Siman 42

One may not write a document of indebtedness on something that can be forged, and if one wrote it upon such, it is invalid even to collect with it immediately. Even though it could be said that since he comes to collect immediately, if there were any forgery the witnesses would remember, nevertheless it is invalid, for it is not called a "document" unless it is fit to endure for many days, as it is written in Jeremiah: "so that they may endure for many days." This has only the status of an oral loan, for since it is not fit to endure for many days because they can forge it and the witnesses will forget the matter, therefore the name of "document" is not upon it. This applies specifically to a document of a loan or documents of sale and gift where the kinyan was effected through another means and not through the document, and the document was written for evidence. However, documents of acquisition—meaning that the kinyan was effected through this document in a sale or gift, where the document does not stand for evidence but rather to acquire through it, as they write in the document: "this field is sold or given to you," as will be explained in siman 191—it is valid. For this document does not stand for evidence but for kinyan, and it does not need to endure for many days, for after they write this document of kinyan, they write another document for evidence, like the document of Jeremiah which was for a sale but was written for evidence, as is explicit there in the verse. And any document that is not made according to the enactment of the sages should not be made ab initio, even if there is no reason to invalidate it; even more so regarding something that can be forged, where there is a complete reason to invalidate it, nevertheless it should not be made. And if one made it, it is valid ex post facto, except for a "tied document," which we do not practice nowadays, and the witnesses are signed on it from the outside—even ex post facto it is invalid, because the signatures of the witnesses must be on the inside [Shach].

It may be written in any language and in any script, provided that the scribe is meticulous in that script and in that language so that there shall be no change in it and so that they will not be able to perform any deception in it. And he shall be careful in its writing, just as we will explain further regarding the care required in the holy tongue and in Ashurit script, so that the lender cannot add a letter or subtract a letter for his benefit; so too shall the scribe be careful in every script and in every language.

Among the regulations of documents is to examine the vavs and zayins of the document, that they should not be crowded between the words, lest he forged and added a vav or a zayin; and they should not be spaced out, lest he erased one letter, such as a heh or a chet, and left one leg in the place of a vav. And regarding everything similar to this, they are meticulous and careful, and so too in every script and language. Therefore, the scribe must be careful in the writing of the document that its letters be similar to one another, and the script should be straight and equal in all its words, so that he does not space the letters from one another excessively, and let him not crowd the script excessively. And he should write equally throughout the entire document, so that it should not be in one place slightly crowded and in one place slightly spaced, for even though he could write the entire document with such crowding or such spacing, nevertheless, if there is a change in one place in the document more than in another place, it can lead to corruption, as he might add some letters in that space and it will not be noticeable, for it will be equal to the somewhat crowded words in the document [Sma]. Therefore, the witnesses are not permitted to sign until they examine all its letters thoroughly. And therefore, when a document comes before the dayan, he must examine all its letters and compare letter to letter, and if he sees in it any change, he shall not collect with it until he investigates the matter thoroughly. And anything that we can attribute to an erasure—that is, that the holder of the document erased this place—we attribute it so, and the document is invalid. And if it is necessary to coerce the holder of the document and penalize him so that he will confess, he should do so in order that the judgment should emerge in its truth. And even if the borrower did not plead, it is incumbent upon the dayan to see and supervise the document, and if he senses in it any doubt, he shall plead on his behalf. And some say that specifically when the holder of the document comes to extract from heirs or from purchasers, we plead on their behalf, as we hold that the beit din pleads for an heir and for a purchaser; but where he comes to extract from the borrower or from the seller and from the giver themselves, and they do not plead that there is a flaw in the document, we do not plead for them, and the beit din shows them the document, and when they do not sense it, the beit din also shall not plead for them. And these words apply when they admit to the entire act of the document, but if they deny certain things in the details of the document, even though they do not plead that a forgery was made in the document, since they deny some matter, the dayan is obligated to plead for them when he senses some forgery in the document, even according to this opinion [Shach]. And such is the primary rule in law.

