated that it was not sold with a guarantee, if he says that his deed was lost, even if he did not bring witnesses that it was lost from him, they write it for him, as there is no concern in this, and as I wrote in section 5. However, for no need at all, such as where he does not say that his deed was lost but rather requests another copy, they do not transcribe for him even in sale and gift, for they do not transcribe any deed without a need. But for a slight need they do write, such as in a deed of a will in which gifts are written for several people, and one of them came to beit din so that they would write for him alone his portion on a separate deed so that he would have a separate deed in his hand, they write it for him, as there is no damage in this; for a deed of a will is not for collection from purchasers, as it is not a deed, and also the orphans can say "we have paid," and there is no concern that he will collect from them twice. And that which was explained in siman 255, that a deed of a will is considered a complete deed even to seize encumbered property with it, is not similar to this deed of a will, for there it is dealing with a case where the person facing death himself commanded the witnesses to write a deed for him and to grant him acquisition, only that they wrote it in the language of a will, and that is a complete deed. But here it is a deed of a will where the witnesses write what they hear from the mouth of the person facing death, and this does not have the law of a deed at all [Shach, end of siman 253], like a will that one writes to his heirs, where certainly if one of the heirs comes to request from beit din that they write his portion for him, they write and give it to him.

And similarly, a loan document that is not in the hand of the lender and is deposited in the hand of a third party, where both of them deposited it in his hand, and the third party informs that it was lost, even if he did not bring witnesses, they write him another document. For in this case there is no concern that perhaps the borrower will find it, since it was not lost from his hand and he does not know the places where it was lost, we do not concern ourselves that perhaps he will find it. And we believe the third party even though he did not bring witnesses [as mentioned above]. And similarly, if it is known that the lender deposited the document in the hand of another, and the lender brought witnesses that it was lost from the hand of that person with whom he deposited it, they write him another document even when they do not inform the borrower, and they inform the bailee that they wrote him another document, for if not so, there is a concern that perhaps the bailee will find it and return it to him and he will collect with it [Netivot HaMishpat]. But to inform the borrower because of the concern that the lender will find it, we do not concern ourselves, for since it was not lost from his hand and he does not know the places where it was lost, we do not concern ourselves that perhaps he will find it.

And so too, when the borrower is in a distant land and the lender must go there to collect his debt, and the lender fears perhaps his document will be lost on the way, he may come to the beit din and they write for him another document. And he leaves his document in the hand of the beit din in his city, and they write all of this in the transcript of the document, that for this reason they gave the lender a transcript. And then the beit din in the place of the borrower shall inform the beit din in the place of the lender when he pays him his debt, and then the beit din shall tear the first document that is in their hand. And if he came and said that the transcript was lost on the way, they give him another transcript even if it is not known by witnesses that it was lost; and we do not fear perhaps he will collect with the two transcripts, for when he collects with the transcript he must seek a receipt and he shall write it for him [Netivot HaMishpat]. However, the body of the document they do not return to him unless he brought witnesses that it was lost on the way; and we do not fear perhaps he will find it, for when it is lost on the way, presumably he does not search for it [ibid.].

That which we have explained, that regarding deeds of sale and gift with responsibility one must also be careful not to provide a form unnecessarily, this refers to when they write in the language of a deed. However, when they write letter by letter copied from the deed, and they write in it that it is a copy of the deed, and this does not have the law of a deed at all regarding the matter of collecting from encumbered properties, for it is evident that the first deed is intact—therefore, for such a copy, a beit din is not required, and even witnesses may copy this, provided only that they are valid witnesses. But regarding a deed of loan, they do not write without a beit din, as we have explained [see Urim VeTumim].

One who had a debt against his fellow via a document and came and said that the document was lost, if he does not have witnesses to this that it was lost and there are no witnesses here who know at all of the document, if the borrower says "the matters never occurred" (lo hayu devarim me'olam), that there was never a document from me and I never borrowed from you, he is believed and shall swear a hesset oath. But if there are witnesses that he had such a document and the borrower says "the matters never occurred," he is established as a liar based on their testimony and must pay. However, if he says "I paid," he is believed with a hesset oath even if the witnesses of the document itself are extant, and even if they performed a kinyan from his hand at the time of the loan, and even if the document was for a set time and it is still within the time—for even in a loan by word of mouth one is not believed to say "I paid"—nevertheless here, where he had a document and it is not under his hand and he has no witnesses that it was lost, it is worse, for we concern ourselves that perhaps he paid him and therefore he did not guard it, and therefore the borrower swears a hesset oath and is exempt. And more than this, even if the document was produced from the hand of another, in that the other found it, and the borrower claims "it fell from me after I paid," even though it is within its time, he swears a hesset oath and is exempt; for since the document is not in the hand of the lender, we do not say the presumption that "a person does not pay within his time," because since it fell, its status is weakened and it is worse than a loan by word of mouth. But if the lender deposited it with another and the document is produced from the hand of the depositary, the borrower is not believed to say "I paid and it fell from me and you found it," and even though he did not deposit it with him before witnesses, and even though he is not a formal third-party trustee (shlish) since the lender alone deposited it with him, nevertheless he is believed with a migo that he could have returned it to the lender, as will be explained in siman 56.

A city that was conquered by a siege and was destroyed or burned, and it is known that Reuven had documents there, they are presumably in the status of being lost, and the beit din writes other documents for him based on the witnesses who know of those documents. And even if the borrower stands and protests, they do not heed him; however, everything is according to the nature of the destruction or the fire, and according to what the beit din sees in this matter.