One must be careful not to write at the end of the line from "three" until "ten," lest one forge it and make from "ten" [eser] "twenty" [esrim], and from "three" [shalosh] "thirty" [shloshim]. And if "thirty" is written at the end of a line, we do not say perhaps "three" was written and he made it "thirty," for there is a presumption upon the witnesses that they acted properly and did not write "three" at the end of the line [Netivot HaMishpat]. And if he wrote in the masculine form "shlosha" or "asara," it is fine, for there is no concern of forgery; for if he forges it to make from "shlosha" "shloshim," he would need to erase the letter "Heh" and the erasure would be recognizable. Nevertheless, it is proper to be careful even in this, lest he erase the "Heh" and it not be so recognizable [Shach]. Therefore, also with the word "shmona" [eight] one should be careful, lest he make it "shmonim" [eighty] and the erasure of the "Heh" not be so recognizable. However, post facto, we do not disqualify a deed when "shmona" or "shloshim" is written in the masculine form. But most numbers are constantly written in the feminine form, and therefore when the word "shalosh" or "arba" or "hamesh" until "eser" happens to come at the end of a line, he repeats the matter twice until it comes within the line, and then if "shloshim" is written at the end of the line, it will be clarified that he forged it, and the proof is from the fact that in the middle of the line "shalosh" is written. And even according to what will be explained, that when what is written above contradicts what is written below—for example, if above is written "maneh" and below "two hundred"—we follow the lower one, nevertheless, when it is found written above "shalosh" and below at the end of the line "shloshim," we do not follow the lower one, because it appears more likely that he forged it to add the "Yod" and the "Mem," whereas from "maneh" one cannot add to "two hundred" [as above from the Shach, and not like the Netivot HaMishpat]. And so too they shall be careful not to write the number in letters, such as for "two" they write "Bet" and for "four" "Dalet" and the like, for he could forge it to make from "Bet" a "Khaf" and from "Dalet" a "Resh." And if they did not do so, it is a deed that can be forged and is invalid. But if he wrote gematria or acronyms of things that are impossible to forge, it is valid; for example, if "Yod-Bet" [12] is written, there is no concern that perhaps "Bet" [2] was written and he added the "Yod," for if so, the witnesses would not have signed when "Bet" was written, and also it would be found very crowded [Shach]. And nevertheless, ab initio they should be careful even in this, such as with the letter "Gimel," where there is no concern of making it into another letter, for perhaps he distanced it a bit more from the previous word until the "Yod" could stand in the space. Therefore, it is proper that no acronyms or gematria be found in deeds.

If there was written in it one thing above and another thing below it, if it is possible to uphold both statements without difficulty [Shach] so that they do not contradict one another, we uphold both of them. But if they contradict one another, such as if it is written above "a maneh" and below "two hundred," or vice versa, we follow the lower one, for certainly it is a retraction of the upper one. This is provided that the benefit of the holder of the document was not in the last line, because we do not learn the benefit of the holder of the document from the last line, as will be explained in siman 44, and in a manner where "sharir ve-kayyam" is not written in it. However, to extract from the holder of the document, we learn even from the last line and even if "sharir ve-kayyam" is not written in it, as will be explained there. And if the sum of the bottom was completely erased, the whole thing is invalid, for it is possible that there was written below only one dinar. But if there were written above many sums and below is written the total sum and they do not equal each other, in this we do not follow the lower one, for the mind leans more toward the possibility that he erred in the total calculation, and we follow the detail above. And if it is written in the document "one hundred which are two hundred" or "two hundred which are one hundred" and we do not know the explanation—if the intention is one hundred large coins which are two hundred medium coins, or one hundred medium coins which are two hundred small ones, and similar doubts—the hand of the holder of the document is at a disadvantage, and he only collects the lesser of the two, for the burden of proof is upon the one who seeks to extract from his fellow. And if the holder of the document claims with certainty that the explanation is to his benefit and that they spoke thus, and the witnesses do not remember, the one against him shall swear a shevuat hesset. And similarly, a document in which it is written "and they performed a kinyan from him" and it was not written "with a vessel fit to perform a kinyan with it," then if it is a matter that is acquired through kinyan sudar, it is valid, for presumably it was done according to the manner of most kinyanim. And if it is a matter that is not acquired through kinyan sudar, such as currency, we do not say that presumably it was through an effective kinyan like meshikhah and the like; rather, the hand of the holder of the document is at a disadvantage and it is invalid [Taz].

If one letter was erased from the lower part in the name of the borrower or the lender, such that its matter can be understood from the upper part, we learn from it. For example, if it is written above that he is indebted "to Chanani" and below it is written "to Chanan," the lower part shall be learned from the upper part and it shall be given to Chanani, for it is the way of scribes to omit or for one letter to be erased. And specifically a deficiency in names or in other matters, but a deficiency or an erasure in the sum of money, even of one letter, we do not learn [Netivot HaMishpat]. And regarding two letters in any matter we do not learn, for example, if it is written above "Chanani" and below "Chan," and even when there are six letters in the upper word and in the lower part only two were erased, we do not learn from the upper part. And since we do not learn and it is known that it was erased, the shetar is invalid. But for one letter we do learn, even if the entire word is only two letters and we need to learn half the word. And if there was a deficiency without an erasure, where above he wrote "Chanani" and below "Chan," it is certainly a retraction, for the scribe would not have erred by two letters, and it shall be given to Chan. And if above it is written "Chanan" and below "Nani," it is a legal doubt whether we learn from one another—to say that above the yod is missing and below the chet is missing and it is as if "Chanani" is written—or not. And the burden of proof is upon the claimant, and it shall be given neither to Nani nor to Chanani. And if they wrote a power of attorney to one another they may collect, but Chanan even with a power of attorney may not collect [Netivot HaMishpat], for according to this one must say that in the lower part he omitted the first chet and added a yod at the end for no reason, and there is no logic to say so.

The general rule in these matters is that it is the way of the scribe to shorten a single letter or for it to become erased on its own sometimes without intent, and therefore we learn from the upper text, which is not the case with two letters. Therefore, if two letters were missing and not written at all, we say that certainly the borrower commanded the scribe to write thus because he ultimately did not borrow from the one explained above, such as Chanani, but rather from Chan, and it shall be given to Chan. However, when these two letters were written initially and afterwards were erased, certainly they were erased with intent, and we do not know if he erased them because of a retraction, that he borrowed from Chan, or if he erased them in order to invalidate the deed. For this reason, neither of them may collect with it. And all this is specifically when the deed is found in the hand of a third party and he does not know to whom to give it. The same applies if another man produced a debt deed and it is written therein above that the name of the borrower is Chanani and below Chanan, he collects from Chanani and not from Chanan. And if it is written below Chan, he shall collect from Chan and not from Chanani, for certainly he retracted from the upper one and borrowed from the lower one. But when the change is in the name of the lender and the deed is in the hand of the lender, even though it is written therein above Chanani and below Chan and the deed is in the hand of Chanani or in the hand of Chan, he collects with it whether in the case of an omission or in the case of an erasure, since the deed is in his hand [Sma]. But the Shach and the later authorities disagree on this, that even when the deed is in the hand of the lender, he does not collect with it in the case of an omission of two letters. And it appears to me that the beit din must greatly inquire and investigate this from the scribe and the witnesses and from the litigants, and they shall act according to what appears in their eyes after the inquiry and investigation and according to their understanding in this.

And so too regarding measures and weights, when there is a discrepancy in a document from place to place, the holder of the document is at a disadvantage. For example, in the days of the ancients, there was a measure that held a seah and a half and a small measure that held a kav and a half, and these measures were called by an allusion: for the large one was called "sefel," which is an acronym for "seah u-falga" (a seah and a half), and the small one was called "kefel," which is an acronym for "kav u-falga" (a kav and a half). And if it is written above "sefel" and below "kefel," one follows the lower, and he only collects a "kefel." And even if it is written in it above "kefel" and below "sefel," though in every place one follows the lower, nevertheless here he only collects a "kefel," because we concern ourselves that perhaps it was also written below "kefel," only that a fly stood on the leg of the "kuf" of "kefel" and erased it, and it became a "samekh." And so too anything similar to this in every script and language, for the general rule in our hands is that the holder of the document is at a disadvantage. And the dayan must understand these matters well, for it is impossible to specify every single detail in such matters.

In all these laws that we have explained, where the hand of the owner of the house is at a disadvantage, if the owner of the house seized movable property—even when witnesses know that he seized it and he does not have a migo that if he wanted he could have said "I did not seize it"—since he claims with certainty, we do not have the power to remove it from his hand. However, the seizure of land is not considered a seizure, for land remains in the possession of its owners. And even if he seized the produce of the land, we remove it from his hand when the doubt concerns the land itself; for since the land is not subject to seizure, its produce also cannot be seized. But if the doubt is not concerning the land itself but rather another matter, the seizure of produce is like the seizure of other movable property [Netivot HaMishpat].

Since the reason why the hand of the holder of the document is at a disadvantage is because the opposing party is the possessor, therefore regarding a receipt, when a doubt arises, we do not say in this case that the hand of the holder of the receipt is at a disadvantage. On the contrary, the holder of the receipt is the possessor, and therefore the hand of the holder of the receipt is at an advantage against the holder of the document. Any doubt that arises in this, the holder of the document cannot extract from the hand of the holder of the receipt, and the claim of the holder of the document against the holder of the receipt remains like an oral claim. The general principle in this matter is: one who, without the document, they would not be able to collect from him because there is no obligation upon him, then naturally when a doubt arises in the document, we do not have the power to extract from his hand, since the entire obligation is by means of the document and there is a doubt in the document; naturally, the holder of the receipt has the advantage, as there is no power in the hand of the holder of the document to extract from the holder of the receipt. Therefore, if the holder of the document seized movable property, for which seizure is effective since he claims with certainty, we do not have the power to extract it from his hand. But if the obligation is clear even without the document, in a manner that even if there were no written document there would be an obligation upon this man to pay, and he comes to exempt himself due to doubts that exist in the document in the hand of the opposing party, in this case it is not applicable to say the hand of the holder of the document is at a disadvantage, and we obligate him to pay. Since the obligation existed even without the document, the doubt in the document does not exempt him from the certain obligation. One must guard this rule, for it is a great principle [see in the Shach].

We do not say "the hand of the holder of the document is at a disadvantage" except in all those cases mentioned above where the document is not completely nullified. However, in a matter where the document would be completely nullified, we do not say "the hand of the holder of the document is at a disadvantage." For example, if it is written in a document: "So-and-so is obligated to so-and-so a maneh to be paid on Pesach," he must pay it on the first Pesach, and he cannot say, "I will not pay it until the Pesach that occurs after several years." And so too in any similar case. For in truth, we only wrote this matter of Pesach as a mere example, as regarding this case of Pesach there is no doubt at all, for according to the essential law it is so: that one who sets a time for Pesach or another Yom Tov, the intention is for the first Pesach or Yom Tov.

That which we have said, that in a place where the document would be voided we do not say "the hand of the holder of the document is at a disadvantage," this is specifically when the doubt is regarding the intent of the giver or the borrower, as we have written regarding that case of "Pesach" and similar matters. In such a case we do not say "the hand of the holder of the document is at a disadvantage," for if so, his document would be voided unlawfully, as the document is valid and he would be pushing it aside forever; therefore, the hand of the holder of the document is at an advantage. However, where a doubt arose regarding the essential validity of the document, whether it was written according to the law or not according to the law—such as if a phrasing was written that is not effective for a gift and a doubt arose regarding this—we also say "the hand of the holder of the document is at a disadvantage" and the document is voided, and we say that they erred in the law of its writing, since there is a doubt regarding the essential validity of the document.

If there were written in the document superfluous phrasings, such as is the current custom to write "not as an asmachta and not as a mere template of a document," there are some of the great authorities who wrote that since it was written so, we say regarding any doubtful phrasing that the hand of the holder of the document is on the top, for it was written so specifically so that his hand would not be on the bottom regarding any doubt that might occur in it. And there are some of the later authorities who disagree with this, and it is difficult to extract from the possessor through this strengthening of power that was written "not as an asmachta," etc., or other superfluous phrasing. Therefore, the dayanim shall act according to their understanding in this particular matter and according to the depth of their intellect regarding the writing of the document. However, even according to this opinion that from the perspective of the general rule of superfluous phrasing the hand of the holder of the document is not on the top, nevertheless, if some detail was written within the document that according to the understanding of those who hear this phrasing implies a strengthening of the power of the holder of the document, we judge it so, even to strengthen the power of the holder of the document. And for example, such as Reuven who had a house with several upper stories upon the house, one upper story upon another upper story, and he mortgaged this to Shimon, and it was written in the document that he mortgaged to him from the bottom of the house until the end of the upper story, and afterwards Reuven claimed that he only mortgaged to him one upper story that is upon the house, and the scribe says that his intention was for all the upper stories, and so it appears according to the understanding of those who hear this phrasing—in this, the hand of the holder of the document is on the top [Sma], and similarly in other specific matters.

If it is written in a document of a certain currency that so-and-so owes so-and-so such-and-such coins, and that amount was erased and is not recognizable, he owes only two of that currency. If the lender claims more, the borrower swears that he only owes him two. If the borrower admits to more than two, and the lender claims even more than what the borrower says, the borrower is obligated to swear a Torah oath according to the law of one who admits to a part [Netivot HaMishpat]. For when he only admits to two, this is not "admitting to a part," as the minimum of "coins" is two, and this is explained in the document; and regarding that which is explained in the document, it is not included in the category of an admission for the reasons that will be explained in siman 75 and siman 87. However, that which he admits to more than two constitutes admitting to a part, and therefore he is obligated in a Torah oath.

If it was written in a document "selaim," and the lender says five and the borrower says two, he gives him two and swears a shevuat hesset regarding the remainder, as has been explained that anything clarified in the document is not considered a partial admission. Therefore, if the borrower says three, he is liable for a Torah oath. And if the borrower seized more than two, if he seized without witnesses, he is believed with a migho of "I did not seize," and if he seized with witnesses, we extract it from him. And so too in the previous section regarding a case where it was erased, also if he seized we extract it from him, for we always judge in this to weaken the power of the lender [Netivot HaMishpat].

If it was written in a document, "Ploni borrowed from Ploni silver," he gives him a piece of silver of the smallest of weights in that place. If "a coin of silver" was written in it, he gives him the smallest silver coin circulating in that place; and even if a silver perutah circulates in this place, he only gives him a perutah. And if the place where he borrowed from him is not clarified in the document, he gives him the small silver coin that circulates in that place where he sues him [Netivot HaMishpat]. And if "silver denarii" or "denarii of silver" is written in it, he gives him two silver denarii. And if "silver in denarii" is written in it—according to the time of the sages of the Gemara, for "denari" was called of gold and "denarin" was called of silver—he gives him silver worth two gold denarii. And if "silver in denarin" is written in it, he gives him silver worth two denarii of silver. And if "gold in denari" is written in it, he gives him broken gold worth two gold denarii. And if "gold in denarin" is written in it, he gives him broken gold worth two denarii of silver. And if "gold denarii" or "denarii of gold" is written in it, he gives him two gold denarii. And if "gold" is written without specification, he gives him a piece of gold of the smallest of weights in that place. And if "a coin of gold" is written in it, he gives him the small gold coin circulating in that place. And in this time, there is no distinction between "denari" and "denarin," and he gives him the smallest amount; and from this we learn to judge according to the language of the time and the place.

One who produces a shtar chov against his fellow, and written in it is a sum of one hundred dinarin or sela'im, and it was not specified which dinarin or which sela'im, large or small: if the place where he borrowed from him was written in the shtar, he gives him the dinarin or the sela'im according to the place where he lent to him. And if the place where he lent to him was not written in the shtar, he gives him according to the place where he sues him. And if, when he comes to collect according to the place where he sues him, the borrower claims that the money I owe him is smaller than the money of this place, we do not listen to him; however, if the borrower claims "swear to me," the lender swears and takes. And similarly, when the lender claims "I lent you a larger coin than this place," we do not pay heed to him; and if the lender claims "swear to me," the borrower swears a shevuat hesset. But when the place of the loan is mentioned in the shtar, it is like a certainty that he owes him from this coin, and neither the borrower nor the lender are believed to increase or decrease, and they cannot even impose an oath upon the opposing party. And even if witnesses came and said it was a different coin, if the witnesses of the shtar testify so, they are not believed, as it is like "returning and telling," for if so, they should have clarified this within the shtar. And if other witnesses testify to this, it is like "two and two" who contradict one another [see in the Netivot HaMishpat]. But if the place is not clarified in the shtar, and we explained that he must pay according to the place where he sues him, and the borrower or the lender brought proof that they were originally residing in a place where the coin is less than this or more than this, he gives him less or more, for this is clear proof, as presumably he borrowed from him the coin of the place where they were residing. And if the coin changed or was invalidated from the time of the loan until the time of payment, it will be explained in siman 74. And if it was written in it "one hundred silver" and it was not specified which silver coins, the borrower gives him according to what he desires, even the smallest silver coin circulating in that place.

If it was written in a shtar, "Ploni borrowed from Ploni one hundred and fifty adumim," the borrower is not believed to say that the hundred are not adumim but rather a lesser currency than this, for presumably the hundred are like the fifty. However, if it is written in it "one hundred and adumim fifty" or "one hundred and an adum," where it appears that the adum is not an explanation of the hundred—like that shtar brought in the Shas where it was written "six hundred and a zuz," where there is a doubt if the six hundred are isteri, a small currency, and the explanation is six hundred isteri and one zuz, or the explanation is six hundred zuz and a zuz, and he did not care to write precisely "one hundred and one zuzim"—where we rule in the Gemara that he gives him six hundred isteri and one zuz. But he cannot give him six hundred perutot and one zuz, because one does not make a sum total from perutot, but rather they are combined into isteri or zuzim. Therefore, in our time in our country, when it is written in a shtar "one hundred and an imperial," he is unable to say that the intention is one hundred and one imperials, for if so, he should have written it so; rather, the hundred is a lesser currency than an imperial. And one could say that the hundred are one hundred rendlich or one hundred silver rubles, and the burden of proof is on the claimant, and he gives him only one hundred silver rubles and one imperial. But he cannot say, "I will only give you one hundred kopeks or one hundred guilders," because since the kopeks reached one hundred, they are combined into one silver ruble, and the guilders are also combined, when they reach six and two-thirds gold coins, into a silver ruble. And similarly, one must judge in all countries according to the currencies therein.

The language that is customary to write in documents, even if it is not from the enactment of the sages but rather language that the masses are accustomed to write in that place, we follow this language. And even if it was not written, we judge as if it were written, because presumably his intention was that it should be written so, as we explained in siman 39 regarding the matter of "responsibility is a scribal error." And this is specifically when it is known that he knew of this language; but if he did not know of this, even though the masses are accustomed so, we do not judge as if it were written [Shach]. And in siman 61 more of this will be explained. And the same law applies if there is an enactment or a custom in the city that they write so in documents; even though it was not written, it is considered as if it were written.

One who raises an orphan within his home and wrote concerning him in a document "my son," or the orphan wrote concerning him "my father," or concerning his wife "my mother," it is not called a forgery and is valid, for such is the way of the world, that because he raises him, he is considered to him as a son and he regards them as father and mother. And even when they have sons, they also call him "son." However, if they have a son whose name is the same as the name of the orphan, and it was written concerning the orphan in a document "my son, so-and-so," it is invalid, for it is a document that can be forged [Urim VeTummim]. And the same law applies if he wrote concerning his father-in-law "my father" and concerning his mother-in-law "my mother," it is also valid [Sma]. And we find in a verse that David called Shaul "my father."